February 21, 2014

Garnishing a Turd (Part III):
Will SCOTUS Grant Certiorari in DiCristina?

We could know as early as this afternoon, and certainly by early next week, whether the U.S. Supreme Court (SCOTUS) will grant certiorari ("cert") in the DiCristina poker case. After reviewing DiCristina's Petition and the Department of Justice's Brief in Opposition, the big question remains: What will SCOTUS do?

My prediction:  SCOTUS denies cert without comment.

Now, I may well be wrong. In fact, as a poker player, I actually hope I am wrong. But as a lawyer whose day job requires me to monitor appellate cases, I just think the deck is stacked against DiCristina, and a grant of cert is a serious longshot.

I.  Why SCOTUS Will NOT Take DiCristina

A.  Pure numbers:  As I have noted previously, SCOTUS only takes 80 or so cases per Term. Even after weeding out cases with little or no chance whatsoever, SCOTUS still only takes roughly 4% of cases. The 4% grant rate is still somewhat misleading. There are in every Term a certain number of high profile cases which SCOTUS will almost certainly take. That means the number of open slots is reduced for the remaining set of cases from which the Court will select its remaining docket. And the Court has four additional conferences this Term, as well as several conferences early next Term from which to select the cases to fill its docket for the 2014-2015 Term.

B.  Subject matter:  Take a look at just a few of the notable cases to be considered today in the judicial conference. DiCristina will be competing against cases raising issues involving the Confrontation Clause of the Constitution, police use of force, Fourth Amendment search and seizure, ERISA plan litigation, anti-trust law, the Federal Rules of Evidence, immigration law, securities law, Second Amendment gun rights issues, class action litigation issues, administrative agency law, and death penalty appeals. Cases in which SCOTUS recently granted cert raise issues related to copyright and patent law, international law, environmental law, First Amendment law in the context of elections, and federal tax law. These topics are the bread and butter of SCOTUS' docket.

Certainly interpretation of a federal criminal statute such as the issue raised in DiCristina would fit within SCOTUS' normal range of cases. But to get the Court's attention, such a case generally has to present a pressing concern that requires the Court's intervention. After all, a grant of cert to DiCristina makes it less likely the SCOTUS will take other potentially important cases. So, SCOTUS usually selects cases where there is a split in how the lower federal courts are interpreting the relevant statute, which is a sign that SCOTUS needs to resolve the split in interpretation. Or the case needs to present a pressing federal concern that requires immediate resolution by SCOTUS. Neither of these factors are present in DiCristina.

To be blunt, the Illegal Gambling Business Act (IGBA) has been around a long time. It has been previously applied to poker operations. The arguments raised in DiCristina are novel, but the Second Circuit's decision does not break with any established interpretation of the IGBA. There simply do not appear to be many IGBA cases in general being litigated, and few of them concern poker. Even if SCOTUS thinks the Second Circuit was wrong, or was right for the wrong reasons, nothing about the case really requires the Court to take the case and resolve the issue immediately, as opposed to waiting for further challenges to percolate their way through the system to see if other appellate courts agree or disagree with the Second Circuit.

C.  Procedural issues:  As noted in my prior discussion of the parties' SCOTUS filings, there are potential procedural issues related to whether DiCristina preserved error on his main issue—whether the Second Circuit erred in failing to follow the Nardello line of cases. DiCristina did not cite to or argue this line of cases in the District Court or before the Second Circuit. DiCristina argues the DOJ waived the issue, though the Second Circuit disagreed with that contention. SCOTUS is less likely to take a case where the underlying appellate court decision did not even analyze the main issue raised in the Petition for Certiorari. Further, SCOTUS does not like to take cases with significant procedural issues, because those issues may prevent the Court from reaching the merits of the case. Although SCOTUS could look past these procedural issues, the case is certainly far from "clean".

D.  The facts are not compelling:  Although many Americans play and enjoy poker, poker simply lacks a certain gravitas that is typically associated with SCOTUS cases. Also, DiCristina is not about small stakes home games, it's about a for-profit poker room, complete with armed guards and video surveillance, taking in thousands of dollars, and admittedly operating illegally under state law. Although SCOTUS focuses on the legal issues rather than factual issues in making cert decisions, DiCristina does not present a compelling story of grave injustice to catch the Court's eyes.

II.  Why SCOTUS Might Take DiCristina

A.  Government overreach:  SCOTUS has shown an interest in recent years in reining in the scope of the federal government in a number of areas. Here, where the DOJ is arguing in favor of a broad interpretation of a federal criminal statute, and where a federal criminal statute is being used to prosecute a fairly small scale gambling operation, some of the Justices might want to consider the case.

B.  DiCristina's counsel:  DiCristina is represented by Neal Katyal, a former U.S. Solicitor General, and a federal appellate court judge nominee. Counsel for the supporting amicus curiae include other legal heavyweights, such as Paul Clement (another former U.S. Solicitor General), and Thomas Goldstein (founder of SCOTUSblog). Given this array of attorneys, the DiCristina Petition will certainly garner more attention among the Justices than a typical case. In law as in life, it pays to travel in the right company.

III.  Conclusion

We will know fairly soon whether SCOTUS will grant cert in DiCristina. Whether cert is granted or denied, however, what the Court's cert decision means is a topic for another post. Just a rule of thumb: Never believe the hype from either side to litigation. Oh, and manage your expectations.

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