Loads Of Good Stuff In This Cert-Stage Reply Brief!

I enjoyed reading the reply brief in Baker Botts L.L.P. v. ASARCO LLC, which was featured on SCOTUSBlog today. In the first paragraph I've excerpted below, the petitioner observes that the respondent's BIO reverses course from the position the respondent took below. I won't bother explaining the context since I think it's clear from the following:

4. ASARCO was more honest about Smith in its briefing below. It never contended that it could prevail under Smith because its objections were non-frivolous or caused "meaningful reduction[s]." Instead, ASARCO urged the Fifth Circuit to reject Smith as "wrongly decided" and "inconsistent with [opinions] that denied fees for defending a fee application." 5th Cir. Reply Br. 22, 26 (filed Mar. 8, 2012). Having persuaded the Fifth Circuit, ASARCO cannot now credibly claim that the split makes no difference on these facts.

In this next paragraph, the petitioner does something I've commented on elsewhere: Treats certworthiness as a legal proposition:

1. ASARCO does not dispute that this Court commonly resolves 1-1 or 2-1 splits involving bankruptcy. See, e.g., Clark v. Rameker, 134 S. Ct. 2242, 2246 (2014) (1-1 split between Fifth and Seventh Circuits); Radlax Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012) (petition and BIO debate 1-1 or 2-1 split involving Fifth Circuit); Hall v. United States, 132 S. Ct. 1882, 1886 & n.1 (2012) (1-1 split between Eighth and Ninth Circuit when granted; Tenth Circuit ruled post-grant). That practice honors the Constitution's call for "uniform laws on the subject of Bankruptcies throughout the United States," Art. I, ****8, cl. 4. And it reflects that "the current appellate structure of the bankruptcy system" results in "relatively few bankruptcy appeals mak[ing] their way up to the circuit courts." Pardo & Watts, The Structural Exceptionalism of Bankruptcy Administration, 60 UCLA L. Rev. 384, 438-39 (2012); see Florida Amicus Br. 17. ASARCO's claim that the issues reaches the circuit level only once a decade makes review more urgent to avoid consigning the bankruptcy system to disarray for another decade or more.