(Posted September 27, 2023) Tomorrow is Thursday, and thus possibly an opinion day in the Supreme Court of Virginia. It’s also a day when I’ll be away from the keyboard all day, a guest of the good folks at McGuire Woods at the Virginia Appellate Summit.

That means that if the justices happen to hand down their first merits rulings in over two months tomorrow, I won’t be able to post analysis until Friday morning. Please bear with me; this is a good cause to be out of the office.




(Posted September 21, 2023) “Can’t act; slightly bald; can dance a little.” (Casting director’s report on an early 1930s screen test by Frederick Austerlitz, better known to us as Fred Astaire.)


A torrent of writs

Okay; I exaggerate. The Supreme Court has awarded five appeals from the batch of petitions argued three weeks ago. That feels like a torrent; before this batch, the court had awarded just 13 appeals all year. These five are likely destined for the January session; possibly February.

As for the future, there are two more writ panels in 2023: one in mid-October and one in early December. Any writs granted in those writ sessions will definitely be argued in 2024.


The other side of the building

The Fourth Circuit’s recent announcement of the September argument docket contains this passage: “Due to construction, the Bank Street entrance is closed until further notice. Please allow extra time for security screening.” I’m not sure what work is in progress at the foot of Capitol Square, but lawyers, litigants, and courtwatchers will have to use the (very serviceable) Main Street entrance.

This development may seem mundane to you; you may be surprised that I mentioned it. But in this period of appellate doldrums in Richmond, it qualifies as a major news flash.


Last call for the Virginia Appellate Summit

The Summit convenes in one week in Richmond. It’s the best gathering of the appellate benches and bar in the Commonwealth. The good folks at McGuire Woods have again generously donated the use of space in their downtown Richmond office for the event; given my long devotion to the Summit, I’m profoundly grateful to that firm.


Humanizing the robe

As I was typing today’s update, my estimable legal assistant, Debi Campbell, handed me today’s mail, consisting of a single item: Volume 3 of the advance sheets for 301 Virginia Reports. This, too, looked like a minor news item; akin to my reporting to you about the light traffic on my commute this morning. But opening the volume gave me a pleasant surprise.

The introductory matter in this volume, before we get to the blood-and-guts of the opinions, comprises proceedings of the Supreme Court in early November 2022. It is the record of special sessions of the court for the investiture of Justice Thomas Mann and the portrait presentation – the “public hanging” – for Senior Justice Bill Mims.

Perhaps you’ve seen these often-dry inclusions at the beginnings of various volumes of the reporter; maybe you’ve never read them. (After all, they’re pretty useless as citations for legal authority.) Please take my advice and read these two when you can. They’re wonderful descriptions of the men, not just the jurists. They include laughter and wit and gratitude and humility and even love. Justice Mims mentions with fondness the Oxford comma, for which he gets extra credit in my book.

If you haven’t met these two men personally, I hope you’ll have the occasion; they’re both extraordinarily pleasant and gracious. This publication ensures that posterity will know that, too.




(Posted September 7, 2023) We’re still hearing crickets at Ninth and Franklin – maybe the justices are trying to outwait me – so let’s peer around the appellate scene to see what else is happening.


Two Summits draw nigh

Registration is open for the Virginia Appellate Summit, September 28 in Richmond. That’s just three weeks from today. This is the largest and best gathering of the appellate bench and bar in the Commonwealth. Expect MCLE-approved programming and the chance to rub elbows with your colleagues from across Virginia.

In the past, the Virginia Appellate Summit has been roughly triennial, but the program planners at the Virginia Bar Association have decided to host these events every other year, starting now.

The ABA’s Appellate Summit (that’s a cognomen; the formal name is Appellate Judges Education Institute) meets November 2-5. The ABA Summit moves around from year to year, but every three or four years it comes back to Washington, DC; this is one of those years. The event will take place at the JW Marriott in the heart of the District.

The ABA Summit is the granddaddy of American appellate gatherings, and was the inspiration for the Virginia Summits. Attendees traditionally get to see at least one SCOTUS justice up close; this year it’s Associate Justice Kavanaugh. You should be able to satisfy a full year’s worth of MCLE requirements by attending.

If you go to one of these programs, you’ll see me there; if you attend both, you’ll see me twice. If you have an appellate practice, you belong at these events.


If you can’t beat ‘em, impeach ‘em

The New York Times has a story out of Wisconsin, where recent elections transferred control of that state’s supreme court from Republicans to Democrats. (In the Badger State, judges run for popular election and are openly members of political parties.) The election of Justice Janet Protasiewicz likely resulted from Wisconsin voters’ distaste for Dobbs v. Jackson Women’s Health; it was a spirited election that Protasiewicz won handily over a Republican rival.

Among the key issues facing the Wisconsin Supreme Court this term will be a challenge to the openly gerrymandered districts of that state’s general assembly. The new justice spoke disparagingly about the existing map during the campaign, so GOP legislators have begun to fret about the lifespan of their legislative supermajority now that she’s part of a 4-3 Democratic majority. According to the NYT story, they’ve hit on the idea of impeaching the new jurist before she can hear and vote on the redistricting challenge.

In my mind, this tale belongs on the growing list of reasons why Virginia’s system, while not perfect, is vastly preferable to the ones used in most other states. The idea of popularly electing judges and justices gives me an uneasy feeling in my gut; the thought of impeachment for purely political reasons, instead of for misbehavior in office, is abominable. But the Wisconsin legislature is dominated by Republicans, thanks to that very gerrymandering, so the novel effort may succeed.


Next step in the musical-buildings game

You’ve played musical chairs, right? The branches of Virginia’s government are doing that on the scale of buildings. The new General Assembly Building, which has been under construction for a few years, will start welcoming occupants next Monday, and the public a month after that on October 11. The modern replacement for the legislature’s old headquarters should be impressive; it’s built on the site of the original at Ninth and Broad, a short walk across the lawn from the State Capitol.

What does this have to do with appeals? Here’s what: The legislature has temporarily occupied the Pocahontas Building on Main Street, waiting for next Monday to arrive. The Pocahontas Building is the former home of the Office of the Attorney General, which moved into its current beautiful digs on Ninth Street a few years back. When the OAG moved out, the General Assembly moved in.

Still nothing appellate? Ah, but we’re getting there. The next occupants of the Pocahontas Building will be the judiciary. The building will be demolished, or perhaps just gutted and then rebuilt from within, and the new structure will eventually hold the Supreme Court and Court of Appeals of Virginia. I don’t have any secret information about this transition, so I can’t give you anything juicy except the prospect that one day, years from now, appellate lawyers will present oral arguments to appellate panels and en banc courts there.

Now, I have no idea what will eventually become of the current Supreme Court Building whenever our appellate courts move out. Perhaps Aunt Virginia can think of another governmental agency to move in, to keep the musical-buildings game going.