we'll hear argument first this morning in case fourteen nine ninety shapiro versus mcmanus mr kimberly mr chief justice in may please the court section twenty two eighty four a state's in plain terms that a district court of three judges shall be convened when an action is filed challenging the constitutionality of the portion and of congressional districts section twenty two eighty four b lays out the procedure for calling a three judge court when the circumstances identified twenty two eighty four are satisfied it reads quote upon the filing of a request for three judges the judge to whom the request is presented shall unless he determines the three judges are not required immediately notify the chief judge of the circuit who shall designate two other judges although that language did not appear in the statute until the one nine hundred seventy six amendments it was no more than a compression congressional recognition and codification of what was then by settled what was by then settled practice that a complaint covered by twenty two eighty four a would have initially to be referred to a single judge that the litigants then would have to file a request for a three judge district court and in turn that the single judge would have to determine whether three judges were in fact required now  time that congress enacted that longstanding practice in the one nine hundred seventy six minutes to the act this court's precedents had made clear that one basis upon which three judges are quote not required is when the claim is constitutionally insubstantial congress  presumed to have been aware of this court's precedents so holding and in the absence of a contrary indication in here there is none to have intended that interpretation of the words not required to be incorporated into the statute what if it's perfectly clear that  entitled to judgment let's say a state legislature goes back to it's pretty reynolds versus sims method of constituting the state legislature does that have to be referred to a three judge court if it is if the claim is obviously foreclosed by this court's precedents then no it doesn't the upshot of this court's in substantiality doctrine is that when a claim is so obviously closed it doesn't present a bonafide controversy within the meaning of article three and therefore isn't the kind of case that has to be referred to a three judge court how do you how do you square that with the statutory language well we think that's embodied in the words not required in in the two and three years before congress inserted the key language in section twenty two eighty four b this court had said in guus be that that a three judge district court is quote not required when the claim is insubstantial we was wrong you don't do if your argument in a case that might go before a three judge court is that the court's precedents should be overruled it's clearly foreclosed by the court's precedents but maybe there's a very good argument that those precedents or have academic commentary certain circuits of question whether the reasoning is still valid in a single judge court can dismiss in that case well i think according to the substantiality rule yes again if the court were inclined  to i'm surprised you think they did need to take that position no and i again i don't think we do and if the court were inclined to narrow the rules that it didn't apply in that circumstance again i think we'd still win i don't think this case necessarily presents that question and  you know i think all the court has to recognize for purposes of this case is that the in substantiality rule is not one and the same as the twelve b sixteen or i take it a goose b is not parallel to rule eleven rule eleven is the class formulation it can't just be that a judge ultimately concludes that the claim is frivolous it's got to be that there couldn't possibly be any debate about whether it is in fact foreclosed by this court and my right that goes be thought of that as part of the jurisdictional question that's correct in other words it's an application of the hood that's great which suggests that if something is so obviously frivolous then the court has no jurisdiction on it at all it's not a bonafide case incur controversy within the meaning of out of three that's exactly right but it's a very difficult line you're drawing in and understand though we hood but you're saying you can't do it he can't determine the three judge court is not required just because the plaintiffs are wrong but he can make that determination if they're really wrong hundred seventy six amendments but again if the court is dissatisfied with the rule and we're inclined to hold that it is not a basis for finding three judges not required we still i think it still would require a reversal of the fourth circuit's rule and of the district court's judgment in this case what you call it i guess my concern that you call it a rule but it's really not much of a rule it's just kind of a the sense that something is is really bad is i guess i said earlier as opposed is mad and i think that's an awfully fuzzy line to draw a fuzzy in when you're talking about jurisdiction where you like to have very precise and clear rules i agree entirely and i and i guess what i would say on top of that is if federal court should have some one district court single judge i should have some more authority or does that work the other way do you think i think it works the other way i would be surprised to see respondents make that argument because again we're dealing here with the statute with statutory language that says when a complaint is filed challenging the constitutionality of congressional districts that a three judge court shall be convened and then be using the word required it essential respondents view is that the word shall appearing in twenty two eighty four a actually means may and that the rule required appearing in twenty two eighty four b actually means permitted and that a single district judge in their view can elect whether or not to convene a three judge court if he or she would in his or her discretion prefer to keep the case for him or herself does it depend does your argument depend on categorization what is frivolous to do speak the language as being j judge would be without power to consider the merits of the case covered by the statute but i should say that that also isn't necessarily a question that's presented here because even if it's just a claims processing rule it's still a mandatory claims process and rule and nothing in what the responde indicates that when a request is filed the district judge would be empowered nevertheless to disregard the request and and nevertheless keep the case for himself you don't think the alexa soon to be is jurisdiction does that mean that we must let the single judge determined well i what why is it that the single judge must determine the jurisdictional question why can't that be left out of the three judge court just as everything else  be clear i don't think that single judge does have to decide the jurisdictional question i think again the key point is that the merits have to go to a three judge district court i don't think the court has to say anything more about the in this case because on the face of it what the district court here did was enter judgment under rule twelve and perhaps the jurisdiction has to go to that court as well i think that's right yes perhaps yes the the waiver argument the argument decision and i don't wild and before that and stratton say precisely the opposite they say that it's a jurisdictional statute and moreover when the conditions for convening a three judge court are met that a single judge loses jurisdiction that really that language is best understood as congresses codification of what was by then well settled practice that when any complaint is filed in a district court in necessarily first goes to a single district judge that single district judge then has to make a determination three judges were required and that's typically done in response to a request in reality on the ground what percentage of cases is there a request for a three judge court all of them and then against one this are there any l that say to themselves i'd rather have a one judge court thanks not so far as i'm aware i think in most cases now i think i under the respondents reading of the statute is a one way ratchet permitting only dismiss jurisdiction just as a plaintiff is one of the