This has taken the identical path as all the other suits:
a) Submitted and denied by Justice X
b) Resubmitted to Justice Y
c) Distributed (to full Court) by Justice Y for conference on Date Z.
If this is handled like all the others, on Date Z (January 23, in this case) the Court will refuse to approve a full hearing (without comment) and the case will be dead.
My understanding is that if Justice Y were to simply deny the case, there is nothing to stop it being resubmitted to each and every justice, i.e., 7 more times, before it finally died. Thus, scheduling for conference is a more expeditious way to dispose of the case, both time-wise and in terms of SC’s time and staff resources. I think what’s unusual about these BC cases is that most petitioners quit after step a).
In short, while it’s POSSIBLE that the conference scheduled on January 23 is a hopeful sign, the odds are against it. In contrast, were a conference scheduled by the FIRST justice to consider the petition, that would be a more hopeful sign. Even though the Justices differ with one another, they know each other well enough not to play games. That is, there’s no point in putting forward a case in which it’s obvious there would be a 9-0 vote against the party bringing the case (absurd example, but presumably non-controversial: suppose someone thought to restore Plessy v. Ferguson by invalidating Brown v. Board of Education—i.e., re-allow “separate but equal” schools? I don’t think even Thomas or Scalia would think that meritorious. So while they might possibly think that constraining the power of government to achieve integration is in order, a complete junking of Brown v. Board wouldn’t be the recommended path to get there).
Likewise, on a closely divided matter, I don’t think an individual justice is going to deny having the Court at least consider hearing the case in hopes of protecting his/her own possibly minority view on the issue at hand. Because they would know that eventually, the 5 justices who thought such a case had merit would inevitably find out about such duplicitous behavior and this could severely impair collegiality. I don’t want to argue the Court is completely without rancor, but unlike Senate or House, collegiality still is a far more predominant norm in SC than elsewhere in government.
Berg’s conference this Friday will set the tone for things to come.
Excellent, somewhat rare anymore, analysis that shines light on areas I hadn’t seen. Thank you.