Separate conference for injunction scheduled a week AFTER conference on certiorari petition
Apparently, according to the docket for Philip Berg’s case at the U.S. Supreme Court, the application for an injunction pending disposition of the petition for certiorari has been “referred to the Court” by Justice Antonin Scalia, with a conference scheduled for Friday, January 16, 2009.
“I’m certainly encouraged,” Berg told America’s Right. “I’m encouraged because it is still there.”
If the application for injunction truly is to be considered in conference by all nine Supreme Court Justices, it took a roundabout way to get there. It was filed and denied by Justice David Souter and refiled and once again denied by Justice Anthony Kennedy before making its way to Scalia’s lap.
Because the injunction asked either (1) for a stay of the electoral college vote on December 15, 2008 or (2) for a stay of the counting of the votes on January 8, 2009 and has not been scheduled for consideration until after the latter, however, I’m trying to wrap my head around exactly what this means. After all, with the conference itself is scheduled for eight days after the vote, wouldn’t the injunction application be considered moot, essentially outliving any practical application of adjudication? It certainly would if his petition for certiorari doesn’t receive the nod from four Justices a week earlier–therefore going the way of the applications for stay filed by Leo Donofrio and Cort Wrotnowski, both denied earlier in December–but aside from the petition for certiorari, the timing of the injunction itself seems like a poster child for the concept of mootness.
One of the exceptions made by the court when it comes to mootness is allowing for a moot proceeding to continue if doing so can help to avoid similar proceedings in the future. I was thinking, for a while, that the Donofrio-style applications for stay were being bounced around from Justice to Justice before finally being considered in conference in order to steadily rule out further applications by means of a process of elimination. Perhaps, by allowing Berg’s application to bounce around and finally be considered despite obvious mootness, the court is doing the same. I believe the legal phrase encompassing that process, coined in a case from the early 20th century, is “capable of repetition, yet evading review.” This fits the questions put forth by Berg’s case, and by others. Hopefully this is not the case, and the Court has just been waiting for the right time to address the issue, rather than definitively show that they’d rather not address it at all.
In the meantime, the underlying petition for certiorari is scheduled for conference on Friday, January 9, 2009, and Berg seems to think that the selection of the date for conference could have something to do with the electoral votes being counted the day before.
“Until January 8, Obama is really nothing. He’s president-elect in name only, technically, until those votes are counted,” Berg said. “Seeing that we got to the Supreme Court before the other cases and are only now going to see conference weeks after they did, perhaps the timing is significant. I don’t know.”
Keep checking back here for more as things develop. Berg mentioned that there were other things in the works, but it was unclear whether he was talking about his case, or something else. I’ll do my best to answer those questions in the near future as well.
For a time-line of all materials related to Berg v. Obama, including the original story broken here at America’s Right, click HERE.