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Circuit Justice Kennedy will be busy once again. The 9th Circuit panel, which last month ordered the release of 9,600 inmates, has denied the Governor’s request to delay the order. Now, California is once again going to the Supreme Court.

“We will seek a stay from the U.S. Supreme Court,” said state Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman.

She said the state would begin complying with the existing order, but “we look forward to making our case to the Supreme Court justices that no further reduction in the prison population is needed.”

Previously, Governor Brown said, “California is a powerful state. We can run our own prisons. And by God, let those judges give us our prisons back. We’ll run them right.” “Will the Court grant a stay?

Inmates’ lawyers said they doubted the Supreme Court would grant Brown a stay.

“The Court has laid to rest every argument that Governor Brown has for not promptly reducing the prison population to constitutionally acceptable levels so that prisoners can get adequate healthcare,” said Don Specter, lead attorney for the Prison Law Office, representing inmates in the core medical care lawsuit.

Justice Kennedy may have other thoughts. Some history is helpful here.

When Brown v. Plata was decided in 2011, and the Supreme Court per Justice Kennedy effectively ordered California to release 40,000-ish prisoners for its over-crowded system, many contended that the goal would simply be impossible.

Justice Kennedy was fully aware of this, and he prospectively admonished the District Court to be generous about granting continuances:

The three-judge court did not err in providing a 2-year dead-line for relief, especially in light of the State’s failure to contest theissue at trial. The State has not asked this Court to extend the dead-line, but the three-judge court has the authority, and responsibility,to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes re-quire that court to exercise its jurisdiction to accord the State consid-erable latitude to find mechanisms and make plans that willpromptly and effectively correct the violations consistent with publicsafety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observa-tions reflect the fact that the existing order, like all ongoing equitablerelief, must remain open to appropriate modification, and are not in-tended to cast doubt on the validity of the order’s basic premise.

Justice Scalia called out this chicanery:

I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achievethe benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the releasedinmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on thatmotion first, subject to review for abuse of discretion if it declines to modify the order.
…
So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. After all, did we not want, and indeed even suggest, something better?

This could be an amazing constitutional crisis if the case goes back to the Supreme Court. Justice Scalia will enjoy writing a dissent, even if from denial of cert.

Last week, a judge in New York dismissed a suit against which, in the words of the Times, was “aimed at stifling New York City’s plans to allow taxi riders to hail yellow cabs using smartphone apps.” This ruling has paved the way for Uber to enter the New York City Market.

On Tuesday night, a company called Uber, which entered the yellow taxi-hailing market last year before being rebuffed by the city, said that its service was available, one week after a lawsuit challenging the use of such apps was dismissed. The city announced on Friday that Uber’s was so far the first and only app to be approved.

Uber has been opposed by livery and black car operators, “who argued that the program would violate the city’s longstanding ban on prearranged rides in yellow taxis.”

In New York, only yellow taxis–with medallions, can pick up fares from the street. Black cars can only be dispatched by phone. But uber provides a new dynamic. You can request a car, electronically, to pick you up wherever you are. No need to hail an expensive taxi. Just uber it!

I previously blogged about the barriers to entry for disruptive technologies here.

Update: One day later, a judge issues an injunction halting Uber.

The oral arguments in the DOMA case really hit home how messed up the term”Rational Basis” is.

Under Lee Optical rational basis, the government doesn’t even need to provide a rationale for a law’s constitutionality. But under all other types of rational basis, the Court behaves like a Court, and actually looks at what the government did when enacting the law.

Which kind of rational basis review is Justice Kagan doing here?

JUSTICE KAGAN: Well, is what happened in 9 1996 — and I’m going to quote from the House Report 10 here — is that “Congress decided to reflect an honor of 11 collective moral judgment and to express moral 12 disapproval of homosexuality.” 13 Is that what happened in 1996?

