DEC 24 - Berg v. Obama: A Second Conference Scheduled

Berg v. Obama: A Second Conference Scheduled

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The docket (see also “Supreme Court Info” on the sidebar) for Plaintiff Philip J. Berg’s case, Berg v. Obama, now shows the following update:

Dec 23 2008
Application (08A505) referred to the Court.
Dec 23 2008
DISTRIBUTED for Conference of January 16, 2009.
Jeff Schreiber at AmericasRight.com has his perspective on this update:
[T]he application for an injunction pending disposition of the petition for certiorari has been “referred to the Court” by Justice Antonin Scalia, with a conference scheduled for Friday, January 16, 2009.

“I’m certainly encouraged,” Berg told America’s Right. “I’m encouraged because it is still there.”
If the application for injunction truly is to be considered in conference by all nine Supreme Court Justices, it took a roundabout way to get there. It was filed and denied by Justice David Souter and refiled and once again denied by Justice Anthony Kennedy before making its way to Scalia’s lap.

Jeff goes on to discuss exactly what Berg is asking for in his suit (the injunction asked either (1) for a stay of the electoral college vote on December 15, 2008 or (2) for a stay of the counting of the votes on January 8, 2009) and some reasoning behind why the Justices are handling this case in the way in which they have.

In the meantime, the underlying petition for certiorari is scheduled for conference on Friday, January 9, 2009, and Berg seems to think that the selection of the date for conference could have something to do with the electoral votes being counted the day before.

“Until January 8, Obama is really nothing. He’s president-elect in name only, technically, until those votes are counted,” Berg said. “Seeing that we got to the Supreme Court before the other cases and are only now going to see conference weeks after they did, perhaps the timing is significant. I don’t know.”

My take follows…
On December 15, Berg refiled his case with Associate Justice Kennedy. The case was then distributed (presumably by Kennedy?) on December 17 for Conference of January 9, 2009. Yet, on the same day, Kennedy denied the case. So Berg resubmits to Associate Justice Scalia on December 18 who then presumably refers it to the full Court on December 23 for Conference of January 16.

Obviously there’s a whole lot of movin’ and shakin’ goin’ on here. While I don’t know enough of the logistics of how the Court operates to fully explain and subsequently understand these actions, Jeff (who has the legal education here) seems to think that January 9 is “for sure.” It’s the January 16 date that I’m not sure about.

I’ll go on record as disagreeing with Jeff, however, on the “round-about way to get there.” That is, he suggests that maybe the Justices are simply taking on these various cases under the auspices that denying the cases will effectively send the signal that they would go away, as it were. However, that’s irrational, in my opinion, for a few reasons:

Any and all Justices grant or deny hearings for writ of certiorari at their pleasure; if they really didn’t want to hear the case, they could simply deny them.

Denying a writ of certiorari does not set precedent; rather, it simply means that a lower court’s ruling holds.

The foregoing would suggest that the Justices take almost every case that comes to their doorstep, send it to Conference, only to turn around and deny in hopes that “someone is watching” (for lack of a better phrase) and will subsequently stop referrals.

I could also be all wet on this and have absolutely no idea what I’m talking about. However, I think all that one has to do is to put oneself into their shoes and think about the most rational, most logical thing that a Justice would do if they were getting numerous such cases. It’s not like the Justices have to consider any of them.

I’ll look forward to your comments, dear readers.
-Phil