Legal

Ally came to me the other day upset about the TikTok case. One of her issues was that the AP was reporting that they couldn’t report more because it was “sealed”.

I found this to be unusual and went to the source to find out what is going on. What I found was somewhat different.

Ally pointed out that what I sent her, the docket, wasn’t something she understood.

This is a non lawyer’s take on reading dockets.

What is “The Docket”?

The docket is a record of a case. It contains the identifying information about the case as well as providing information on what court, panel, or judges will be hearing the case. It is relatively brief.

The biggest part is the “Proceedings and Orders”.

The Header

The header identifies the case.  In addition, it helps track the case back in history as it moved through different courts.

The title is the parties to the suit. The short title would be TikTok v. Garland. The date the case was docketed with the Supreme Court was December 18, 2024. The case comes from the D.C. Circuit Court. In the circuit court it had a case number of 24-1113.

The first entry tells an interesting story. The first is that this case was submitted to the emergency docket, sometimes called the shadow docket.

When a case is placed on the emergency docket, it is assigned to one justice. Each justice is assigned a set of lower courts that they “supervise.” In this case, the D.C. Circuit Court is supervised by Chief Justice John Roberts.

The party petitioners are TikTok and ByteDance. They have “filed a motion” which is legal speak for “asked for something.” What they have asked for is an injunction against the enforcement of <q>Pub. L. No. 118-50, div. H (2024)</q>. This is the “Protecting Americans from Foreign Adversary Controlled Applications.”

In other words, they want the courts to stop the banning of TikTok.

To pull the information about motion, I read the “Main Document”. On the website, this is a link to the PDF of the document.

Because this case was put on the Emergency Docket, they are not asking the court to decide on the merits of the case, instead they are asking for an injunction until the Supreme Court has made their final decision regarding the ban.

Entry two says that they have also requested that the court hear the case, on its merits.

The next three entries are briefs by different groups of people called “Friends of the Court”, or “amicus curiae”. These are not parties of the case but instead are people who want to stick their two-cents in.

These briefs must be filed by a lawyer who is a member of the Supreme Court bar. In some situations, the people filing amicus briefs must get permission first.

What is a brief?

Simply put, it is a written argument. The person or group that files the brief feels that they have something important to say that might change the Court’s mind.

These briefs are all going to be arguing that the Supreme Court do something.

The respondents will often not argue at this point. To argue that the Court not hear the case is to make the case more important. Since the Court prefers to take cases that are important in the broad scheme of things, arguing that the Court not hear a case is arguing for the case to be heard.

On December 18th, the application, as 24A587 on the emergency docket, was referred to the Court.

This is the Court’s normal Wednesday conference.

The Justice discuss the cases which have been referred to them and decide as a group what they are going to do.

There is a deadline of January 19th for them to issue an order or opinion.

Things Happen

The petition is granted on the 18th. This means that the case went from not existing within the Supreme Court’s system to being granted cert in 2 days.

This is what “Emergency Docket” means. It has to happen now.

Now this particular case is on an expedited track. The Justices have given a word limit on the briefs. We will see later that there are “Certificate of Word Count” attached to many filings, stating they are within the limits set by the Court.

The time is also shortened. All the primary briefs are to be filed by December 27th. This is only 9 days after the granting of cert.

The court also says when oral arguments are happening.

The court also consolidated two cases. This is why we went from 24A587 to 24-656. The two original dockets were 24A587 and 24A656.

While the court said that oral arguments were on the 10th of January in their order. The official order is “SET FOR ARGUMENT at 10 a.m., Friday, January 10, 2025.”

Things Start Moving

We start to see the Amicus briefs start to arrive. They have until 1700 the 27th to get their briefs in.

We can tell that the people interested in this case have already prepared their briefs and are submitting them within a few days.

Our first entry is an order from the clerk of the court. They are telling the filer that they didn’t do it right. The submitted their brief with a word count, but the proof of service was incomplete.

The clerk will not accept the brief until the deficiencies are resolved.

Many Briefings and Orders

Outside the amici briefs, we have a “request”, which is Supreme Court speak for “order”, to the circuit court for a complete record. There is an “appendix” which is the compendium of all the briefs filed in the lower court(s?).

While the cases are combined, both petitioners request to argue separately. It will happen on the same day, one after another.

When reading these entries, the notation “(Distributed)” means that the filing has been given to the justices.

Many briefs are filed. The justices met and on the 31st granted the petitioners motion to argue separately.

All the replies were submitted on time.

