There are approximately six weeks remaining in the current Supreme Court term. It is too late for any newly filed cert petitions to be granted by the end of June but there are still a handful of Second Amendment cert petitions pending which will very likely be either granted or denied by the last week of June after which the justices leave town for their three months long Summer vacation.
This article will take a look at various factors which play into whether or not a cert petition is granted and then close with a snapshot of the Second Amendment cases which are still pending before the Supreme Court as well as the one case in which the cert petition has been granted and will be argued on the merits at the Supreme Court after the justices return for the 2019-2020 term which begins on October 1st.
John Elwood is a lawyer and partner at the legal firm of Vinson & Elkins. More importantly, he writes a column called “Relist Watch” at SCOTUSblog.com which is quite entertaining as well as being very informative.
Mr. Elwood has an advantage over the rest of us in knowing what goes on behind the curtains at SCOTUS. He once clerked for US Supreme Court Justice Anthony Kennedy.
Yes, SCOTUSblog is full of liberal-leftists but for the most part, they are educated lefties whose tinfoil hats are not as prominent as those worn by most people on both the left and right.
Give the article a read and avail yourself of the numerous links provided herein. You may not like what you read and hear but at least you have now been presented with the opportunity to gain some insight as to how the Supreme Court operates instead of wasting your time on self-proclaimed lawyers/astronauts who bloviate on the Internet, particularly those who do so at the so-called gun-rights forums while hiding behind fake screen names.
Supreme Court Process and Procedures in a Nutshell
A “petition for certiorari” is commonly referred to as a “cert petition” and if the US Supreme Court denies your cert petition then, for all intents and purposes, you have taken your legal case as far as it can go in the courts and lost. Yes, as with most things there are exceptions, but the exceptions are very, very rare and will likely never apply to you.
There is very little information available to the public as to how and why the justices of the Supreme Court go about deciding on whether or not to grant or deny a cert petition. In theory, the decision on whether or not to grant, deny, or postpone a grant of certiorari is made during the private “Discuss” conferences of justices which occur approximately once per week while the Court is in session.
Almost invariably, the “Discuss” private conferences take place on a Friday until the end of oral arguments in April and which point they segue to Thursdays until the end of the term in June.
Unfortunately, the only ones present in these private conferences are the justices. Not even their clerks are allowed in the room and so the only thing we know about what goes on inside of these private conferences is what the justices have said publicly over the years and as to the procedure that goes on outside of the private conferences, we rely mostly on what the normally tight-lipped former clerks have said over the years.
When a Supreme Court justice retires, his papers are eventually made public, at least in part and often many years after his retirement. And often then, the only things we might learn are the names of the justices who voted to grant the cert petition and what the memos, written by the clerks, had to say in regards to why a particular cert petition should be granted or denied.
In last week’s podcast at SCOTUStalk, I learned something new regarding the cert petition process and that is the justices never even see a cert petition until the winner in the lower court (the respondent(s)) files his Brief In Opposition to granting the cert petition or files his Waiver to respond to the cert petition.
On the first Wednesday following the 14th day after the Brief In Opposition (or Waiver) is filed the Clerk of the Supreme Court (not to be confused with the law clerks who work for the individual justices) puts the cert petition, response, Amicus briefs, etc., into a cart and delivers a set to each of the justices.
Typically, a cert petition is not “discussed” and voted upon in a private conference until at least 10-14 days after the Clerk of the court has delivered the documents to each of the justices so that they can first review them before voting on whether or not to grant or deny them.
I say “discussed” because Justice Kagan has publicly lamented the fact that the justices do not really discuss the cert petitions in their private conferences. It turns out that the only time a case is discussed at any length amongst the justices is after the case has been heard at oral argument and that only occurs after a cert petition has been granted. The closest thing that comes to a “discussion” are the questions the justices ask the lawyers at oral arguments. Questions which are typically more for the benefit of the other justices than for the lawyers for the parties answering the questions. In short, in order for a cert petition to be granted four justices have to pretty much decide independently to vote for the petition.
