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One of the never-ending debates among SCOTUS watchers is what is the difference between a “reverse” and “vacate.” When scoring cases for FantasySCOTUS, I often get into vigorous debates over scoring cases when there is a “vacate,” and whether that is actually a reversal of the lower court’s key holding. Now, we have a new insight into the answer.

Tony Mauro reports that Jack Metzler has published the Supreme Court’s internal style manual, which previously was not available to the public. How did Metzler get it?

“I don’t have a confidential source,” Metzler said. Instead, he went to the court’s library, which is open to members of the Supreme Court bar like him as well as court staff and certain congressional and executive branch employees. He was given a copy—unnumbered—of the 2013 version of the manual, which he then photocopied.

Critically, we learn this insight about the distinction between “reverse” and “vacate.”

But one substantive entry seems to resolve a long-simmering debate among court geeks about why the court, when it rejects a lower court ruling, sometimes “reverses” it and other times “vacates” it.

“In virtually every term,” the manual states, “the question arises whether the Court should vacate, as opposed to reverse, particular lower court judgments. The rule of thumb applied by the Office of the Clerk of the Court is easy to state, but may be difficult to apply in particular instances: This Court should reverse if it deems the judgment below to be absolutely wrong, but vacate if the judgment is less than absolutely wrong. Questions in difficult cases should be directed to the Chief Deputy Clerk.”

There you go. Reverse is when things are really, really wrong. Vacate is when it is somewhat wrong.

Good to know!

You can download the brief here. The brief I am authoring for the Cato Institute and others will be filed one week from today.

I have now submitted the scores for your midterms. (Please check your email for instructions on how to retrieve your scores). You can download the exam here, and the A+ paper here. The purpose of the midterm was to serve as a indicator of where you stand at the half-way point of the semester. As I expected, no one failed (and thus no one received a negative participation score), although the distribution was lower than my normal final exam curve.

Some high level thoughts on the exam:

1. The key to answering the first two questions relied on you to understand the distinctions between Pierson v. Post and Ghen v. Rich, the rule of capture v.  labor theory/custom,  and the philosophical writings of Locke/Barbeyrac and Grotius/Punfedorf. The best answers analyzed these questions by expressly referencing the case law, the theories, and the natural law writers.
2. Question #3 depended on a discussion of Johnson v. M’Intosh, and the different theories of acquiring land through discovery and conquest. Several of you picked up on the fact that Captain Jack was not the first person there–as Blackbeard previously buried treasure. Some of you explained that pirates were savages, and were like the natives in Johnson.
3. For Question #4, an ideal answer would explore the differences between mislaid and abandoned property. Also, you should discuss the relevant precedents of Armory, Hannah v. Peel, as well as the cases cited in that case–Sharman and Elwes. The more cases you cite, the more you demonstrate you understand the material.
4. For Question #5, there was space for you to shine. We discussed at some length in class the relationship between fairness and efficiency, and how that impacts labor theory and the rule of capture. This was also an opportunity for you to discuss certain economic theories, such as the Coase Theorem.

 

Based on my observations in the Court yesterday, my sense is that there is a strong chance Zubik v. Burwell deadlocks 4-4. If that happens, the Justices may be inclined to reargue the case next term in the hopes that Chief Judge Garland is confirmed as Associate Justice Garland. But the Court may still be short-handed if that happens.

On May 20, 2015, the D.C. Circuit voted to deny rehearing en banc in Priests for Life v. HHS–one of the cases that was consolidated with Zubik. Judges Pillard, Rogers, and Wilkins wrote a statement concurring in the denial of rehearing en banc. Judges Brown and Kavanugh both would have granted the petition, and wrote dissentals. While there is no recorded vote from Judge Garland, at a minimum we know the petition was “before” him, and he did not vote to rehear. Presumably he reviewed the petition, and decided not to vote for rehearing.

Generally speaking, voting not to rehear a case is not worth much, but at a minimum, it suggests that Garland did not think the panel opinion was worthy of reconsideration. Taking a more solid position, Jay Wexler noted in a Washington Post from last week that Garland can be viewed as expressing a view on the panel opinion–that it was not wrong.

In May, Garland voted in the majority in the 6-to-3 Court of Appeals decision to deny an en banc hearing, which would have been heard by the whole court. That denial meant that the earlier decision, against Priests for Life, stood — for now. The Supreme Court will have its say soon.

“Priests for Life [is] of course an incredibly important case,” Wexler emailed, “but Garland didn’t write anything separately on it. He simply voted to deny rehearing en banc, which doesn’t say much of anything about his views on the case, other than that he didn’t think the panel opinion denying the Priests’ religious freedom claim was clearly wrong.”

Is voting to deny rehearing en banc, which is a reflection that the judge did not think the panel decision was wrong, possible grounds for recusal? I don’t know the answer, but this question occurred to me yesterday as I was thinking about each of the seven plaintiffs who were being represented before the Court, and the potential circuit split that would result.

Such an issue could not be cured by striking out the Priests for Life petition, as–the argument goes–Garland would have weighed in on the underlying legal issue, regardless of who the plaintiff is.

If Garland did have to recuse, then we could still be stuck with eight Justices.

The lecture notes are here.

Courtesy of the Dukeminier & Krier web site, here is a map of the property at issue in Delfino v. Vealencis.

Here was the map for the proposed subdivision:

And here is the Vealencis family.

vealencis