Legal

First, Mark Smith is a lawyer. I am not. Much of the “inside baseball” I’ve learned from listening to Mark and others like him on YouTube.

His analysis of many cases is spot on. Many times his analysis guides mine. I enjoy listening to him. To put it differently, I enjoy him attempting to “make [me] the smartest person in the room.”

One of his early videos was describing how the Roberts court handles grants of cert.

As he explains it, once a case gets to the point where it will be considered for cert, it will be distributed for conference. This means that it will be discussed by the Justices at a particular conference. Those conferences normally happen on Friday.

The court will then issue their “Orders” on the following Monday. Well, that is the day it is normally published.

The orders list consists of mostly of one or two lines, case such and such petition for something is denied. There are long lists of denied, a shorter list of granted.

In addition to the short statements from the Court as a whole, there will sometimes be statements by the Justices regarding denial of cert in a case. These can be considered dissenting opinions.

If a case has been conferenced, there are three options for the case going forward. The case can be denied cert. The case can be granted cert. The case can be relisted.

If a case is relisted. Which means to be distributed for conference the next week. That will not be in the orders. It will show up in the case docket later in the day.

If a case is not listed in the orders, after it has been conferenced, it can mean one of two things (IANAL), it can mean that the case is relisted, and we’ll read it in the docket later in the day, OR it means that cert was granted but one or more Justices needs time to write a statement.

As I said, the orders are normally given on the Monday following the conference.

Occasionally, there will be a misc. orders issued on the Friday of the conference. These are grants of cert.

Why is this important in tea-leaf reading?

The Supreme Court has a term that runs from the first of October to the end of June the next year.

In general, the Court will issue opinions in the same term as they hear oral arguments on the case.

Oral arguments must take place before the close of the term, while leaving the Justices enough time to write their opinion. Consider that the Heller opinion was nearly 157 pages in length, 60 lines per page, 10 words per line.

That makes the Heller opinion around 90,000 words in length. It was written by multiple justices, but still, that is two Novels.

It is 90 long Chris articles. Ally, our writer, will write 3700 words a day when creating the first draft. She will spend a month writing a 50,000 plus word book. Then she starts editing.

This means that if they expect it to be a long opinion, they need to have 45 or more days to write it. That 45 is an S.W.A.G by me.

This puts a fairly hard deadline for oral arguments.

From the time a case is granted certiorari, the clock is running. The petitioners have 45 days to file their brief. The respondents have 30 days to file their brief. The Petitioners have 15 days to file their reply. A total of 90 days.

To give the justices 45 days to ponder and write, oral arguments must happen on or before May 16, 2025.

Putting a more concrete number on this, it took 118 days from oral arguments in McDonald to the date the Court issued their opinion.

This implies my guess of 45 days might be a bit short. Bruen was heard in November and the opinion was issued on June 23rd.

Regardless, if we are going to have an opinion this term, we are running out of time. To hit the May 16th deadline, the Court must grant cert before February 15th.

120 days was this last Thursday, January 16th.

Wolf?

Mark explained to us that we wanted three cases conferenced on the 10th of January. This happened. Good for Mark.

He explained that we would like to see cert granted January 13th, but we should expect the cases to be relisted.

He posted a video on the 10th or 11th telling us that a miscellaneous order had granted cert in three cases on the 10th. This was bad news for the Second Amendment. These cases were being given a jump start on getting things done before it was too late for this term.

On Monday afternoon, two cases were relisted. The case that was in an interlocutory state was denied cert. There was another Second Amendment case that dealing with taxes on firearms that was also denied cert.

This was precisely what Mark had predicted.

On the 17th, our two Second Amendment cases were conferenced for the second time. In the evening, a miscellaneous order granting cert in four cases was issued.

Mark posted another video telling us this was bad news for our Second Amendment cases.

I’m sticking with Mark V1. So far, the situation is progressing as he predicted. This matches my predictions (IANAL).

I refuse to panic or even worry over the weekend. Monday morning, I will read the orders. I expect to see nothing regarding Snope and Ocean State Tactical. Later in the evening, I will check the docket for those two cases, and I expect to find them relisted.

This is on track. We are doing well.

January 27th is the day we need to be paying attention to. That will be the day orders are issued for the conference held on the 24th. If the cases are relisted for a fourth time, I’ll be nervous.

Just remember, it isn’t over until the fat lady sings.

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