Appellate Advocacy Blog Weekly Roundup Friday, February 17, 2023

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• Adam Feldman at Empirical SCOTUS posted an historical look at the timing of Supreme Court decisions. The post compares the pacing of this year’s releases to past pacing.
  
  
• On Friday, March 17, the Supreme Court will honor the memory of Justice Ruth Bader Ginsberg. The Court will hold a meeting of the Supreme Court’s Bar, followed by a special sitting of the Court. The bar meeting will be held at 1:45 p.m. in the Upper Great Hall and will feature several notable speakers, including Honorable Elizabeth B. Prelogar, Solicitor General of the United States. The meeting will be live-streamed on the Court’s website: www.supremecourt.gov. See the Supreme Court press release.
  
  
• After the filing of the Solicitor General’s brief announcing that the end of the public health emergency will moot the case, the Supreme Court has cancelled oral argument in the challenge to the Biden administration’s attempts to end Title 42 (see previous coverage from this blog). Title 42 is the pandemic-era immigration measure that has allowed migrants, even those who might otherwise qualify for asylum, to be quickly expelled at the southern border. Last year, when Title 42 was challenged, the Federal District Court set a deadline for the end of the measure, finding that the measure did not advance public health but did endanger immigrants. When the Biden administration did not appeal that ruling, 19 states sought intervention to defend Title 42 and asked to stay the deadline. The Court of Appeals for DC denied the stay finding that the Petitioner States had not timely intervened. On appeal of that decision, the Supreme Court agreed to hear only the question of whether the Petitioner States had properly intervened and granted a stay to maintain the status quo. Oral argument was set for March. The Solicitor General’s brief states that the expected end to the public health emergency will moot the case: “ the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot [petitioners’ attempt to intervene].” Today, the Petitioner States filed a reply arguing that the end to the public health emergency does not moot the issue presented by the case: whether the petitioner states properly intervened. See reports from CBSNews, Politico, and CNBC.

Appellate Court Opinions and News

• The Third Circuit ruled that Johnson & Johnson was not in financial distress when it filed for bankruptcy, and the court rejected J&J’s attempt to move the close to 40,000 talc lawsuits against it to bankruptcy court. The ruling creates a new financial distress standard and seems to undercut the use of what’s known as the Texas two-step bankruptcy strategy. To avoid much of the financial liability it faces from the talc-cancer suits, J&J employed the Texas two-step: J&J created a subsidiary and transferred liability for the talc-related claims to the subsidiary; then the subsidiary filed for Chapter 11 bankruptcy, claiming insolvency. If permitted, the strategy could have allowed J&J to avoid much of the financial liability it faced from the mass tort talc cases. The court ruled that J&J’s agreement to fund the subsidiary’s liabilities made J&J the subsidiary’s ultimate financial safeguard and that was “not unlike an ATM disguised as a contract.” See a 2022 WBUR discussion of the Texas two-step strategy and see the decision and reports from The Wall Street Journal, Reuters, Bloomberg, and NBCNews.
  
  
• The Fifth Circuit found unconstitutional a decades-old law barring domestic abusers from possessing firearms and ruled that those convicted of domestic abuse have an unrestrainable right to bear arms. The decision stated that the statute contradicts an “historical tradition” allowing access to guns. The court determined that the statute gives too much power to Congress to determine who qualifies as “law-abiding, responsible citizens.” The opinion seems to compare domestic abuse to crimes like speeding, political non-conformity, and failing to recycle. The ruling earned a rebuke from US Attorney General Merrick Garland, who said: “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. … Accordingly, the department will seek further review of the Fifth Circuit’s contrary decision.” See the ruling and reports from Bloomberg, CNN, and The Hill.

Other News

• The Senate confirmed Cindy Chung for the Pennsylvania federal appeals court; she will be the first Asian American to sit on the Third Circuit. See reports from Reuters and Bloomberg.