“A Real Snor’easter”: The Best Supreme Court Review You’re Probably Not Reading

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I don't know what John Elwood did to the people at SCOTUSblog to get himself sentenced to the task of reviewing the list of cases that the Supreme Court has either relisted or held, meaning it has not yet made a decision whether to grant review in those cases. His column, "Relist (and hold) watch," would ordinarily be about as interesting as its title, at least to people who aren't Supreme Court specialists. But this one is written by John Elwood:

As the rest of Washington’s elite huddled at home yesterday in front of cable news and Three’s Company reruns, the Justices took the bench as usual, issuing orders and pointed oral argument hypotheticals over the howling gales. Proving again that neither snow nor rain nor Frankenstorm will stay your correspondent from his (self-appointed) rounds, here is this week’s edition, now with gale-force bloviation. Brace yourself, readers: Today’s installment is a real snor’easter.

As you can see, John has a talent that has not been dampened by Sandy, and it also refuses to be completely buried even under the weight of unfortunately necessary sentences like this one:

The petition argues that the lower court’s decision conflicts with the “curtilage” rule from United States v. Dunn (1987) and implicates a circuit split with the Ninth Circuit about whether an absent co-tenant’s prior refusal to consent to a search invalidates the consent given by a physically present co-tenant under Georgia v. Randolph.

Did you make it past "curtilage"? If so, that alone probably qualifies you to pass the bar in California, but few could rise to that challenge. You should try, though, because there are gems in (almost) every paragraph.

John is a partner at Vinson & Elkins in D.C. who clerked for Justice Kennedy, and here's a revelation that will not surprise you: he specializes in appellate litigation. He also contributes to The Green Bag law journal, having written several pieces called "What Were They Thinking: the Supreme Court in Revue." Again, these should be dull but are laugh-out-loud funny: "Because of a small glitch in the administration of the oath of office," he wrote in 2008, "the Chief Justice inadvertently swore in Barack Hussein Obama as a third-class Webelo in lower Montgomery County's Den 307." And so on.

I met John (via email) back in 1999/2000 at a time when we were both contributing to the Green Bag; he then had to recuse himself for a while because he went to work for the Justice Department, serving in the Office of Legal Counsel from 2005 to 2009. (As you may recall, the OLC has written some real howlers over the years, but I know John wasn't responsible for those because they really weren't funny at all.) His absence enabled me to horn in on his "year in law" beat to some extent (e.g., this), so maybe I'm writing this partly for that reason. But mainly it's because of stuff like this:

We are done, and none too soon—my whale-oil lamp is guttering. If the kraken that appears to have swum up my street doesn’t do me in, we’ll be back next week for an update that is every bit as scintillating as this one.

See, in the legal profession, you often have to put up with "curtilage," but sometimes you get rewarded with "kraken." (So to speak.) It doesn't happen that often but it's worth noting when it does.