One of the amici managed to mess things up so badly that they didn’t get their homework in on time. They asked the Court for an exception, the Court said, “no”.

Interesting Entry

This is the record of the cases before the D.C. Circuit Court. The records came in to parts. One part is open to the public, they other is sealed.

Sealed information can include things like financial details, personal identifying information (think SSN), or the identity of undercover or human sources. It can also include methods that the state doesn’t want public.

The Supreme Court can decide to unseal those records, but it isn’t going to happen. There is no need.

The Oral Arguments

The quick way to find out what happened on the 10th is to read the transcript.

If you want to spend 2 hours listening, you can listen to the oral arguments

What’s going to happen?

On the 17th, the Court has its next conference. They will discuss the cases referred to them, the cases distributed to them seeking cert, and cases where oral arguments have been heard.

They will come to a conclusion.

Once they decide, they need to write the opinion. If any justices are dissenting, they have to write their dissent.

Justices can write concurrences as well. This is when the justice agree with the opinion, but not the reasoning of the majority opinion.

Once all the opinions are finished, the opinion of the court will be released.

If the justices know that it will take longer to write the opinions than they have, they can issue an injunction. The injunction will put everything on pause until the Court can issue their opinion.

Where to From Here?

The path from here is working backwards. Given the circuit court and the docket number for that court, you can look up the docket on the Circuit Court’s website.

Of course, this doesn’t always work. To answer this, we use Court Listener to look up the case at the circuit court. The link I’ve given takes you to this case.

Within the circuit court docket, we find the same type of docket. Part of what we will find is a reference to the district court case.

All the oral arguments at the circuit level are available on the web. It can be difficult to find. Court Listener is your friend there as well.

Go have some fun reading documents.

David Snope, et al., Petitioners

Next Monday we will see Snope and Ocean State Tactical granted cert or relisted.

Right now, there are 100s of lawyers writing briefs for these cases. I expect to see over a thousand pages submitted to the Supreme Court.

Bruen was distributed for Conference on 4/1/2021, 4/16/2021, and 4/23/2021. Cert was granted 4/26/2021.

The parties requested, and were granted, two extensions to file briefs on the merits.

From the time of being granted certiorari, the petitioner has 45 days to file their initial brief. The opposing party has 30 days from then to respond. Extensions may be granted at the discretion of the Court.

From there, the petitioner can file a reply brief. The opposing party can file a reply brief.

About 100 days total, if everybody stays on schedule.

The case was scheduled for oral arguments on 8/15/2021. The date for arguments was set for November 3rd, 2021.

The case was argued on 11/3/2021.

The court published their opinion on 6/23/2022 with the judgement being issued on 7/25/2022.

Because the case was conferenced in April, the case wasn’t heard in the 2021 term. We are teed up to have the opinion issue for these cases in June 2025.

In the order list for 2025-01-13 we have information on our three Second Amendment Cases.

Gray v. Jennings on how preliminary injunctions should be handled, DENIED.

Given that they were denied, I expect that we will see the case GVR once our Second Amendment case is heard.

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Correction: They were denied Cert. It cannot then be GVR. This case will go back to the district court to move past the preliminary injunction stage.

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Snope Maryland’s “assault weapon” ban. Nothing in the orders. I wasn’t expecting this. I don’t know what it means.

Ocean State Tactical Rhode Island’s “large capacity” magazine ban. Nothing in the orders.

More: There is another reason that SCOTUS doesn’t put cases in the orders after conference. That is, if they have decided to deny cert, but there are one or more justices that want to write a statement regarding the denial.

If this is the case, this is bad news for us.

I hope that they will release more on the cases, in a favorable light to us, in the next day or so.

YES!

Both Snope and Ocean State Tactical are relisted for conference this Friday!

This is it. We are off to the races!

John of www.GunsSaveLife.com was kind enough to post a link back to us and to quote The Game is On! SCOTUS update

He expressed a bit of skepticism.

John is skeptical because nobody knows what is going to happen in Supreme Court conferences.
It is all “reading the tea leaves”.

The black box which is Supreme Court conferences has visible inputs. Status of the case, briefings on the case, circuit split, time after the last Supreme Court opinion on the subject and a few others.

For output, we have “Denied”, “Denied with statement”, “Granted”, “relisted” and “rescheduled”.

Why the justices decide on which output is a guess. Some people are good at those guesses. Mark Smith has a good record. I don’t have a record to stand on. We know historically that “rescheduling” happens when the justices want to see multiple cases at the same time. We know that under Roberts, cases that are relisted are almost always granted cert. and those that are not have some procedural issue with them, not merits issues.

