SOME CURRENT APPELLATE DEVELOPMENTS

(Posted July 28, 2023) The opinion mill at Ninth and Franklin was quiet this week, so let’s see what else is happening on the appellate landscape.

Shadow-docket pipeline ruling

SCOTUS issued a short unsigned order yesterday that allows construction of the Mountain Valley Pipeline to proceed while the parties duke it out in the lower courts, thus vacating a stay issued by the Fourth Circuit. The order says nothing about dissents, so presumably the vote was unanimous. This stems from an emergency petition filed just two weeks ago. As with all such orders, there was no oral argument; the Court decided the petition on briefs alone as part of its “shadow docket.” Courtwatchers have noted the recent sharp uptick in such out-of-court proceedings.

Here in Virginia, there’s something like a shadow docket, but it’s nowhere near as busy as it is across the Potomac. Petitions for review of injunctions are easy examples of our version of this behind-the-scenes process. Because I agree that sunlight is a wonderful disinfectant when it comes to government operations, I’m glad that our Robes don’t follow the example of their federal brethren and sistren.

Diversity concerns in OSG

The Washington Post reported on Tuesday that US Solicitor General Elizabeth Prelogar, who unsuccessfully defended collegiate affirmative-action programs this past term, is having difficulty achieving diversity within her own office. The Office of the Solicitor General – which contains many of the very brightest lawyers in government service – overwhelmingly comprises white men.

She isn’t alone in her troubled efforts to diversify her appellate staff. I’ve talked with my pals in the appellate guild here about the largely monochromatic appellate bar. There are very, very few minority appellate lawyers in Virginia, despite there being no barriers to entry. Quite the contrary; many of us will cheerfully mentor a bright young minority lawyer if given the chance.

One lawyer who’s trying to do something about this is Juvaria Khan of The Appellate Project up in Washington. I haven’t seen any statistics on how effective the Project’s efforts have been, but I choose to be optimistic.

A nation ponders its highest court

You almost never read on this site about matters outside our nation’s borders, but events in Israel are hard for appellate lawyers to ignore. Earlier this week, the Knesset passed legislation that sharply curtailed the powers of Israel’s highest court. Depending upon your point of view, the legislation was either badly needed judicial reform or an outrageous power play designed to insulate the government from any real check on its power.

Unlike the United States, Israel doesn’t have a formal written constitution, so the nation lacks a touchstone like ours for determining whether the legislature can thus cut off the judiciary. I’ve read that a challenge to the new legislation was filed virtually immediately, and would reach the Supreme Court of Israel quickly. The biggest question there may be what happens if the court strikes down the very legislation that deprived it of power – presumably including the power to strike it down. In an interview on CNN yesterday, Prime Minister Netanyahu declined to commit to honoring any such possible judicial ruling.

I can’t look at this as anything other than a constitutional crisis without a constitutional anchor. When two branches of government disagree on an issue of separation of powers like this, how do you reach a reasoned answer? Because I don’t have the perspective necessary to assess this fully, I won’t wade in with any opinions, other than to say that the appellate lawyer in me is quietly rooting for the judiciary on this one.

Writ panels draw nigh

The Supreme Court of Virginia’s next public gathering will be for writ panels. Those convene in just under five weeks, on August 30. This is normally the season of road shows, where the court sends two panels off into the countryside, bringing the justices to the people. Alas, there won’t be any road shows this time around; in what I earnestly hope is a one-time arrangement, all of the panels will convene in Richmond. I expect that the Chief Staff Attorney’s Office will send out notices shortly, and I’ll look forward eagerly – and a little anxiously – to seeing how many petitions the justices will consider.

As I’ve reported previously, the writ process has slowed to a trickle. The court has issued only 13 writs all year – that’s not a typo; it’s thirteen – in all case types, and there are only three more writ sessions left in the year. Most of those are criminal or habeas cases; I see only two that are purely civil.

This will, by a comfortable margin, be the slowest year for merits decisions in Richmond in my lifetime. My best guess is that the last time the court issued fewer opinions than it will issue this year was during the Civil War, when the court all but shut down. (In the five-year period starting in January 1862, the court issued just 18 opinions. Given the other events of the day, I think we can cut that set of Robes some slack.) For a quick comparison, here’s a list of the number of appeals decided by published opinions and unpublished orders in single years with a ten-year interval:

2022: 70

2012: 188

2002: 210

1992: 274

1982: 258

1972: 242

At the pace we’re going now, we’ll probably see something like 25-30 merits decisions this year.