Once Again, No Decision in Drake

Gavel in Court

Today the Supreme Court was releasing its decision on cert petitions, and Drake was high up there on the list of cases to watch. Unfortunately the Court has still not yet decided either way, and we do not have a decision. There are a lot of possibilities at work here, but it would amount to tea leaf reading and rank speculation, so I won’t engage in it. Drake v. Jerejian is the case challenging New Jersey’s restrictive permitting practices. The Court is running out of cases it can take to resolve the circuit split over the right to carry firearms outside the home.

13 thoughts on “Once Again, No Decision in Drake

      1. I’d be extremely surprised if there are electronic devices in these conferences, or if the conference rooms are not swept for listening devices on a regular basis.

    1. Conferences are probably boring for most cases, even for those cases most people find fascinating. Think of it this way: you are working with 8 other people for the rest of your lives*.

      What are the odds you are surprised by anything that happens between you and those eight people, in the same room, every week?

      For life. Think about that.

      * I know there is life after SCOTUS for justices**.

      ** Not really. Even those who stay active act like they wish they had never left (recent history, ahem).

      1. Oh, I’m sure the actual discussions would be pretty banal. The alignments of voting (or whatever it is that they do to decide to grant, deny, or table) is the interesting part.

        At least, I hope the actual discussions are banal, given that the cases haven’t been argued

  1. The delay may be positive as most all grants this term have been relisted certs, to the best of my knowledge.

    The relists may indicate for the justices and clerks to study the petitions more before a vote on hearing.

  2. The Court is likely waiting on a probable cert petition by California’s attorney general in the Peruta case. Drake is being held as a back-up if the Ninth Circuit reverses Peruta en banc.

    1. At this point, SCOTUS could reach down and grab Peruta if they wanted to use that instead of Drake – I forget what the Writ is called, but it’s not unprecedented to do so once it’s in the appellate system

      1. No federal court has the power to “reach down and grab” any case absent a party seeking review. The case-or-controversy requirement of Article III specifically limits the Judicial Branch to arbitrate real injuries that are “concrete, particularized and actual or imminent; fairly traceable to the challenged action and redressable by a favorable ruling.”

        The case-or-controversy requirement is a fundamental bedrock principle of common law. Its incorporation into the U.S. Constitution also represents an important aspect of the separation-of-powers doctrine: “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.”

        Finally, the reason why the Supreme Court might prefer to hear the Peruta case is purely political. A ruling by the Court that finds so-called “may issue” weapon carry regimes to be unconstitutional is sure to be highly controversial. So, as with the 2008 District of Columbia v. Heller case, the Court might prefer to affirm the ruling of a circuit court on an appeal by a sovereign entity.

        In general, the Court is far more likely to grant a wirt of certiorari when the appellant is the Solicitor General or a state attorney general.

        There are also some other issues which might make Pertua more appealing for the Court than Drake. But the fact that Drake has not been denied probably should be seen as indicative of a Court positively inclined towards a robust interpretation of a right to carry.

        1. OK – it’s been a while, but I swear I heard of a couple of case where SCOTUS can issue a writ to a lower (federal appellate) court removing the case to SCOTUS, though it rarely happened. I’m not any kind of a lawyer, and I’m going on what is a memory of a history or civics class 15-20 years old.

          1. Supreme Court Rule 11 allows review of petitions before an appeals court has entered a final judgment. But the action must still be initiated by one of the parties – not independently by the Court.

            The Supreme Court also has original jurisdiction in certain cases, primarily those involving disputes between the states. But again, the action must be originated by one of the litigants.

            It would pretty much destroy the concept of appellate review and adversarial proceedings if the Supreme Court could arbitrarily “reach down and grab” any case that it found interesting.

            1. On further mental review, I think I may be (mis)remembering the details of the Gideon case. Wikipedia is being singularly unhelpful and I lost my copy of Gideon’s Trumpet years ago.

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