Brian Downing
Assistant professor of law at @olemiss.bsky.social . Using this to rate SCOTUS oral args. Rating guide: briandowning.medium.com/notes-on-rating-sup… Former Google lawyer/eng.
- Trump v Cook Admin: Removal Sauer (SG A) Clarity (3), Mastery (4), Adaptivity (4), Interplay (4) Clement (R) Clarity (5), Mastery (5), Adaptivity (5), Interplay (5) 4 arguments for Clement in the last 2 months! youtu.be/flzz-UOQWxU?...
- Sauer - It’s his usual deal: bad facts, get what he can. He’s quite good in those situations, making him the perfect SG for Trump. It’s hard not to chuckle those as he tries to sell the severity of mislabeling a vacation house.
- Clement - m61 we get “Full Taft”; we got the Full Clement. His opening alone = win. m67 Alito your primary arg means we keep a KKK member or Hitler supporter? Clement: I have backup arg, but yes, they’d be impeached…Gorsuch what’s your backup…what‘s your backup to the backup?
- m108 heads I win, tails you lose answer to Justice Alito…this whole case is irregular, rule for me however you can…he’s just so at ease and entertaining throughout.
- M&K v Trustees of IAM ERISA: Calc Date Kenneally (P) - Clarity (3), Mastery (4), Adaptivity (3), Interplay (1) Roberts (R) - Clarity (4), Mastery (4), Adaptivity (2), Interplay (1) Barber (SG R) - Clarity (4), Mastery (4), Adaptivity (1), Interplay (1) www.youtube.com/watch?v=vYGJ...
- All of these advocates know ERISA really, really well. m30 Roberts: “John Roberts, no relation.” “None at all.”
- Wolford v Lopez 2nd Am: private property Beck (P) - Clarity (2), Mastery (1), Adaptivity (1), Interplay (1) Harris (SG P) - Clarity (4), Mastery (4), Adaptivity (4), Interplay (3) Katyal (R) - Clarity (4), Mastery (5), Adaptivity (4), Interplay (4) www.youtube.com/live/WWUNCfl...
- Beck - Every time a logical step was presented early in the argument, acted like it was the first time they’d ever heard that question. Got a little better, but some deer in the headlights here.
- m26 - Barrett do you agree with the government? which gov your honor? the U.S. one. I’m not asking you to throw away your whole case. m30 nice Bruen critique of history by Jackson - what history matters if black code laws don’t?
-
View full threadm80 excellent handling of Alito’s anger that 2nd amendment being treated as 2nd-class right. m82 “I wouldn’t go that far, but you certainly could, Justice Gorsuch.” “I appreciate your candor.” m85 Gorsuch “black codes like garlic to a vampire normally”
- Galette v NJ Transit Civ Pro: Sovereign Immunity Zuckerman (St SG P) - Clarity (2), Mastery (2), Adaptivity (2), Interplay (2) Kimberly (R) - Clarity (3), Mastery (3), Adaptivity (1), Interplay (1) youtu.be/qwtds-tTMvQ?...
- Note: consolidated case; the 2nd listed party is P by SCOTUS designation. Zuckerman - m2 Thomas comes out firing on lack of precedent to support Ps. m28 Kagan: “I’m a bit surprised you haven’t mentioned Biden v Nebraska, doesn’t that help you?” “We think that helps us a lot!
- Kimberly - m47 Alito does the “I want to watch you squirm” move on the “oh, that op isn’t originalist, who wrote it?” “Bork and Scalia”
- WV v BPJ Civil Rights: Title IX Williams (P) Clarity (4), Mastery (3), Adaptivity (3), Interplay (2) Mooppan (SG P) Clarity (2), Mastery (3), Adaptivity (2), Interplay (2) Block (R) Clarity (3), Mastery (4), Adaptivity (2), Interplay (2) www.youtube.com/watch?v=dUxn...
- Companion arg, with Mooppan on double duty. m38 Gorsuch: “you’re no PhD on this stuff” Title IX separate cases in lower crts bit SG a bit, when he hoped to spend time framing an opinion. Williams and Block seemed to go according to plan; Block smartly trying to narrow the loss.
- Little v Hecox 14th Am: Trans athletes Hurst (P) - Clarity (3), Mastery (3), Adaptivity (1), Interplay (1) Mooppan (SG P) - Clarity (4), Mastery (3), Adaptivity (3), Interplay (1) Hartnett (R) - Clarity (4), Mastery (3), Adaptivity (4), Interplay (2) www.youtube.com/watch?v=hxmT...
- Hurst - somewhat rougher in tone than Rice in Skrmetti. Seemed like that win created a “press the advantage” attitude. He’s probably right that a win is coming.
- Mooppan - dealt with the tiers of scrutiny issues to supplement Hurst; probably got a majority on his side to not make intermediate scrutiny act like strict.
-
View full threadm81 Gorsuch: “It wasn’t our finest hour” Hartnett “It’s not your fault.” “Thank you.”
- Chevron v Plaquemines Parish Civ Pro: Removal Clement (P) Clarity (5) Mastery (4) Adaptivity (5) Interplay (4) Roper (SG P) Clarity (3) Mastery (3) Adaptivity (3) Interplay (1) Aguiñaga (St SG R) Clarity (3) Mastery (3) Adaptivity (2) Interplay (2) www.youtube.com/watch?v=IC9U...
