The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I blogged about why the Ninth Circuit's takings decision in Horne v. Department of Agriculture troubled me. I forgot to mention that the petitioner's reply brief closes with a somewhat unusual suggestion – that the Court might summarily reverse without further briefing or argument:
The government's "title" argument is in direct conflict with the government's own words at other junctures of this very case, irrelevant to the law, and false in any event. The government's remaining defenses of the panel opinion bear little examination, and its vehicle objections are mere mirages. Since the first panel opinion in this case, the government has shifted arguments three times, from jurisdiction to standing and now to title, all in an attempt to evade the simple conclusion that when the government takes property, sells it, and uses the proceeds for its own purposes, it is required under the Fifth Amendment to pay just compensation.
Enough is enough. This Court should grant certiorari and reverse. Alternatively, in view of the government's inability to plausibly defend the decision below, the Court might consider summary reversal.
I wasn't planning to get into that part of the petition since it goes deeper into the weeds than most readers of this blog probably have the tolerance for. But since I have this article this week about the Court's summary reversal practice, it suddenly occurred to me to ask whether I can make any predictions about this request based on the kinds of cases the Court has summarily reversed in the last decade or so.
One great predictor of whether a case is a serious candidate for summary reversal is whether it is a state-on-top habeas case, especially but not necessarily one arising under AEDPA. That's not true of Horne, which is a takings case – not a typical summary reversal category.
But Horne does have three other qualities that I observed in summary reversal cases – first, it is a Ninth Circuit decision; second, it is a Ninth Circuit decision where Judge Reinhardt was on the panel; third, it is a case that has already been to the Court on the merits before, and therefore the Court is already familiar with and somewhat invested in it.
Does that mean it will be summarily reversed? I can't really tell, and it would be foolhardy to claim that I could predict. But the request, and those three factors, seemed like they were at least worth noting.
Again, here's the file.
[UPDATE: I posted it there, but I should post it here too: In the spirit of full disclosure I should note that Michael McConnell represents the raisin farmers, and he was once my boss, and remains a friend.]