If at first you don’t Ginsburg, Scalia, Scalia again

February 4th, 2013

RBG Tells Paul Clement no, so Clement asks Scalia. This is the SCOTUS  equivalent of mom saying no, and asking dad.

(FURTHER UPDATE 7:10 pm:  Lawyers for HealthBridge on Monday evening renewed their plea, asking that it be referred to Justice Antonin Scalia.   Such requests are permitted under the Court’s Rule 22.  The fact that one Justice has denied an application does not bind any other Justice, if the request has not been submitted by the first Justice to the full Court.  Justice Ginsburg did not do so before she denied the plea Monday afternoon.)

(UPDATE 4:50 pm:  Justice Ginsburg denied the application that is discussed in this post.  She acted without seeking responses from the other side.  There was no opinion, so there was no explanation.  That does not bar a request to another Justice, but such second efforts are seldom successful.)

Update: Supreme Court Rule 22.4 provides:

4. A Justice denying an application will note the denial thereon. Thereafter, unless action thereon is restricted by law to the Circuit Justice or is untimely under Rule 30.2, the party making an application, except in the case of an application for an extension of time, may renew it to any other Justice, subject to the provisions of this Rule. Except when the denial is without prejudice, a renewed application is not favored. Renewed application is made by a letter to the Clerk, designating the Justice to whom the application is to be directed, and accompanied by 10 copies of the original application and proof of service as required by Rule 29.

The rule says “any other Justice.” Curious clement chose Scalia. I would’ve sent it to Thomas, who likely thinks that much of the NLRA is unconstitutional.

Update: On Facebook, my friend Ian Milhiser points out that Justice Alito’s sister, Rosemary Alito, represents the petitioner. He would presumptively be recused on this case. Shall we say, vehicle problems.