MR. CLEMENT: Does the House Report say 15 that? Of course, the House Report says that. And if 16 that’s enough to invalidate the statute, then you should 17 invalidate the statute. But that has never been your 18 approach, especially under rational basis or even 19 rational basis-plus, if that is what you are suggesting. 20 This Court, even when it’s to find more 21 heightened scrutiny, the O’Brien case we cite, it 22 suggests, Look, we are not going to strike down a 23 statute just because a couple of legislators may have 24 had an improper motive. We’re going to look, and under 25 rational basis, we look: Is there any rational basis for the statute? 2 And so, sure, the House Report says some 3 things that we are not — we’ve never invoked in trying 4 to defend the statute. 5 But the House Report says other things, like 6 Congress was trying to promote democratic 7 self-governance. And in a situation where an unelected 8 State judiciary in Hawaii is on the verge of deciding 9 this highly contentious, highly divisive issue for 10 everybody, for the States — for the other States and 11 for the Federal Government by borrowing principle, it 12 makes sense for Congress -­

Likewise, Justice Breyer is going out of his way not to imagine what a rational basis could be for his law (it really isn’t that hard):

MR. CLEMENT: Again, I think the right way 9 to analyze it would be, you know, is — is there any 10 distinction drawn that implicates what level of scrutiny 11 is implicated. If the level of scrutiny is a rational 12 basis, then my answer to you would be, yes, they can do 13 that. I mean, we’d have to talk about what the rational 14 basis would be -­ 15 JUSTICE BREYER: No, there isn’t any. I’m 16 trying to think of examples, though I just can’t imagine 17 what it is. 18 MR. CLEMENT: Well, I — I think the uniform 19 treatment of individuals across State lines -­ 20 JUSTICE BREYER: All right. So you’re 21 saying uniform treatment’s good enough no matter how odd 22 it is, no matter how irrational. There is nothing but 23 uniformity. We could take — no matter. Do you see 24 what I’m — where I’m going? going, Justice Breyer. JUSTICE BREYER: All right. (Laughter.)

So long as Paul Clement has the burden of showing why the law is not irrational, DOMA can’t survive. This is the fallacy of rational basis review. Whoever bears the burden loses.

Of course, Clement thinks three levels of scrutiny are enough (I chuckled at the Buck v. Bell reference in response to a Breyerian question):

JUSTICE BREYER: That means courts — the 25 courts, they do dictate in respect to time. They 1 dictate in respect to age. They dictate in respect to 2 all kinds of things. And what I’m looking for is: 3 What, in your opinion, is special about this homosexual 4 marriage that would justify this, other than this kind 5 of pure uniformity, if there is such a thing? MR. CLEMENT: Well, let me — let me just 7 get on record that — to take issue with one of the 8 premises of this, which is we are at somehow rational 9 basis-plus land, because I would suggest strongly that 10 three levels of scrutiny are enough.

Justice Ginsburg hits right back at rational basis:

Clement: I would say also the Federal Government has conceded in this litigation that there is a rational basis for this statute, something else to keep in mind. I would also say that this provision is not so unique. The very next provision in the Dictionary Act -­

JUSTICE GINSBURG: Rational basis, Mr. Clement — is a problem in your briefing. You seem to say and you repeat it today that there is three tiers and if you get into rational 4 anything goes. But the history of this Court is, in the 5 very first gender discrimination case, Reed v. Reed, the 6 Court did something it had never done in the history of 7 the country under rational basis. There was no 8 intermediate tier then. It was rational basis.

MR. CLEMENT: Well -­ 10

JUSTICE GINSBURG: And yet the Court said 11 this is rank discrimination and it failed.

Between yesterday’s argument and today, I think the time is ripe for finally slaying this rational basis and rational basis-plus dichotomy. Stop dragging down rational-basis plus, with Lee Optical rational basis (what is really a political question). I’m gonna have to write something about this now.

Update: Damon Root highlights another exchange from the arguments about Lee Optical.

GENERAL VERRILLI: The question in the case, Justice Alito is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed. And it — and it does not. The only way in which — that BLAG’s arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard of Lee Optical.