- Clement - this is 2 consecutive args in different cases in the same term. Holiday break, yes, but for a non-SG this might be a record. He also argued Cox 9 days prior to this sequence. So of the 9 args in Dec and Jan so far, Clement argued 3. Make this man a Justice already.
- Speaking of making Clement a Justice, listen at m16 writing the opinion with Barrett; m23 “I can’t improve on Daniel Webster,” m25 further drafting the opinion & line-editing the rule with Kavanaugh. These folks are using him as a short-cut for opinion drafting every time out.
-
View full threadAguiñaga - I’ve been meh on his Callais & Landor args but improved here in a tough spot against Clement/SG. That said, m51 Intro: “P dumped in our waters, which is why this is a big deal to LA” - how is that helpful in a removal case? That kind of dynamic is why removal exists.
- FS v Saba Civ Pro: Securities action Dvoretzsky (P) Clarity (2), Mastery (3), Adaptivity (1), Interplay (2) Schulman (SG P) Clarity (2), Mastery (2), Adaptivity (2), Interplay (1) Clement (R) Clarity (5), Mastery (5), Adaptivity (4), Interplay (5) www.youtube.com/watch?v=DPp8...
- Is there any worse feeling in SCOTUS oral args than being roughed-up all down the line, only to see the Respondent’s attorney with a little smile, waiting to jump in the ring? And that attorney is Paul Clement? I’d want to quit.
- Busy month for Clement; a down arg in Cox & then a masterpiece here. I’d say listen to the whole thing, but at least check out m58, jumping on Kavanugh’s constant skepticism that Ps position means securities actions in state court only: “There’s circus music playing over here.”
- Hamm v Smith Crim: 8th Am Overing (St SG P) - Clarity (2), Mastery (2), Adaptivity (1), Interplay (1) Graver (SG P) - Clarity (3), Mastery (3), Adaptivity (4), Interplay (3) Waxman (R) - Clarity (3), Mastery (4), Adaptivity (2), Interplay (2) www.youtube.com/watch?v=YAWc...
- Overing - a bit emotional with Sotomayor; needs to work to keep his cool. Hard qs in death cases to be expected. m3 lost a bit of credibility with Roberts right away by allowing holistic upwards IQ exams, but not downwards (which favor Ds). But nice crisp rebuttal arg at end.
- Graver - better job in patience and adaptability to work with the court to craft a favorable opinion for Ps.
-
View full threadAlso nice m105 moment where Sotomayor loses her notes, says “I don’t do this often,” and asks Gorsuch to repeat the question for her. “I’d be delighted!”
- NRSC v FEC 1Am: Campaign finance Francisco(P) Clarity5,Mastery4,Adaptivity4,Interplay4 Harris(SG) Clarity4,Mastery4,Adaptivity3,Interplay3 Martinez(Amicus) Clarity4,Mastery2,Adaptivity3,Interplay4 Elias(Int) Clarity4,Mastery5,Adaptivity5,Interplay4 www.youtube.com/watch?v=lRj2...
- All heavy-hitters for this one. Francisco & Harris are a potent tag team, making a mix of policy & speech args to keep the Court going on a speech-optimized approach to election regs. Some quieter key players (Roberts, Barrett) creates slight doubt about a P win, but not much.
- Martinez - Now documentary star! youtu.be/aRMlIHg0fWo?... SCOTUS-appointed amicus here, but a bit ill-suited to this particular job. Strengths were tell-it-like-it-is on the slippery slope, but weak on substance and expertise at points. Always a compelling orator though.
-
View full threadm114 Kagan finally takes a jab at a troubling theme throughout the arg - is it really SCOTUS’s job to tinker with the speech mix to prop up political parties? Why would Kavanaugh in particular, usually reticent about policy-making, be so into tinkering here?
- Trump v Slaughter Admin: Officer removal Sauer (SG P) - Clarity (4), Mastery (3), Adaptivity (3), Interplay (2) Agarwal (R) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (1) R: great job for losing cause. SG win for FTC-like agencies only? www.youtube.com/watch?v=dRZE...
- Oliver v City of Brandon Crim: post-conviction bar Ho (P) Clarity (3), Mastery (3), Adaptivity (1), Interplay (1) Robertson (SG) Clarity (2), Mastery (3), Adaptivity (2), Interplay (1) Butler (R) Clarity (3), Mastery (3), Adaptivity (2), Interplay (2) www.youtube.com/watch?v=kyPw...
- Ho - Tough to narrow Heck when the language is so broad, but good effort. m17 reference to Oldham always kinda interesting when your spouse is his colleague & competitor for the next SCOTUS seat.
- Robertson - Even harder for gov to try to support P without creating habeas vulnerabilities. m48 Alito: give me a simple summary of what the rule should be. [Robertson gives a long answer] Alito: that’s pretty complicated but thank you.
- Butler - Did a very nice job repping the MS bar. m77 Jackson throwing some shade at CASA.
- First Choice v Platkin Con Law: Ripeness Hawley (P) - Clarity (3), Mastery (2), Adaptivity (1), Interplay (1) Suri (SG P) - Clarity (3), Mastery (4), Adaptivity (2), Interplay (4) Iyer (R) - Clarity (2), Mastery (2), Adaptivity (1), Interplay (1) www.youtube.com/watch?v=Upzb...
- Suri, earlier: ultra vires is an option m34 Kavanaugh: ultra vires is impossible though. Suri: yes, exactly! m58 Iyer defending lack of jurisdiction despite near 100% chill Barrett: really? Gorsuch [interjection] Kagan: Could I just get an answer to my question?
