MR. CLEMENT: Well, a couple of things, Justice Sotomayor. I went back to the Tropiano case, because it is sort of the pro genitor of this whole line of Second Circuit cases, and I noticed two things. One, I noticed it was written by a district court sitting by designation. So, I mean, I — I don’t mean anything by that other than this is not Marbury. Second, I would say that the second thing I noticed is that the debt -
JUSTICE SOTOMAYOR: Oh, I think when I sat as a district court judge, I would have been insulted by that.
MR. CLEMENT: Well, it’s not — it’s a good thing you’re no longer sitting in that capacity, Your Honor -
JUSTICE SOTOMAYOR: Okay. It’s really -
MR. CLEMENT: — because I — I certainly mean you no offense. You could write Marbury here. So the — the difference is, Your Honor, that that could have also been, I think, actually prosecuted as a property crime, because in that case
In my clerking experiences, it was not unheard of to give less weight to an opinion written by a visiting judge. You just weren’t suppose to acknowledge it…to a judge who sat by designation…who now sits on the Supreme Court.
I can’t wait for the audio on this one.
H/T Adam Liptak