Most of the cert petitions are never even voted on at the private “discuss conferences” of justices. Unless at least one justice indicates that he wants a vote on the petition in a particular case, the case is placed on the “Dead List” and automatically denied. The names and numbers of the denied cert petitions are revealed on the Orders list which is usually released on the following Monday morning at 9:30 AM Eastern Time.
It takes the vote of four justices to grant a cert petition. There is a commonly held belief amongst the denizens of the Internet that a justice will not vote to grant a cert petition unless he is certain he has five votes to prevail. Here is a link to a pdf showing how each of the justices voted on whether or not to grant a petition along with how the justices voted on the merits. In this particular case, there were partial dissents and partial concurrences which is why checkmarks appear in both the Reversal and Affirmed columns.
The Cert Pool & SCOTUS Rule 10
How does a justice decide whether or not he wants a cert petition placed on the “Discuss List” so that it can be voted on at a private conference? Justices Alito and Gorsuch, along with their clerks, read all of the cert petitions filed (approximately 8,000/year in recent years). If either of them wants a case placed on the Discuss List they simply say so and it’s done.
The other seven justices participate in what they call the “Cert Pool.” The cert petitions are divided up amongst the justices’ law clerks (each active justice gets four law clerks, retired justices get one clerk and retired justices don’t vote). These twenty-eight law clerks prepare memos in which they recommend that the petition be granted or denied in addition to flagging cases they think their justice might be interested in discussing at the private conferences.
It takes only one justice to place a case on the Discuss List. Likewise, it takes only one justice to have a case relisted to a future conference and there is no official limit as to how many times a case can be relisted.
Back in 1994, Justice Gorsuch was a law clerk for then Justice Kennedy. Here is an example of a memo he wrote about a particular cert petition. Note that the memo opens with a single sentence followed by his recommendation that the cert petition be denied.
I suspect that most of the justices never make it past the recommendation in the opening summary let alone read 8,000 memos in full (the one above was just over ten pages long). That is, of course, pure speculation on my part. I just don’t see how it is possible for each justice to read 8,000 cert petitions or 8,000 memos in a single nine-month term in addition to all of the other work they do.
Then, as now, Supreme Court Rule 10 states the reasons why a cert petition may be granted. It might come as a surprise to you but the lower court “getting it wrong” (i.e., conflicting with Supreme Court precedents) is not a reason to grant a cert petition. According to the SCOTUS Rules (which the court does not have to follow) the primary purpose of the Supreme Court is to resolve “splits” on Federal law between the Federal circuits and between state courts of last resort on questions of Federal law.
There are certain unwritten exceptions. For example, Justice Kagan has publicly stated that if a court overturns a Federal law then the Court will not wait for a split to emerge between the circuits. The overturning of a Federal law is sufficient grounds to grant a cert petition in those cases. And then there are a few types of cases where a circuit split is impossible because the subject matter is limited to a single Federal court or the nature of the case entails that the court of appeals be skipped over and the case heard directly by SCOTUS.
SCOTUS Rule 10
Justice Ginsburg has publicly expressed bewilderment that the lion’s share of cert petitions filed by lawyers do not even mention a circuit split or seem to even know that circuit splits are the primary reason why cert petitions are granted.
The secondary reason the Supreme Court may grant a cert petition is if the case raises a question of national importance. Of course, if your cert petition does not mention the splits or say why your case is one of national importance then it will be denied even if there are multiple circuit splits and/or the question is one of national importance. The justices are more than happy to wait for a better case to come along, even if that case never arrives.
Put the following on a tee-shirt and memorize it: SCOTUS Rule 10 says that the Court does not grant cert petitions simply because the lower court decision conflicts with prior decisions of the Supreme Court.
Keep in mind that it takes the vote of five justices to grant a cert petition. A cert petition can ask the Court to resolve intractable splits which have arisen in every Federal circuit and from every state court of last resort on a Federal question and the cert petition still might be denied.
Unfortunately, unless a dissent to the denial of cert is filed by one or more of the justices, we never learn why the properly conforming cert petition was denied, and even then we don’t get the whole story.
An Example of How Not to Write a Cert Petition
The most frustrating and personally upsetting Second Amendment cert petition in all of this time which has passed since the Heller decision was published in 2008 was the Open Carry cert petition filed in Dale Lee Norman v. State of Florida.
