Hey it’s Friday! 🙂
From Above the Law, here is “Redskins Lawyers Act Like Complete Jerks, Surprising Nobody.”
As Alison Frankel of Reuters reports, the Redskins’ attorneys from Biglaw heavyweights Arnold & Porter and Quinn Emanuel Urquhart & Sullivan wrote:
“This court relies on a robust adversarial process to fully vet questions before it,” the cert petition said. “The Team, not (The Slants), is the best suited to serve this function here.”
The ATL piece is pretty snarky, but raises a few interesting points, about which I have no intention of being snarky.
If you’ve read cert pool memos, then you might know this is a thing. Clerks will assess the quality of a brief and the name recognition or lack thereof in analyzing whether to recommend a grant. A poorly written petition in a case that is otherwise certworthy may be denied while the Court waits for the better vehicle. The kind of candor from the Supreme Court bar in a cert petition, I would have thought, seems ripe for snarky commentary. But the “Team”‘s lawyers really are among the very best.
Also, “The Slants” are doing all this for the right to be be satirical. Not so the “Team”! These are very, very different postures. And surely the Court knows this.
Finally, trying to piece together the strategy here now that there appear to be only eight Justices for the foreseeable future. The Federal Circuit ruled in favor of “The Slants”, so IF there is a 4-4 ideological split on the Court on this issue (HUGE IF), then they prevail and Section 2(a) of the Lanham Act is unenforceable in the Federal Circuit. The “Team” lost at the district court level, and who knows what was going to happen at the Fourth Circuit, so they’re trying to short circuit the “Slants”, but for what purpose? Really, there’s no help for anyone at SCOTUS if there’s a 4-4 split. Unless the “team”‘s counsel suspects there’s not really a 4-4 split! Of course. I wonder what the strategy sessions have concluded in terms of each Justice. Surely there are the four First Amendment stalwarts that signed on to Citizens United and Hobby Lobby (the Chief, Kennedy, Thomas, and Alito), so which of the other four is likely to join?