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.