Happy new year, readers! As you can see, I am well on the way to migrating Letters Blogatory back to its original home at lettersblogatory.com. The work on this isn’t done yet. In particular, many links will need to be changed so that they point to the new site instead of the old site. At some point I may also need to ask you to clear your browser caches in order to avoid technical problems with the change. Anyway, since Letters Blogatory is now once again a personal blog and not part of my business website, I have reverted to simple self-design and will be making some other simplifying (and cost-saving) changes on the back-end. If you notice any problems, please let me know. And if you want to see what the blog looked like ten years ago, have a look here. My goal is to return the site to something similar to how blogs used to look (with some modern twists, of course). The rollicking and somewhat less corporate internet of ten to fifteen years ago is having a comeback, with the decline of Twitter and the rise of decentralized social networks like Mastodon (follow me here!), so I hope this change will be welcome.
Anyway, Steven Donziger’s excellent lawyer, Stephen Vladeck, has now filed his reply in support of his cert. petition, which challenges his conviction of contempt of court on the grounds that his prosecution by a special prosecutor appointed by the district court as required by Rule 42 of the Federal Rules of Criminal Procedure was unconstitutional under the Appointments Clause. The brief is good and points to the somewhat ad hoc reasoning of the lower courts, which sought to square Rule 42, which the Supreme Court has already held is constitutional, with Appointment Clause precedents from other contexts. As I have written before, I think this is a real and difficult issue, and I don’t really know which side has the better of the merits (although I tend to think that Rule 42 vindicates an important structural interest of the judiciary and may justify a one-off exception to the rules the Court has been developing in other contexts for other purposes).
On statistical grounds, I continue to think that a cert. grant is unlikely, and although the reply brief argues strongly against the government’s “vehicle problem” points, I do think the absence of a circuit split, the procedural and substantive weakness of Donziger’s efforts, such as they were, to raise the issue before trial, and the sheer awfulness of the overall case weigh against a grant. What do I mean by “sheer awfulness?” Far be it from me to question Donziger’s press and PR strategy, which in certain ways has been wildly successful. But in a world where everyone who rules against him or advocates against him is a corrupt tool of Big Oil who may face the wrath of Susan Sarandon, Trudie Styler, Roger Waters, and their fans, I think that any judge who knows about the case and who has a choice about whether to involve himself or herself in it may be motivated to take a pass. Probably the justices aren’t really aware of #freedonziger, but any justice who is, and who is tempted to vote to grant the petition, may have second thoughts.
The petition is scheduled to be discussed at the justices’ conference on January 13. So most likely, we will know this month whether the Court will or will not hear the case.