Certworthiness As A Legal Proposition, Part 2

Back in April, I blogged about a tactic SCOTUS advocate Jeff Fisher employed in his Wurie cert petition: Treating certworthiness as a legal proposition by citing to cases where the Court did grant cert. Today's "Petition of the Day" over at SCOTUSBlog features a similar example of certworthiness as a legal proposition.

Check out footnote 1 of the petition in Khan v. Chowdhury, where the question is whether, after one of the claims in a case is set aside after the verdict, the court must also vacate the jury's general verdict. Petitioner argues that the case presents a clean vehicle for the resolution of the issue. Footnote 1 reads:

Thus, this petition is distinguishable from recent petitions raising this issue, which were denied. For instance, the Court denied a petition challenging the Fourth Circuit’s decision in Shandong Linglong, supra, at 12. But in that case, the Brief in Opposition argued that the case involved a special verdict, and “this special verdict case is not a suitable vehicle for resolving any purported conflict regarding whether and how courts apply the harmless error rule to general verdicts.” Brief For Respondent In Opposition at 14, Shandong Linglong Rubber Co., Ltd. v. Tire Engineering & Distribution, LLC, 133 S. Ct. 846 (2013) (No. 12-444), 2012 WL 8969035. Similarly, this Court denied a petition challenging the Sixth Circuit’s decision in Frankenmuth, supra, at 9. In that case, however, the Brief in Opposition primarily contended that the case was a poor vehicle because both theories that were submitted to the jury were invalid. See Brief For Respondent In Opposition at 8, Loesel v. City of Frankenmuth, 133 S. Ct. 878 (2013) (No. 12-563), 2012 WL 6204242 (“This case does not warrant the Court’s review. Above all, it is an exceptionally poor vehicle for addressing the question petitioners present because the only remaining ‘factual basis’ for the city’s liability should never have reached the jury.”). Because there is no question that the verdict form did not distinguish between the TVPA and the ATS claim, and because Petitioner is not challenging the TVPA verdict in this Court, there is no possibility that these vehicle problems could arise here.

Pet. at 15 n.1.

Petitioner obviously felt that these other cert denials were fresh enough in the Court’s mind that they had to be addressed. I don’t have enough data to know whether this is an effective strategy. Here are my speculative thoughts anyways.

It’s hard to imagine that the Court’s institutional memory for this sort of thing is so strong that Justice Kennedy will be reading a cert recommendation from his law clerk and think, “Well gee, we just denied on a similar issue last year, so let’s deny this one too.” Probably not how it works. But, the petition does deal with the ATS. After Kiobel, it's a pretty hot topic. So the Petitioner might think that the Court is paying particularly close attention to ATS issues. (Although, from my quick reading of the petition, this isn't a Kiobel-related issue; the result in Kiobel was merely necessary to the verdict in this case, but not relevant to the particular issue now being raised).

MOreover, while the footnote might have been targeted at the clerks (since they’re the first level of petition-review), the clerks who read the prior petitions will almost certainly not be the same clerks who read this petition.

Either way, why not let the Respondent raise this issue first, at which point Petitioner can deal with it in the reply? So I don't think that this tactic played out as nicely here as it did in Wurie.