Monday, December 04, 2006

SG waives response in New

The SG waived the government's right to respond to the cert petition in United States, ex rel. New v. Rumsfeld, No. 06-691, the petition that, among other things, challenges the scope of review for collateral challenges to court-martial convictions. See generally "New cert petition (pun intended)," 28 Nov 2006, available at

As previously noted, NIMJ weighed in with an amicus brief supporting the cert petition, which is available here:

The docket on the Supreme Court's web site doesn't yet indicate when New is scheduled for conference. See I'll be surprised if the Court doesn't request a response from the SG before the case goes to conference.

--Dwight Sullivan


Anonymous said...

Is the SG's "action" a signal to the Court that it's not considered a cert-worthy issue, and therefore the case is unlikely to gain enough votes for a grant?

gene fidell said...

Waiver is certainly a signal, but whether it has the effect Phil suggests is a tougher question. It's by no means unheard of for the Court to ask the SG file submit his views in cases in which the government has waived response. I believe all it takes is one Justice to cause this to happen. I don't recall seeing any data on how often the Court grants cert after an initial waiver by the SG.