I had pleaded with Mr. Norman’s attorney (Eric J. Friday) not to limit his cert petition to handguns and to please, please be mindful of SCOTUS Rule 10 and argue in his cert petition that Mr. Norman’s cert petition should be granted in order to resolve the intractable splits between the Federal circuits and state courts of last resort on the Second Amendment right to bear arms.
When the cert petition was filed, my heart sank when I saw that an NRA lawyer, Stephen P. Halbrook” appeared alongside Mr. Friday on the cover sheet and saw that Mr. Halbrook was listed as the “Counsel of Record” for Mr. Norman.
As my readers know and as anyone who has ever read a brief filed in any of the Second Amendment “carry” cases, or listened to the oral arguments in these cases knows, the NRA and the so-called gun-rights groups (all of them) really, really hate Open Carry.
Not only was the Norman cert petition limited to handguns. It was limited to handguns which are easily and ordinarily carried concealed. In other words, firearms which some state courts and legislatures have not recognized as arms falling within the scope of the meaning of “bear arms” under either the Second Amendment or their State Constitution’s analogue these past 200 years.
Mr. Halbrook’s cert petition in Dale Lee Norman v. State of Florida did not even use the word “split” despite the myriad of splits across the nation demanding SCOTUS review. Instead, Mr. Halbrook’s cert petition mentioned, but really didn’t make much of an argument, that the narrow Florida State Supreme Court decision “conflicts” with the Heller decision. As you know, SCOTUS Rule 10 says the Court does not grant cert petitions because the lower court decision conflicts with its prior decisions. There must be a split or the question must be of national importance.
And even then Mr. Halbrook merely stated only once that the Norman decision conflicted with the Supreme Court prior precedents in his cert petition. A simple statement that there is a conflict does not make for a legal argument even if conflicts with SCOTUS decisions were grounds under Rule 10 to grant the cert petition, which they are not.
Nowhere in his cert petition did Mr. Halbrook argue that Mr. Norman’s cert petition should be granted because the case is one of “national importance.” As you know, “National Importance” is the secondary reason for granting cert petitions stated in SCOTUS Rule 10.
As I stated at the time he filed it, Mr. Halbrook’s cert petition would have made a wonderful Amicus brief at the merits stage had the cert petition been granted and made it to the merits’ stage but it didn’t and as a cert petition, it was a terrible cert petition.
You will have to ask Mr. Halbrook why he wrote a cert petition which did not comply with the Supreme Court rules. Which one should find odd given that he has been admitted to practice before the Supreme Court bar for a very long time.
Mr. Halbrook never responded to my email asking him to explain why he did what he did and so I am left with no other conclusion than Mr. Halbrook threw the case. Either that or Mr. Halbrook has become incompetent in his later years.
Either way and regardless of the reason why he did what he did, it was a lost opportunity. When the Norman cert petition was filed, there were many circuit splits which could have been cited and whether or not there is a right to keep and bear arms outside of one’s home is a question of national importance.
SCOTUS Finally Granted a Cert Petition to be Argued on the Merits
For the first time in over ten years, SCOTUS has granted a cert petition with a Second Amendment question to be argued on the merits before the justices and will very likely be argued this fall. The case involves a New York City Rule which prohibits transporting handguns outside of the City of New York unless one has a carry license which the City rarely issues. The City tried to moot the case by filing a motion to postpone briefing in order to give the City a chance to amend its local rule to allow for the transportation of handguns outside of the city to “approved” firing ranges and second homes but SCOTUS denied the motion. The brief on the merits and the joint appendix has been filed with the response brief by the City defendants due on August 5th.
The case, NYSRPA et al v. City of New York et al is a case everyone thought would be denied. The case does not present a Second Amendment split and the scope of the law is very narrow, it is limited to persons with a City of New York handgun premises permit. Only three Amicus briefs were filed in favor of granting the cert petition. The anti-gun groups were so certain the cert petition was going to be denied, they did not file any Amicus briefs.