GENERAL VERRILLI: Well, the question before the Court is whether the exclusion that DOMA imposes violates equal protection, and it does violate equal protection because you can’t treat this as though it were just a distinction between optometrists and ophthalmologists, as the Lee Optical case did. This is a different kind of a situation because the discrimination here is being visited on a group that has historically been subject to terrible discrimination on the basis of personal -­

Damon adds:

It was an atypical performance by the Obama administration, which is normally in the habit of reading federal power in the broadest of terms. For instance, in the main brief the federal government submitted in last year’s health care case, it asserted, “Congress had far more than a rational basis for concluding that” the absence of health insurance “has a deleterious effect on interstate commerce.”

But unlike the health care case, where the White House wanted to save the law and therefore sought maximum deference from the justices, the federal government in this case wants to see DOMA struck down and therefore favors more aggressive judicial tactics—hence the lobbying effort against relying on Lee Optical as a relevant precedent.

This is not what I would call an internally consistent legal philosophy, but that impediment has not stopped the White House before.

With “Attorney General,” general modifies the noun attorney. Thus, when there is more than one Attorney General, you would write “Attorneys General.” This makes sense. You make the noun plural by adding an “s” to it.

The WSJ Law Blog wrote a post about this some years ago.

Researching the term’s history, our crack staff came across this article by Michael Herz, a professor at Cardozo Law School. Historically, “general” refers not to rank or command but to the breadth of their practice. The first known use of the term “attorney general” occurred in England in 1398 in a certificate from the Duke of Norfolk’s four attorneys general. These lawyers were known at first as general attorneys, and later came to be known as attorneys general. Hence, the awkward phrasing.

This is also why referring to the Attorney General or the Solicitor General as simply “General” is wrong and undeserved, with all respect to the Attorney General and Solicitor General. The only General at the Supreme Court is General Suter.

But why does it get messed up when you make it possessive. Say, for example, you wanted to refer to a brief the Attorney General filed.

I would think it is correct to write “the Attorney’s General brief.” But that sounds off. I would write “the Attorney’s General’s brief.”

But why would you make the adjective possessive?

A quick Westlaw search of AllFeds confirms this. I found only 224 hits for “Attorney’s General” and 10,000+ hits for “Attorney General’s.”

In the Supreme Court database I found 2 hits for “Attorney’s General.” One from a 1982 O’Connor opinion in Landon v. Plasencia that I am pretty sure is a typo:

Voluntary departure for an alien who would otherwise be deported also means that he will not be subject to s 212(a)(17), 8 U.S.C. s 1182(a)(17), which at the time of Plasencia’s hearing, required aliens who had once been deported to seek prior approval of the Attorney’s General before re-entering

The other is from Justice McLean’s dissenting opinion Ex Parte Wells (1855). I also think this is a typo.

Nor have either of the laws been referred to by any one of the attorney’s general who have been consulted on the subject, and who have given elaborate opinions, and particularly Mr. Wirt, who dwells upon the difficulty, if not impracticability, of carrying out the condition on which the pardon was granted, without specific legislation

So what gives.

Why is it Attorneys General but not Attorney’s General? Or Solicitors General but not Solicitor’s General?

I usually avoid this problem by writing AG’s or SG’s, but that can’t be right.

I guess that we have treated the word General as a noun for purposes of the possessive, as we treat it as a noun for addressing the office-holder as General. So why must we treat the word General as an adjective only for purposes of pluralization!?

In Paul Clement’s application to SCOTUS in an NLRB case, he uses the word “cert-worthy.”

This case not only presents three related but independently cert-worthy questions, such that there is an unusually strong likelihood that this Court would review should the Court of Appeals affirm, but also involves particularly strong equities that make the risk of irreparable injury absent a stay concrete and acute

I checked the Westlaw database for cert petitions: there are 455 hits for “certworthy” and 624 hits for “cert-worthy.”

I guess “cert-worthy” is more accepted, but not by much. I’m inclined to go with whatever Paul Clement thinks.

Of course, the phrase “cert-worthy” reminds me of the Seinfeld episode with “sponge-worthy.”