Freshwater: The waiting continues

Help me out here. Does being "placed on the docket" mean that it was accepted for review? Clearly, being "on the docket" suggests that it wasn't dismissed out right.

Scott F said: Help me out here. Does being "placed on the docket" mean that it was accepted for review? Clearly, being "on the docket" suggests that it wasn't dismissed out right.

IANAL, but it seems that by putting Freshwater on the docket for a "conference", it shows the justices are not immediately dismissing the case, and thereby not upholding the lower courts' rulings. By taking no action, or by saying "no" outright, (which they could have done already), the justices could have disposed of this case. Instead, the case is on the docket for "conference", and is, IMO, a sign that at least some (4 or more) of the justices are significantly interested in the case. My feeling is that, given the current membership of the court and that the court is going actually discuss whether or not to accept this case, it's very possible for a 5-4 decision in favor of Freshwater, both to hear the case and for a final decision. I sincerely hope I am wrong here...

I have tried to find the Mt. Vernon BOE merit brief on-line, but have not had any success. Anyone know where it can be found?

Also, thanks to Richard for your continued monitoring of this nightmarish saga!

Scott F said: Help me out here. Does being "placed on the docket" mean that it was accepted for review? Clearly, being "on the docket" suggests that it wasn't dismissed out right.

Every petition that is docketed at the U.S. Supreme Court, and remains on the docket, will eventually be distributed for a conference, usually held on a Friday. The date of the conference depends upon whether or not the Court is in session, in recess or on vacation. (There were 39 conferences during the 2011 Term.) Does this mean the Court will discuss each petition distributed during their conference? Absolutely not! Although this is a very closely guarded secret, I would estimate that, at best, only 20-25% of the petitions distributed for a given conference are actually discussed during that conference and few, if any, of those discussed, are granted. Those which aren’t discussed, become automatically denied.

However, in 1972, the Court instituted a pooling system whereby each justice, who participates in the pool, is only responsible for his or her proportionate number of petitions distributed. Currently, eight justices participate in the pool, so his or her chambers are only responsible for 1/8th of the petitions and the 9th justice (currently Justice Alito) is responsible for reviewing all petitions distributed. For those justices participating in the pool, the petitions are read by one of the four law clerks typically found in each of the justices’ chambers. Each of them writes a memo as to each petition he or she read that summarizes the petition with a recommendation as to whether or not the petition is cert-worthy. These pool memos are then distributed to the participating justices. Prior to the conference, the Chief Justice circulates a “discuss list” containing any petitions he deems worthy of further discussion. Each justice can add to the list any petition he or she deems worthy. Very few, if any, petitions on the discuss list are granted. The remaining petitions, as I have stated, are automatically denied.

If the SCOTUS fails, Freshwater can go to his right-wing congressional supporters and/or the fanatical religious right groups who say America is for christians only and Freshwater is their martyr.

DavidK said: If the SCOTUS fails, Freshwater can go to his right-wing congressional supporters and/or the fanatical religious right groups who say America is for christians only and Freshwater is their martyr.

JimboK said: I have tried to find the Mt. Vernon BOE merit brief on-line, but have not had any success. Anyone know where it can be found? Also, thanks to Richard for your continued monitoring of this nightmarish saga!

Hmm. I wonder if it's an attempt by the conservatives on the court to at least appear to be on F's side. They can then blame the left for shooting it down.

fnxtr said: Hmm. I wonder if it's an attempt by the conservatives on the court to at least appear to be on F's side. They can then blame the left for shooting it down.

As usual, it's a little more complicated than it's easy to discern.

(1) Everything filed with a US court is "on the docket." The docket is merely an index of filings. It has no legal meaning; it is purely an administrative device. As a corresponding example, just because a book has been assigned a Library of Congress Catalog Number does not mean that the book is in the circulating collection (or, indeed, is even held in the Library's off-site collection).

(2) Being listed for the 29 September conference (the so-called "Long Conference") is statistically bad for chances of being granted review of a state-court opinion. Over the last couple of decades, the already-abysmal chances of the Supreme Court taking up a state-court opinion are distinctly, and statistically significantly, worse from the Long Conference than at other times of the year, dropping from about 0.7% to under 0.3%. Admittedly, this is distorted by the high proportion of criminal matters among the appeals-from-state-courts portion of the docket, but it's still a data point.

(3) The most-probable result of the Freshwater petition is that there will be no decision on it at the Long Conference — not because there is (or is not) considered to be much on the merits, but because there are at least three other Establishment Clause matters to be considered at that Conference, and if any of them is considered a close call the Court will probably hold all of them for a later conference. This is absolutely, positively routine, and one of the big frustrations of Supreme Court practice: It's very difficult to plan one's professional life when one can't know whether the clock for briefing will start the following Monday... or even on what issues, because —

(4) The Court will not necessarily grant certiorari (if, of course, it grants it at all) on the issues as framed by Freshwater. Indeed, if there is a grant at all, I expect that it will be together with one of the other Establishment Clause cases currently under consideration, and that the Court will restate the question(s) for review. It either limits or changes the question(s) about 5% of the time in general... but about 15% of the time in non-criminal Bill of Rights matters (both of those concern cases actually heard).