However, once the cert petition was granted, twenty-three Amicus briefs were filed in support of the petitioners (in support of overturning the New York City gun-control law). Four of the usual anti-gun suspects filed Amicus briefs but instead of filing them in support of the New York City respondents, they filed their briefs in support of neither party. Doing this was quite clever on their part given that justices do not read Amicus briefs and by filing a brief in support of neither party, the brief stands out from the herd thereby increasing its chances of being noticed.
When a cert petition has been scheduled for a private conference and a month or more has gone by without it having been denied, granted or relisted for another conference then that is a pretty good sign that the cert petition is being held pending a decision on some other cert petition (or case which has already been granted cert but not decided). Of course, as Mr. Elwood mentioned in his podcast, there are cases which hang in the air indefinitely and nobody knows why and the Supreme Court won’t say why the case is in limbo.
I don’t think any of the Second Amendment cert petitions pending before SCOTUS today will be left hanging. If I were a betting man then I would bet that we have a decision on whether or not to grant or deny cert on all of them by the end of this term in June with a small side bet that we will know by the time there is a decision issued in NYSRPA et al v. NYC et al, sometime before the end of June next year. No, the justices do not have to decide whether or not to grant the pending cert petitions by the end of the term. They can, and do, wait for the following term to decide the fate of cert petitions filed in prior terms, and some cert petitions are left pending for years.
There are two Second Amendment cert petitions which have been hanging for over a month now. Both were distributed for the April 12, 2019, private discuss conference of the justices. Since then, nothing. Mance et al v. Holder et al (now v. Barr et al) challenges the interstate ban on buying handguns and Pena et al v. Horan challenges California’s handgun safety roster and micro-stamping.
Two separate criminal appeals arise out of the petitioners relying on a Kansas law “preempting” Federal law from applying to the intrastate sale and manufacture of arms including NFA “regulated” (and taxed) silencers and short-barrel rifles.
Which brings us to two handgun carry cert petitions. The first, out of the 3rd Federal Circuit Court of Appeals is Rogers et al v. Grewal et al. This is an NRA challenge to New Jerseys discretionary handgun licensing law. The Second Amendment Foundation had challenged the law early this decade and lost. This time, the NRA doubled down on the mistakes of the SAF in its argument that Open Carry can be banned in favor of concealed carry. Notwithstanding that the Heller and McDonald decisions (and the 1897 SCOTUS decision, Robertson v. Baldwin) all said that prohibitions on concealed carry do not infringe the Second Amendment right.
Justice Kavanaugh said the same thing in his confirmation hearing. All nine justices who sat on the Heller and McDonald courts, as well as the newly minted Supreme Court Justice Kavanaugh, said that concealed carry is not a right and yet these so-called gun-rights groups keep filing cert petitions which argue that the Heller decision said that states can ban Open Carry in favor of concealed carry.
Keep in mind that New Jersey handgun carry licenses do not differentiate between concealed or Open Carry. If you have a New Jersey handgun carry license then you can carry a handgun in New Jersey, openly or concealed. Significantly, there is no state law prohibiting the Open Carry of long guns in New Jersey for the purpose of self-defense. If there is a local law prohibiting the Open Carry of long guns in New Jersey then neither the NRA nor the SAF before it challenged any such local Open Carry ban because both the NRA and the SAF oppose Open Carry.
And so, the legal argument behind the Rogers cert petition is the preposterous argument that the Heller decision said that states can ban Open Carry in favor of concealed carry even though the decision said the exact opposite and there is no Federal circuit split in favor of their argument and the only court which has held that states can ban Open Carry in favor of concealed carry was a narrow decision by the Florida Supreme Court in Dale Lee Norman v. Florida.
A decision which didn’t say that the Heller decision said that states can ban Open Carry in favor of concealed carry. The Florida Court said that it did not like what the Heller decision said about Open Carry being the right guaranteed by the Constitution and concealed carry not being a right and issued a decision which explicitly conflicted with the Heller and McDonald decisions.
And then something funny happened. There were six Amicus briefs filed in support of Rogers. The first one filed “argued” extensively in favor of concealed carry and by “argued” I don’t mean legal arguments. Absent from the brief was any cognizable legal argument in favor of concealed carry.
The closest any of the other five Amicus briefs in Roger’s came to saying that states can ban Open Carry in favor of concealed carry were allusions.