Cases that are denied Cert generally have nothing said about them. Think of it as spending 30 minutes trying to convince your parents to do something, and at the end of that they say “no”. That’s how most denial of cert goes. Nobody cares when cert is granted. It is going to happen.

When one or more justices feels strongly that cert should have been granted, they will write a statement to go along with the order list. Occasionally, a justice will write a statement explaining to the petitioner why cert was denied so that they can address the issue.

We saw several statements from Justice Thomas on why they were not granting cert on Second Amendment challenges that were in an interlocutory state.

As of January 6th, we are on deck for THREE Second Amendment cases to be evaluated by the Supreme Court.

On January 10th, the justices will discuss all three cases, Ocean State Tactical, Snope, and Gray.

On the following Monday, or Tuesday, they will issue their orders.

The Court can:

• Grant Cert.
• Deny Cert.
• Relist the case

.

While it would be wonderful to have them just grant cert in all three cases, the more likely event will be that the cases will be relisted.

In the Roberts’ court, this is the standard for cases where the justices have agreed to hear the case, but Roberts wants to make sure there are no issues hiding in the case history.

We can expect two to four relisting before they finally decide yes or no.

At that time, we will know what the schedule will be. If the cases will be combined, or if they will all be heard on the same day.

We are on track to have a major Second Amendment opinion issued by the Supreme Court around the end of June.

So far it is only Gray v. Jennings, but it is still early.

In two days, we will get our next cup of tea leaves.

On the 16th, Gray waived the 14-day waiting period for distribution of Petition. They requested that the case be distributed for the January 10th conference on December 24th.

They did, indeed, get their reply in on time. Amazing how the good guys get their paperwork in on time while the state, with nearly infinite resources, is forever requesting extensions.

What does this mean?

As of the morning of the 21st, all three Second Amendment cases seeking cert are now fully briefed. Two are at final judgement and the third is about preliminary injunctions, so being in an interlocutory state is not an issue.

We have three cases teed up and ready to go.

All three cases are simple cases if the Court follows their own president.

Are “assault weapons” arms under the Second Amendment? Yes.

Is this a gun ban case? Yes.

Is this class of arms in common use for lawful purposes? Yes.

Done.

Are “large capacity magazines” arms under the Second Amendment? Yes, but with a bit more language. Magazines are to arms as ink is to free speech.

I this a ban on a class of firearms? Yes.

Is this class of arms in common use for lawful purposes? Yes.

Done.

Is a violation of the Second Amendment to the US Constitution a violation of a Constitutionally protected right? Yes.

Done. Irreparable harm has been committed if a Second Amendment protected right is violated.

Gray’s response points out that there is a circuit split. It points out that a violation of any constitutionally protected right that cannot be fixed with money is irreparable harm.

Prove it!

The state is arguing that the plaintiffs (good guys) “…failed to prove they will more likely than not suffer irreparable in jury while proceedings are pending.”

The petitioners (plaintiffs and good guys) did make a showing that they were suffering irreparable harm. They argued that violation of intangible Second Amendment rights is irreparable harm.

The state argues that they didn’t even try to prove irreparable harm. They counter with the proof is that it is irreparable harm because it is a violation of a Constitutionally protected right.

The trifecta of pro-Second Amendment cases

In the 60s, I can remember wrapping Christmas presents and then going to the Greyhound bus terminal with my mother. There, she would pay to have a box shipped to the Midwest. This had to be done weeks in advance.

My relatives would go down to the bus station when the packages arrived to pick them up. There were no tracking numbers, there were no promises to deliver on any particular date.

As regular people, it was how you shipped large boxes safely and “rapidly.” The US Post Office would tell you that by the early part of November you should have mailed all your Christmas presents.

When Federal-Express came into existence, the concept of getting something from here to there in less than 24 hours sprang into existence as well. For a few dollars, you could send your packages in early December and still get them there in time.

On Friday night, near midnight, I ordered a gift. It arrived Sunday morning.

Instant gratification.

The courts still move like it was in the days before the Pony Express. Everything takes more time than you want it to. Everything is slower than it should be. Everything is designed to allow for extensions to file.

Nothing is ever “fast”.

For example, you file a petition for writ of certiorari, the respondent has 30 days to file a reply. If that reply is not “We aren’t going to reply”, the petitioner has 14 days(IANAL) to file their response.

This back and forth always has a built-in delay. In addition, the parties can always ask for an extension. It is unusual for the extension to be denied.

September 16th, Petition for writ of certiorari is filed. It is a month before the state says, “we are not going to respond”.