(5) There's a heavy, heavy procedural barrier to reviewing this matter: It's a state-court opinion concerning treatment of an employee of an arm of the state. Then there's the whole McDonnell-Douglas burden-shifting inquiry. I'm going far afield here to make a point: The Court is even more unlikely than usual to grant review under these circumstances absent proof in the record (which just isn't there for Freshwater) of purposeful, inimical ulterior motives. Even the Court — insulated as it is from real life, or even public-school classrooms — is smart enough to understand that injuring a student in the classroom as part of a demonstration is reason enough to fire the teacher... and, therefore, that a decision it makes on the Establishment Clause issues will still have little effect on Freshwater's employment.

Even the Court — insulated as it is from real life, or even public-school classrooms — is smart enough to understand that injuring a student in the classroom as part of a demonstration is reason enough to fire the teacher

harold said: This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff's attorney later.

Just Bob said:

harold said: This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff's attorney later.

IANAL, harold, but it would seem to me that the district NOT firing a teacher who was 'electrocuting students', even after becoming aware of that fact, would open them up even worse to a lawsuit. But then, IANAL.

Just Bob said:

harold said: This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff's attorney later.

IANAL, harold, but it would seem to me that the district NOT firing a teacher who was 'electrocuting students', even after becoming aware of that fact, would open them up even worse to a lawsuit. But then, IANAL.

I should have made something clearer.

The Tesla coil incident is in the record (both administratively and in the court actions). The Supreme Court can — and, indeed, is compelled — to affirm the result below (the firing) on any ground found in the record. That the school district could (and, as others have noted, should) have fired Freshwater for causing injury to a student, and that everything relating to that injury is in the record, is a proper defense of the decision below... because it means that Freshwater cannot actually get relief from the firing in the courts.

I suspect that the injury was not used as cause for firing because of some combination of (a) misinterpretation of the collective bargaining agreement with the teachers' union and (b) fear that would open the school up to liability for failure to supervise (which may have been on the part of the school district's insurer, not the district itself; insurers have a distressing tendency to insert themselves in situations like this and keep people from doing the right thing).

Thus, even if Freshwater "wins" his entire misbegotten First Amendment claim, he still loses: The record supports firing him for other reasons. That, by itself, means I don't think he gets a grant of certiorari; the Court doesn't like wasting its time on these kinds of things when even if it rules for the petitioner, the petitioner gets no relief.

ceplaw said: I should have made something clearer. The Tesla coil incident is in the record (both administratively and in the court actions). The Supreme Court can — and, indeed, is compelled — to affirm the result below (the firing) on any ground found in the record. That the school district could (and, as others have noted, should) have fired Freshwater for causing injury to a student, and that everything relating to that injury is in the record, is a proper defense of the decision below... because it means that Freshwater cannot actually get relief from the firing in the courts. I suspect that the injury was not used as cause for firing because of some combination of (a) misinterpretation of the collective bargaining agreement with the teachers' union and (b) fear that would open the school up to liability for failure to supervise (which may have been on the part of the school district's insurer, not the district itself; insurers have a distressing tendency to insert themselves in situations like this and keep people from doing the right thing). Thus, even if Freshwater "wins" his entire misbegotten First Amendment claim, he still loses: The record supports firing him for other reasons. That, by itself, means I don't think he gets a grant of certiorari; the Court doesn't like wasting its time on these kinds of things when even if it rules for the petitioner, the petitioner gets no relief.

ceplaw said: I should have made something clearer. The Tesla coil incident is in the record (both administratively and in the court actions). The Supreme Court can — and, indeed, is compelled — to affirm the result below (the firing) on any ground found in the record. That the school district could (and, as others have noted, should) have fired Freshwater for causing injury to a student, and that everything relating to that injury is in the record, is a proper defense of the decision below... because it means that Freshwater cannot actually get relief from the firing in the courts. I suspect that the injury was not used as cause for firing because of some combination of (a) misinterpretation of the collective bargaining agreement with the teachers' union and (b) fear that would open the school up to liability for failure to supervise (which may have been on the part of the school district's insurer, not the district itself; insurers have a distressing tendency to insert themselves in situations like this and keep people from doing the right thing). Thus, even if Freshwater "wins" his entire misbegotten First Amendment claim, he still loses: The record supports firing him for other reasons. That, by itself, means I don't think he gets a grant of certiorari; the Court doesn't like wasting its time on these kinds of things when even if it rules for the petitioner, the petitioner gets no relief.

harold asked: Could a hypothetical ideology driven court find in favor of his "first amendment" claim, while still allowing his overall firing? Thus allowing future teachers who "only" preach sectarian science denial instead of the appropriate curriculum, at taxpayer expense, ostensible legal coverage?

TomS asked: Can someone else enter the case as an amicus curiae and bring attention to facts which are being ignored by the parties to the case?

ceplaw said:Indeed, one of the most annoying parts of Supreme Court practice is preparing not the briefs, but the mandatory appendix containing certain parts of the record in a format used nowhere else in the law. In the old days, that frequently required retyping transcripts and so on;...