The Counsel of Record for the petitioners in Rogers is David H. Thompson who just happens to be the Counsel of Record for the petitioners in Gould et al v. Lipson et al which is a case out of the 1st Federal Circuit Court of Appeals which challenges a similarly discretionary handgun licensing law out of Massachusetts. Second Amendment Foundation attorney had tried to make Massachusetts handgun permits, which allow for concealed carry, “shall-issue” in Hightower v. Boston and lost earlier in this decade as well.
Similarly to New Jersey, if one legally possesses a long gun then he can openly carry a rifle or shotgun in public in Massachusetts for the purpose of self-defense, a point which a respondent’s Brief In Opposition in Gould made certain to point out.
The one possible, but unlikely, saving grace in the Gould cert petition is that this time Mr. Thompson did not argue that the Heller decision said that states can ban Open Carry in favor of concealed carry. His only mention of Open Carry is in a footnote informing the court that Massachusetts no longer has “Class B” handgun Open Carry licenses, Massachusetts, now, only provides for “Class A” handgun Open Carry licenses which, like New Jersey handgun carry permits, do not differentiate between concealed and Open Carry.
Don’t be surprised if the Rogers cert petition dies from its self-inflicted wounds and don’t be surprised if it takes the Gould cert petition down with it. The Rogers cert petition has been distributed for the SCOTUS conference of 5/23/2019.
The Gould v. Lipson Brief In Opposition was filed on May 6th. It will probably be scheduled for the private conference of the justices taking place on May 30th or June 6th, which is plenty of time for a decision on whether or not to grant cert by the end of this term which ends the week of June 24th. SCOTUS does not have to and does not wait for the petitioners reply briefs to be filed before making its decision on whether or not to grant cert which is why it is best to have it filed within two weeks so at least there is some chance of the reply brief being read.
There is one caveat I would add to the Gould cert petition likely being denied and that is the respondents took the unusual step of filing separate Briefs In Opposition. The Brief In Opposition filed by the Massachusetts Attorney General, Maura Healey, on behalf of the Commonwealth was an excellent brief on why the Court should deny the cert petition, I’m sorry to say.
The other Brief In Opposition on behalf of the “et al” respondents (Lipson and Gross) was filed by Deepak Gupta. Mr. Gupta’s brief read as if it were written by a law school student who spent his three years of law school smoking all the dope he could steal from his fellow classmates.
Whereas Ms. Healey’s brief makes a strong case as to why the cert petition should be denied. The only thing one can glean from Mr. Gupta’s Brief In Opposition is he is double daring the Supreme Court to grant the Gould cert petition. Bizarrely, Mr. Gupta extensively argues in his Brief In Opposition that if SCOTUS is going to grant a cert petition then it should grant the cert petition in his case and hold the cert petition in Rogers!?
Mr. Gupta seems not to have quite grasped the purpose of a Brief In Opposition to granting a cert petition. As one might expect from its title, Brief In Opposition, the purpose of the brief is to oppose the granting of the cert petition.
But what do I know, I never attended law school and I was never a stoner and never did I take “mind-expanding” drugs.
I suspect the same cannot be said of the lawyers and leaders of the gun groups on either side or their memberships for that matter.
By The Way & FYI
By the way, at the bottom of the status page of my California Open Carry lawsuit at my website, I have links to all of the Second Amendment cert petitions denied this term. Several concealed carry cert petitions have already been denied this term, both civil and criminal, without a single justice filing a dissent to the denial of cert.
There is only one pure Open Carry lawsuit, a lawsuit which is not limited to handguns, on appeal in the United States and that is my California Open Carry lawsuit, Nichols v. Newsom et al (formerly Nichols v. Brown et al) which is procedurally stalled pending a decision in George Young Jr. v. Hawaii et al which is, in turn, stayed pending a decision by SCOTUS in NYSRPA v. NYC et al.
Mr. Young sought a permit to carry a handgun concealed or openly, he did not care which way. This was enough to keep his appeal crashing and burning like every one of the baker’s dozen or so of concealed carry lawsuits filed in the 9th circuit court of appeals since the Heller decision was published in 2008.
