Nothing is as tragic as First Monday.
You get yourself a haircut, spit-shine your court shoes, haul your fine self all the way to Maryland Avenue, and for what? For an opening day of the new term that invariably brings with it all the pomp and magic of a morning at the eye doctor’s. The Supreme Court veterans know this already. I should, too. What is it that makes me believe—year after year—that maybe this First Monday, something is going to happen?
Not sure what I expect to open the term. Cannon fire? Heralds with trumpets? Supreme Court Dancers in shiny black leotards with three gold bands around their upper arms? Sigh. What happens again this year is plain old oral argument. The exact same protocols and procedures you’ll see every other first Monday, every other fourth Tuesday, and every other 15th Wednesday of the term. Except all the reporters who skipped argument today will be devastated to learn that this truly was an extraordinary First Monday, only because the deathly boringness of the first case argued today was almost mystically eclipsed by the arcane hypertechnicality of the second one.
For those of you interested in such details, I did take a few notes:
- First question of the term was asked by Justice John Paul Stevens;
- The second question of the term was also asked by Justice John Paul Stevens;
- The amount of time elapsed before Justice Antonin Scalia started to verbally thump the hell out of appellate counsel in a case: 16 minutes;
- The amount of time elapsed before Justices Stephen Breyer and Clarence Thomas started whispering between themselves: 18 minutes;
- Supreme Court justice who appears most changed since last term: Justice Breyer—with new eyeglasses that make him look like a rock star;
- Supreme Court justice least changed since last term: That would be a tie among all the eight other justices who look exactly as they did last April, with the exception of Justice Ruth Bader Ginsburg, who might be wearing a new hair ribbon.
This strange, static quality of the high court—the feeling that absolutely nothing about it changes from month to month, or decade to decade, sits in sharp contrast to all the media buzzing about potential retirements and the indisputably geriatric quality of this court. But from where I sit, Justice Stevens, at 83, looks ready and able to do at least 20 more First Mondays. And I’m starting to suspect that at least some of the justices summer in that Scottsdale, Ariz., cryogenics lab where the body of former baseball legend Ted Williams is being suspended in frozen liquid for all eternity. The cryo-vacation would explain several inexplicable facts about the court: the unprecedented longevity of the current lineup; the dark, freezing conditions perpetually maintained in the courtroom; and the tendency of some justices to nod off during arguments (an incomplete thaw?).
But then, you’re wondering about today’s arguments.
The case I’d hoped to cover— Ford Motor Co. and Citibank v. McCauley—probably won’t affect you unless you’re one of the approximately 6 million people who obtained a Citibank credit card in the mid-’90s, based on Citibank’s promise that with every purchase charged, you’d earn a rebate toward a new Ford car. Inspired perhaps by the Ford Pinto, the program blew up in 1998, and a whole lot of disgruntled card-holders sued. The case went from at least six state class-action suits to a single case before a federal district court in Washington state. The suit was dismissed and remanded back to the state courts by the federal judge—who thought himself lacking federal jurisdiction to hear the case. This appeal concerns whether his dismissal was proper.
The reason today’s case won’t affect you even if you are one of the 6 million Americans with a million now useless “Fordy” points to put toward your own Mustang is that while the Supreme Court was supposed to rule on a very technical question regarding the “amount-in-controversy” necessary before a lawsuit can be filed in a federal court (the reason the Washington judge thought he lacked jurisdiction), the justices instead devoted the morning to arguing whether they had jurisdiction to hear the case either.
The nub of this jaunt through the sizzling world of federal civil procedure is whether the federal district court’s order dismissing the case was unreviewable by the 9th Circuit—who reviewed it anyway—and thus even more unreviewable by the Supreme Court—who agreed to review it when they granted certiorari in this case. What’s the problem? There’s a federal rule requiring that decisions be final before orders can be appealed. Because the judge simply remanded the whole mess of lawsuits back to the state courts, the case may not be over, the Washington judge’s decision not final, and the judgment not reviewable by any court of appeals. It almost makes you wish for a cryo-vacation of your own, doesn’t it?
Devastatingly suave former Solicitor General Seth Waxman, arguing the case for Ford-Citibank, suggests that this all presents an “interesting epistemological question” for the court: When is an order final? When does a case truly “end”? Where do good cases go when they die? Justice Breyer—always one to rise to any epistemological occasion—gets the plaintiffs’ attorney, Steve Berman, to concede that the district judge messed up when he remanded the case back to the various state courts rather than federal district courts. The rest of the justices seem to agree that it was a big mistake for him to do that, a bigger mistake for the 9th Circuit to review it, and the biggest mistake of all for them to agree to hear all this.
Speaking of dodging big mistakes, the Supremes declined to stay the order in the New Jersey ballots case in a one-sentence decision this afternoon. Since no one actually believed the court would risk the political capital necessary to wade into this mess, the decision was even less surprising than today’s lack of Supreme Court Dancers. Nothing dramatic ever happens on First Monday. And the justices clearly plan to keep it that way.