Some Thoughts On the Belfast Project in the Supreme Court

Many readers have asked me what I think will happen in the Belfast Project case now that it is on the doorstep of the Supreme Court. The short answer is: “I don’t know.” I and others can make educated or not-so-educated guesses, but in the end, anyone who says he knows what will happen doesn’t know what he’s talking about.

Certainly the chances that the Supreme Court will agree to hear the case seem higher now than they did before Justice Breyer stayed the First Circuit’s mandate, because we now know that at least one justice thinks the case is at least arguably cert-worthy. But overall, the likelihood that the court will take a given case is quite low, and based on my anecdotal impression, it is not unusual for the court to stay a case and then deny the petition for a writ of certiorari. That’s a long way of saying the court may or may not take the case.

What if the court does take the case? Then the uncertainty only increases. Until now I have been fairly confident in predicting legal results. But as the court of last resort, the Supreme Court is not bound by precedent in the same way lower courts are (though the justices like to say that the rule of stare decisis applies to them as to any court). So I wouldn’t venture a guess as to the outcome without at least first seeing the merits briefs. I do think that even in the Supreme Court I can say with confidence that Moloney & McIntyre’s MLAT claim will fail based on the plain language of the treaty, but the First Amendment claim is less clear, I think.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Some Thoughts On the Belfast Project in the Supreme Court

  1. If we were talking about the Supreme Court of 50 years, I’d say “there are strong First Amendment policy reasons in favor of quashing the subpoena,” and I’d be optimistic that either the files would be protected (which I favor for reasons of historical importance) or future projects would have clear guidance.

    Today, the SCOTUS record is so dismal that all I have is snark. As I’ve written before (with a bunch of links that won’t carry through here), “Don’t believe all that hooey about the Roberts Court being principled because they are protective of First Amendment rights. They’re not, not unless a corporation is the one “speaking” and the ‘speech’ is for profit, or unless the speech poses no threat to corporate interests, like dog-crushing videos or homophobic protests of soldiers’ funerals. Peacefully protest Wall Street and you’ll be pepper-sprayed in the face, with free speech rights that are ambiguous at best and rights against police violence almost impossible to enforce.”

    I have no confidence they’ll offer anything but nonsense in this case, and I presume that the five conservatives will dodge the larger and thornier questions — the ones they have a constitutional duty to address — by inventing some reason the “plain meaning” shows they can’t quash the subpoena.

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