My California Open Carry lawsuit is not limited to a Second Amendment claim and the only way I lose my Second Amendment claim is for the court of appeals to limit the right to keep and bear arms under the Second Amendment to the interior of one’s home. Doing so creates a split with every Federal circuit court of appeals which I won’t forget to argue in my cert petition should it ever come to that.
My pure, California Open Carry lawsuit was filed in November of 2011, ahead of Mr. Young’s case. As far as I know, mine is the oldest Second Amendment carry case still standing in any Federal court. Which would make the Second oldest carry case George Young Jr., v. State of Hawaii et al.
There is one far more recent handgun “carry” case out of the 4th Circuit Court of Appeals which challenges Maryland’s discretionary handgun licensing scheme that might be filing a cert petition sometime this summer. Maryland, like New York and New Jersey and Massachusetts, does not have a statewide ban on openly carrying long guns in public for the purpose of self-defense.
There are local bans on the Open Carry of long guns in Maryland but this NRA backed lawsuit, Malpasso et al v. Pallozzi, does not challenge any local ban on openly carrying long guns. Given the way Malpasso et al framed its challenge, we don’t know what the Plaintiffs’ legal argument is exactly, and won’t know until the cert petition is filed in the case. As you may have guessed, the Second Amendment Foundation filed and lost a lawsuit challenging Maryland’s “may issue” handgun scheme (but not the license requirement itself) and lost earlier this decade in Woollard v. Gallagher.
Given that the Malpasso plaintiffs did not file a petition with the court of appeals for an en banc rehearing of its case, they now have 90 days from April 29th to file their cert petition with SCOTUS or ask for an extension of time to file their cert petition. SCOTUS will grant an extension, for a showing of good cause, for up to 60 days to file a cert petition meaning that the cert petition in Malpasso is due on July 30th, absent an extension of time, and up to 60 days after that, with an extension of time.
FYI, one of the lawyers representing the NRA plaintiffs in Malpasso is David H. Thompson of Cooper & Kirk PLLC. Yes, the same Counsel of Record for the cert petitioners in Rogers and Gould.
You can’t make this stuff up folks.
With the exception of the prisoner pro se (not represented by a lawyer) cert petitions, I have read every cert petition filed in a Second Amendment case I was able to get my hands on these past ten years. These include all of the ones filed with the backing of the so-called gun-rights groups as well as several opposed by these same groups or opposed by their lawyers.
Recently, SCOTUS started putting cert petitions online. Getting copies of the Second Amendment cert petitions has become much easier provided that one knows the name or docket number of the case. If not then one must wait for there to be a decision on the cert petition and, if denied, that the cert petition was filed in a pdf searchable format. Many, if not most, cert petitions are filed by pro se (without lawyer) petitioners, particularly prisoner pro se petitioners. These types of petitions do not always appear on the docket and when they do, they are scanned copies of petitions which can’t be electronically searched.
That said, I have downloaded every cert petition which was denied this term (beginning last October) and did a pdf search of the cert petitions (if they were searchable). If the petition has a Second Amendment question, or a strong Second Amendment nexus, then I place a link to the SCOTUS docket page on my website.
Thus far this term (beginning October 1, 2018), there have been four concealed carry lawsuits denied, two of which involved only the Second Amendment and two Fourth Amendment cases with a Second Amendment nexus (concealed carry).
And then there was the case out of Massachusetts which involved a law school student who was convicted of multiple felonies. What was his crime? He brought his “Texas legal” firearms and magazines into Massachusetts where he kept them in his home.
That cert petition was denied on October 1st, just five days before Justice Kavanaugh took his seat. If the “safe” handgun roster and micro-stamping cert petition (Pena) is granted then we can be all but certain that Justice Kavanaugh is “The Fourth Vote” we have needed these past ten years willing to vote to grant a Second Amendment cert petition.
This link will take you to pdfs of memos prepared by the SCOTUS law clerks in the 1986 to 1993 terms so you will have a better idea on what makes a good cert petition. The link is from: Lee Epstein, Jeffrey A. Segal, & Harold J. Spaeth, The Digitial Archive of the Papers of Justice Harry A. Blackmun (2007), available at: http://epstein.wustl.edu/research/BlackmunArchive.html