In five days, the only legal action to seek an order void the 2016 elections due to Russia’s interference and its collusion with Trump’s campaign is set for conference. The case might “die” on the decision of one law clerk.
Disclosure: I am counsel for Petitioners in Bailey, et al v U.S., et al, docket 16-1464.
In an article titled, “End of Summer Conference: Where Appeals Go to Die,” NYT Aug, 31, 2015, Adam Liptak, who covers the Supreme Court for The New York Times, quotes a former solicitor general: “‘The summer list is where petitions go to die.’”
Liptak notes: “The odds of persuading the Supreme Court to hear a case are always long. At the conference held on many Fridays during the term, which lasts from October to June, the justices consider perhaps 200 petitions at a time and grant about 1.1 percent of them. At the long conference, the rate is roughly half of that, around 0.6 percent.”
Liptak continues: “[T]the difference between a grant and a deny is truly the difference for a handful of cases on the summer list between winning and losing.’”
A major reason? Law clerks screen the cases: “Eight of the nine justices—the exception is Justice Samuel A. Alito, Jr.—have assigned their law clerks to a shared ‘cert. pool.’ A single clerk makes a recommendation to all of the participating justices about which cases to hear.”
At this point of a Supreme Court term, many of the clerks are new. In 1998, Justice John Paul Stevens observed, in an interview with USA Today: “You stick your neck out as a clerk when you recommend to grant a case. The risk-averse thing to do is to recommend not to take a case.”
Someone noted yesterday the header for my blog seemed too plaintive when I asked the Justices “Please at Least Read” the Petition.
An officer of the Court—e.g., a lawyer, like me, admitted to practice before SCOTUS—is supposed to address the Court politely. We file “pleadings” that end with “prayers for relief” (i.e., what we ask the Court to do) and begin oral argument with “May it please the Court...”
Yesterday I asked—and reiterate today—the Justices of the Supreme Court at least—please—read the Petition in 16-1464, our case about the election.
The case is set for conference on September 25—the end of summer conference. We face what Liptak characterizes a study of the Court saying is “‘an arbitrary and legally irrelevant challenge that is empirically attributable to the clerks’ hesitation to recommend grants.’”
A NOTE OF HOPE: ‘[A]as tough as the odds are, the cream can still rise to the top,’” the former solicitor general quoted earlier, also said.
We have five (5) days to seek the Court’s order to consider the case. You should visit Revote2017.net to read suggestions of what you can do to ask the Court to hear this case.
FINAL POINT:: I was blasted last spring by people (usually brave souls who used pseudonyms or the more straightforward “anonymous”) who said my arguments are spurious. People should read the Petition or read my blogs of the past ten days.