Some quick observations about Denedo

I'll be thinking about Denedo's implications over the next few days. If I have any thoughts that cross the semi-profound or mildly interesting threshold, I'll post them. But for now, here are some quick observations.

The Supremes granted cert on two cases on Tuesday -- Denedo and Nken v. Mukasey, 08-681. Interestingly, both arise from deportation issues. In Denedo, the SG represents the petitioner while in Nken, the SG represents the respondent. As reported SCOTUSblog (a.k.a., the Greatest Blog on Earth), the Court ordered expedited briefing in Nken and scheduled it for oral argument on 21 January. The Court didn't do so with Denedo, but this still suggests that Denedo will be argued promtply. So let's look at the briefing schedule.

Under SCOTUS Rule 25.1, the SG has 45 days to file his opening brief. That means his deadline is Friday, 9 January 2009. Rule 25.2 then gives Denedo's counsel 30 days to file their brief. 30 days from 9 January 2009 would be Sunday, 8 February. So if the SG files on his due date, the respondent's brief would be due on Monday, 9 February. Rule 25.3 then gives the SG a right to file a reply brief within 30 days or one week before the date of oral argument, whichever comes first. If everyone files on their due dates, that would result in an 11 March 2009 reply brief deadline, though I'll be surprised if SCOTUS doesn't truncate the reply brief period by scheduling oral argument sooner than 37 days from the filing of Denedo's brief.

Right now SCOTUS arguments are scheduled through 21 January. The Court will hear arguments on six days within the 30-day post-Denedo respondent-filing date of 9 February 2009: 23, 24, 25 February and 2, 3, 4 March. The Court doesn't have to hear oral argument on one of those days. It is also schedule to hear arguments on 23, 24, 25, 30, and 31 March, and 1, 20, 21, 22, 27, 28, and 29 April. Of course, as soon as we hear the argument has been scheduled, we'll let you know.

Here are a few other observations to put the Denedo grant into a larger context. The last time the Supreme Court granted cert to provide plenary review of a CAAF decision (as opposed to GVRing) was on 2 November 1998. Clinton v. Goldsmith, 525 U.S. 961 (1998). The last three cert grants to provide plenary review of CAAF decisions (as opposed to GVRing) all came on the SG's petitions. Denedo; Clinton v. Goldsmith; United States v. Scheffer, 520 U.S. 1227 (1997). I believe those are the only three cert petitions the SG has ever filed seeking review of a CAAF decision. (That in and of itself is pretty interesting considering that DOD pushed for the Military Justice Act of 1983 in large part to provide the SG a way of seeking review of CMA decisions. But by historical accident, the creation of that power came shortly after the wane of the Fletcher Court and the rise of far more respected Everett Court.) The last time the Supremes granted a servicemember's petition to provide plenary review of a CAAF decision (as opposed to GVRing) was on 8 November 1996. Edmond v. United States, 519 U.S. 977 (1996).

How surprising was it that the Supremes granted cert? Not very. While I erroneously predicted a denial due to jurisdictional and ripeness problems, I also noted that it's never wise to bet against the SG. Here's why. The indispensable Supreme Court Practice treatise tells us that SCOTUS "granted plenary review on 50 percent -- and summarily granted certiorari, vacated, and remanded on another 20 percent -- of the certiorari petitions filed by the Solicitor General between 1998 and 2005, in contrast to the 3 to 4 percent rate at which the Court grants paid petitions filed by other parties." Gressman, et al., Supreme Court Practice 237 (9th ed. 2007).