Lurking:”Every case is “listed” for a conference— it couldn’t be denied otherwise.”
Do you understand what “conference” means?? Obviously not all cases presented to the Judges go to conference. Conference is when all (or most of) the judges meet and discuss the eligibility of the case. To get to conference, one of the judges must accept the case to conference.
That’s not exactly the way the Supreme Court works. The justices’ law clerks review all Petitions for Writ of Certiorari (requests to hear cases before the Court). The law clerks write briefs for the Justices on the pertinent issues involved in each case. In conference all the cases seeking Writs of Certiorari are presented and the “rule of four” prevails. The petitions are divided up between the Justices and it takes four justices to grant certiorari or agree to actually hear a case.
Berg v Obama has been in conference twice already and was denied. First it was presented by Souter and then by Kennedy. The justice presenting the case can often have little bearing on whether it will be accepted or not. The presenting justice is usually not an advocate for the case one way or the other. They just equally divide up the labor. It is called “the cert pool” which is dividing up the cases for presentation. Justices Alito and Stevens have opted out of participating in the “cert pool.” So in fact the labor of presenting cases falls on 7 Justices and their law clerks.
The Chief Justice prepares a list of cases that he thinks should have full discussion before each conference. Any other justice may also add cases to the list for discussion. Any case not accepted for discussion in conference is automatically denied without comment even though it appears on the “scheduled for conference” list. That Berg v Obama is listed for conference does not mean that it is on the list for full discussion. It has been denied without comment twice before.
A procedural problem for Berg v Obama is that Berg did not submit the case to the US Court of Appeals after he lost at the US District Court level. The Supreme Court usually likes to get the majority of its cases from the U.S. Court of Appeals. They might not hear it on procedural grounds alone, but not necessarily.
Berg v Obama has been in conference twice already and was denied. First it was presented by Souter and then by Kennedy. The justice presenting the case can often have little bearing on whether it will be accepted or not. His applications for stay of election have been denied, but not his writ of certiorari, which is scheduled for conference on the 9th of January.