much ado wrote: ↑Fri Dec 22, 2023 3:16 pm
bob wrote: ↑Fri Dec 22, 2023 3:03 pm
But delay clearly won this battle.
How much of a delay will it likely be?
Hard to say, as bad-faith actors could slow walk when it is advantageous to do so.
The D.C. Circuit will hear arguments on the 9th. It, recognizing the urgency, likely will issue a ruling sometime during the following week. My WAG is the panel will affirm the denial, but continue to stay while setting up an expedited schedule for further review.
So the defendant could seek en banc review. Not necessarily to win, but just to create delay. My WAG is the D.C. Cir. will deny a PREB (it won't rehear the case), but again continue to stay while setting up an expedited schedule for further review.
So then the president slow walks the cert. petition, with the federal government quickly agreeing there should be further review,* but on an expedited basis.
SCOTUS likely will take up the case. But whether it will then act urgently is an altogether different matter. Meanwhile, the stay continues to be in effect.
Recall that
Bush v. Gore went through SCOTUS in, like, five (calendar, not court) days. From the original application to a ruling on the merits. But that's because there was a hard deadline. In this case, there's a deadline, but it could be moved for many reasons. So (this) SCOTUS will not be constrained by such calls for urgency.
Bottom line, I wouldn't expect a decision from SCOTUS until at least February. I could also see SCOTUS not caring about the district court's deadline and blow off making its decision until June.
And, regardless of when SCOTUS rules, the defendant almost certainly will say once the case is returned to the district court, due to the stay (that he engineered), he'll need more time to prepare for trial.
* This is the cost of taking the Rule 11 gamble.
x4
He dutifully notes the D.C. Cir. already has scheduled oral argument on these issues for January 9.
, the memoranda (in Vladeck's link) are interesting. In a death penalty case, five justices basically accused the other four justices of abusing the Rule of Four to delay an execution. So it would appear the solution was to adopt a Rule of Five for Pre-Judgment petitions. (One could argue this new rule was limited to only death-penalty cases.)