October 28th, the court “requests” the respondent file a response. It is a month before the respondent asks for another 30 days to respond. They want 60 days to write a response.

The Court says, “No, you can have 14 days.”

The petitioner files their response on the day it is due. Do you think they wrote on the day it was due, or do you think they wrote it back when the request for a response was filed?

By the rules of the Court, the petitioner has 14 days to respond. This would put their due date as the 26th of December, past the date to distribute for the January 10th conference.

The Supreme Court conferences every(?) Friday to discuss which cases they will grant cert. These conferences are just the 9 justices. Nobody else attends them.

If the normal schedule was kept, that would mean that the case would not be conferenced until late January. Which means we might miss the 2024 Supreme Court term.

The lawyers for the petitioner (good guys) filed a short note requesting that the petition be distributed on the 24th of December for the January 10th conference. They promise to file their response on the 20th.

This puts this case on schedule for the 2024 term.

Conclusion

We might not see a response from the Court regarding this letter. What we will see is the filing of the response on the 20th.

What we want to see is the case distributed for the conference on the 24th. We are also hoping to see Snope and Ocean State Tactical distributed as well.

If that happens, then the Justices will be discussing all three Second Amendment cases on the 10th of January.

Out of that Conference, we can expect to see each case either relisted or denied. I do not expect to see any of them denied.

If they are relisted, the most likely reason is that they are being granted cert, barring anything procedurally wrong with the cases. That week, the law clerks will be researching those cases to make sure there are no monkey wrenches to be thrown.

The next week, we should expect another relisting. If we don’t see a relisting, we will see acceptance.

What we do not want to see is more than two relistings. More than two is likely to indicate something is wrong with one or more of the cases, and one or more of the Justices is writing a statement regarding that denial of cert.

Defamation: A statement that injures a third party’s reputation. It is a type of tort.

Slander: A false statement, usually made orally, which defames another person. The damages from slander must be proved by the party suing.

Libel: A method of defamation expressed by print, writing, pictures, signs, effigies, or any communication embodied in physical form that is injurious to a person’s reputation.

In other words, it is all linked together. In general, we speak of libel as written defamation and slander as spoken defamation.

E. Jean Carroll accused Trump of raping her. Trump denied the allegation he raped her. Carroll then sued Trump for defamation.

Trump lost the defamation case. I believe that the case is on appeal.

This is the case that leftists have been using to say “Trump was found guilty of rape.”

No, he was not. Rape is a criminal offense, tried in a court of law, prosecuted by the state. E. Carroll was unable to find a single prosecutor willing to charge Trump with rape.

She brought a civil case. In a criminal case, the accused must be found guilty beyond a reasonable doubt. In a civil case, it is a preponderance of the evidence. Very different.

Nobody on the left is willing to say that a court that finds in the way they want might be biased, while at the same time screaming that any court that finds against their wishes must be right-wing extremists/right leaning bias. In terms of this case, the suit was brought in a notoriously anti-Trump court.

The court allowed statements that did not directly relate to the charge.

In the end, the jury found that no rape occurred but felt that there was a sexual assault. See past articles regarding multiple charges to allow a jury to do the right thing and then give a lesser charge to make the plaintiff (in a civil suit) or the prosecutor a “smaller” win.

The jury awarded E. Carroll 5 million dollars.

Trump makes it all back, and then some

Yesterday, December 15th, Trump reached a settlement with ABC News agreed to pay $15 million to settle Trump’s defamation suit against ABC News for statements made by George Stephanopoulos.

George claimed that Trump had been found guilt of Rape. This is a false statement that damages Trump’s reputation, i.e., defamation.

Rather than a length and expensive civil trial, which they would have lost. ABC News agreed to pay $15 million for the building of the Trump presidential library. They will also pay $1 million dollars towards Trump’s legal fees.

https://www.foxnews.com/media/george-stephanopoulos-abc-apologize-trump-forced-pay-15-million-settle-defamation-suit

Divination is the art of predicting the future or reading a person using some type of indicator.

Most people can do a cold read of a person and get it mostly right. Others do a much better job.

My personal example was being on a date with a young lady while at university. We had had a nice dinner and were sitting in the rose garden on campus, watching and listening to the water of the river.

I wasn’t pushing, being mostly stupid about females at the time, I was just talking and listening.

I stopped, and said, “I’m so sorry. I didn’t know you had been raped here.” The “guess” was right. I was able to observe her discomfort, and divine what was causing it. Was it magic? No. It was simply a logical result of analyzing the situation and her no verbal cues.

