I have a sneaking suspicion that, WaPo editorial entreaties and politicians’ bluster to the contrary notwithstanding, the District will not file a petition for a writ of certiorari. If it fails to do so, the D.C. Circuit’s petition is the law only in the District, and is nothing more than persuasive authority for any other Circuit.
It’s a rather common tactical decision among the Left/unions in my practice. They bite the bullet and take a bad decision in a single Circuit, because they fear the adverse impact of a Supreme Court decision, which of course has nationwide application. The last three times they took one of our Circuit-court “wins” to the Supreme Court — Teachers Local No. 1 v. Hudson, 475 U.S. 292 (1986); Communications Workers v. Beck, 487 U.S. 735 (1988); and Air Line Pilots Association v. Miller, 523 U.S. 866 (1998) (the party seeking review is listed first) — they lost. Rather badly.
And while the Supreme Court reverses in about 65% of the cases they take (the last statistic I saw on the issue), there is that 35% of cases where they take the case to affirm and apply a good Circuit-court decision nationwide.
'Course, I could easily be wrong.
2 comments:
I think you're going to be wrong on this one. DC's population as a whole wants the ban and they'll scream at any politician who doesn't fight fight fight for it. I don't think the DC residents as a whole would understand the tactics/strategy involved. And more importantly, I don't think DC politicians believe they can explain that strategy to their constituents.
You could be right, although I wonder whether your assessment of "DC's population as a whole" is accurate, or whether you're just confusing them with the far Left elites in charge. This may well be a case where the legal calculus counsel's one strategy, and the political calculus mandates another.
Of course, if they do seek review, and the D.C. Circuit is affirmed --- and I think it's opinion is unassailable; moreover, the Court's current makeup suggests an affirmance --- they'll then have to explain THAT result.
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