Will Bode

We had a judge in the building yesterday, Judge Toby Heitens from the Fourth Circuit.

We had a judge in the building yesterday, Judge Toby Heitens from the Fourth Circuit.

Yeah, who is a judge who had argued a bunch of Supreme Court cases prior to taking the bench. He was an assistant to the Solicitor General. He was the Virginia Solicitor General. So a really smart guy. I think our students really enjoyed his visit.

Yeah, who is a judge who had argued a bunch of Supreme Court cases prior to taking the bench. He was an assistant to the Solicitor General. He was the Virginia Solicitor General. So a really smart guy. I think our students really enjoyed his visit.

He has not been summarily reversed. But if he ever is, I guess I'll follow up.

He has not been summarily reversed. But if he ever is, I guess I'll follow up.

But those are usually very different types of cases. Those tend to be... you know, a lot of cases where lower court is granted some kind of injunction and they're running to the court to roll it back versus the kind of core. I mean, I feel like, you know, there used to be a lot of criminal cases in both directions, right?

But those are usually very different types of cases. Those tend to be... you know, a lot of cases where lower court is granted some kind of injunction and they're running to the court to roll it back versus the kind of core. I mean, I feel like, you know, there used to be a lot of criminal cases in both directions, right?

You know, like you said, the EDPA cases, the Sixth Circuit or the Ninth Circuit granted relief to some state prisoner on some Ground that really is hard to reconcile with the limits on federal habeas relief in EDPA, Anti-Terrorism and Effective Death Penalty Act of 1986. And those aren't moving over to other shadow docket things. Maybe lower courts aren't doing that as much.

You know, like you said, the EDPA cases, the Sixth Circuit or the Ninth Circuit granted relief to some state prisoner on some Ground that really is hard to reconcile with the limits on federal habeas relief in EDPA, Anti-Terrorism and Effective Death Penalty Act of 1986. And those aren't moving over to other shadow docket things. Maybe lower courts aren't doing that as much.

That's possible? I don't know. So yeah, I don't have a hypothesis. But certainly some of the bandwidth, I mean, they have finite time. They've got a lot of other tasks and leisure activities and travel. And so there just may be a limit on how much non-merit stuff they can do, or at least they're willing to do.

That's possible? I don't know. So yeah, I don't have a hypothesis. But certainly some of the bandwidth, I mean, they have finite time. They've got a lot of other tasks and leisure activities and travel. And so there just may be a limit on how much non-merit stuff they can do, or at least they're willing to do.

To the extent that they're – I think it's understood and some of the justices have sort of confirmed this offhandedly that there is a rule or a practice of requiring six for a summary reversal that I do not believe was always the case. I think that's something that may have emerged more recently. Yeah.

To the extent that they're – I think it's understood and some of the justices have sort of confirmed this offhandedly that there is a rule or a practice of requiring six for a summary reversal that I do not believe was always the case. I think that's something that may have emerged more recently. Yeah.

As the court gets the partisan ideological divide gets more skewed, it may make it harder to build those coalitions, right? So if there's six conservative justices, you can have six of them to do a summary reversal. But if there's a case that cuts in the other ideological direction, you'd have three liberal justices and they'd need to find three more.

As the court gets the partisan ideological divide gets more skewed, it may make it harder to build those coalitions, right? So if there's six conservative justices, you can have six of them to do a summary reversal. But if there's a case that cuts in the other ideological direction, you'd have three liberal justices and they'd need to find three more.

All of the others. Yeah. Although, I mean, the Liptack article does quote things where Alito in 2021 says, we have a practice of not issuing a summary reversal unless at least six of us agree.

All of the others. Yeah. Although, I mean, the Liptack article does quote things where Alito in 2021 says, we have a practice of not issuing a summary reversal unless at least six of us agree.

Right. So, I mean, there is some, there does seem to be some six rule.

Right. So, I mean, there is some, there does seem to be some six rule.