One of the methods that “readers” use to do divination is “reading the tea leaves.” Tea is poured into a teacup with loose tea. The person drinks the tea, leaving the leaves behind. The reader then looks into the cup and divines something about the person, often predicting what will happen to that person.

They read the non-verbal cues to do this, frequently without even understanding the cues they are reading.

The Supreme Court is mystical in how they decide what cases to hear. It is difficult to predict how they will decide given the questioning during oral arguments. Yet, we insist on trying to predict what they will do.

The information we have to work with is typically very limited. In this case, we are attempting to predict if they will grant certiorari in a Second Amendment case.

We have access to the case histories, we have access to the opinion pieces written by others, we have the briefs filed by the parties. We know what other cases are seeking certiorari. And we know cases that will be seeking certiorari.

And we have the orders issued by the Court.

The case which is furthest along appears to be Snope v Brown. It has been fully briefed, it was scheduled to be discussed yesterday.

Snope is an “assault weapon” ban.

Another Second Amendment case is Ocean State Tactical v. Rhode Island. It has been fully briefed, it was scheduled to be discussed yesterday.

Ocean State Tactical is a “large capacity magazine” ban.

Then there is the case of Gray v. Jennings. This is one of the interesting cases because it doesn’t ask the Court to decide a Second Amendment issue directly, instead, it asks how the inferior courts should address motions for a preliminary injunction.

In September 2024, the petitioner (good guys) filed a petition for writ of certiorari. They are asking the Court to clarify a Winter factor.

Winter factors are the four questions that must be answered before a preliminary injunction is granted, or a stay is granted.

The first question is, “Is the party likelihood of success on the merits of the case?” In other words, is the party requesting the injunction or stay likely to have the winning argument.

The second question is, “Is the party likely to suffer irreparable harm without the injunction/stay?” Losing money is not irreparable harm. Losing your life is. Losing your business? That might be something that can be fixed with lots of money.

The third question is, “Does the balance of equities and hardships tip in favor of the party seeking the injunction/stay?” If the hardship is trivial, then it does not justify an injunction or stay.

The fourth question is, “What is in the best interest of the public?”

In the past, the state has often won injunction’s and stays by getting the courts to modify the order of the factors. They claim it is in the public’s best interest, the court agrees, so never looks at the likelihood of success. Or the court finds that the party is likely to win on the merits, but no harm and no hardship is happening.

The Supreme Court not only set forth the “Winter Factors” but they later ordered that the factors be done in order. Success on the merits must always be done first.

In most civil rights cases, if the party is likely to succeed on the merits of the case, they are granted the preliminary injunction or stay. Having your constitutionally protected rights infringed is always irreparable harm. You will never again be able to speak at that moment.

The balance of equities always favors the protection of The People’s rights.

The public has no interest in enforcing unconstitutional laws.

The exception, of course, has always been Second Amendment cases. Many courts believe that there is no harm in denying The People their constitutionally protected right to keep and bear arms.

Gray asks, “Is the infringement of Second Amendment [protected] rights per se irreparable injury?”

The Reading

Snope and Ocean State Tactical were both conferenced for December 13th. The state declined to respond to the petition in September/October by Gray. The case was scheduled for conference on November 8.

Five days after it was scheduled, the Court issued a demand for the state to respond.

This is tea leave one. If the Supreme Court is “requesting” a response, it means that they are looking at the case seriously. You get your response in.

The state delayed in responding, then asked for an extension. The extension was granted. The date for the state to respond was fixed at December 12th.

The response is the normal anti-gun garbage. They first claim that there is no circuit split. This is not a requirement, it is just an assumption. The Court will often let an issue simmer until there is a good case. The one place where they are more likely to step in, is if the interpretation of the law is different in different parts of the country.

Their second argument is that the plaintiffs (good guys) should have presented evidence that being unable to purchase guns and magazines was actual irreparable harm.

Finally, they argue that the Circuit court not only rejected their appeal regarding the denial of preliminary injunction on winter factor two, but on factors three and four.

Because the petitioners (good guys) are only challenging the second Winter factor, if it is a Second Amendment challenge, then it is irreparable harm. The reason is that the other two factors also favor the plaintiff, per current case law.

Conclusion

The Supreme Court likely wants to discuss all three of these cases in the same conference. When we see these three cases distributed for conference on the same day, that will be a strong indication.

The Supreme Court can decide to combine the three cases, combine two and leave the third separate, or hear all three.

Of course, they could decide to hear none of them, this is highly unlikely.