conditions to satisfy article three and thereby confer jurisdiction that's exactly right and our example is for instance filing a notice of feel in the court of appeals the court doesn't  overly considered if you get back to the question justice kagan asked it was certainly the case when the law was enacted that the three judge court was is an anti plaintiff provision the idea was that single judges were too quickly issuing injunctions you know blocking the state in ackermann's and they thought that would be less likely if you had three judges and i i'm not sure if that's still true today but it certainly was when the law was passed it was it was tru ten when the first version of the statute was an act it was not true by one nine hundred seventy six when the when the amendments at issue here were enacted that much is made clear by the legislative history of the voting rights act which is one of those other statutes that provides for a three judge court review beyond twenty two eighty four the legislative history in that in that with respect to that statute was clear that indeed three judge district courts were more likely to grant relief to plaintiffs than were single judges which that's right and so i think in that respect respondents reading the statute is also quite inconsistent with the well understood purpose of the staff among them key among them to ensure that marriage judgments in cases covered by the act which after the one nine hundred seventy six a quite narrow and cover only a particularly politically sensitive an important cases receive as quick a final decision before this court as possible on respondents reading of the statute a single judge can keep the merits for him or herself and interposed the court of appeals in the process what's more their reading of the statute also creates really difficult jurisdictional problems on appellate review if if a single judge district court can grant a motion to dismiss under twelve b six and it goes before the court of appeals in the court of appeals reverses the upshot is that while three judges were in fact required after all the case then has to get referred to a three judge district court but it's not clear then whether the three judge district court would be bound by law  case on the twelve b six question by the decision of the court of appeals if it is bound that sure it is well really think that's questionable i actually don't think it's questionable i think it's quite inconsistent with what the statute says and be three though and it's an indication why respondents reading the statute can't be the right one because what it means is the twelve b six question then goes to the court of appeals precisely in the circumstances when congress says men congress men only the single judge district court to decide how do you think the  assuming that the possibility that there might be one is enough to take the case to the three judge court and if that's so are there any that would not go to with three judge court i think there are some that wouldn't go political gerrymander and claim that was predicated exclusively on a purported right to proportional representation in congress would be wholly foreclosed by band emerge self by the fact that so long as it favors the party who  party that controlled the legislature when the plan was drawn up which is almost always the case couldn't a political gerrymandering claim be made that's why it was done i think that's right and i think that's why we see most of these claims rightly being sent to three judge district courts just as congress intended we might get to this question but some point somebody is going to have to say whether you do have the substantial that's right i can argue against the backdrop  court's precedents is that's a sufficiently easy question that is it well i think so because there is no no decision of this court binding decision of this court holding that our claim is holy ghost now i think  as i think the threshold question is what is the controlling opinion envy there's a plurality opinion the courts the lower courts of all generally agree that it's justice kennedy's concurrence of either controls and it's justice kennedy's concurrence and b that provides basis for the complaint in this case it would be quite strange to say that a claim that is embodied in the controlling opinion of this court from less than a decade ago was wholly for close by this court's precedents that's why we think it's a sufficiently easy question for this court to remand instruction simply to that well i think i think the single judge allowed judge breyer would have to address the question whether three judges are required under proper standards in this case he said three judges are not required because i dismiss a rule twelve b six i don't think it necessarily this court can reach but it's not so inclined and that will do so before the single judge thank you thank you counsel solving mr chief justice and may please the court in one hundred seventy six congress considerably narrowed the circumstances that would call for the procedural device of a three judge court in as part of that paring down of the three judge statute congress for the first time authorized a single district judge to quote determine that three judges are not required for three reasons this court should affirm that that authorization permits the single district judge required to be convened and so the express language of the statute did not have a provision for the single judge to make that call on what basis are i but in the prior case law before nine hundred seventy six this court had in two important cases permitted a district judge to educate the entire case notwithstanding the presence of a substantial claim raised by the point when those cases are bailey and vine case cited by petitioners there hagan's vs one there was no question there was a substantial equal protection claim the district judge perceived that there's this preemption claim and i think i can get rid of the case by ruling on the preemption claim which is exactly what the district judge did and this court affirmed that that was the correct procedure that there was no reason to trouble a three judge court if there was a statutory claim that could be resolved and render the necessary to address the protection clause so the idea that there was this set understanding that anytime there's a substantial claim it's off limits to a single district judge is simply not borne out by this court's preventing seventy six precedent so there is more work in that press or indeed for those who will consult legislative history the senate report ninety four to zero four has a heading under uncertainties in the prior law in the first item is eight whether or not  three judge court should be convened was the first of the several concerted things that the senate noted in its report so the idea that tissues want to say that by saying not required in the statute congress intended to adopt a certain forbidden to draw district boundaries the way that has been done here i take it that's their basic claim and you're right that would in fact const congressional districts and legislative districts throughout the nation so what reason could congress have had for saying although we have won three judge court to decide these kinds of cases generally where the single most important issue that could possibly be raised i exaggerate only slightly is raised that kind of issues for a single judge well congress if it had looked back at this court's case i would have seen that this court regularly denied three judge court even where there of the statute for very important reasons and that is to minimize the dislocation of the lower federal courts functioning in structure which always happens when you have to bring in two extra judges and secondly to control this court's mandatory appellate docket so those are always at work when the swift and company verses wage one twenty six not in the most embrace in terms but in restricted in a restrictive way because of the important concerns of judicial administration they were at stake but also obviously wouldn't have the same state sovereignty concerns but the foot there was impetus for that adoption from the federal government because they saw the benefits that the states read from having the procedure adopted can i make sure i understand what you're saying because what you're saying now is different from what i had thought that your briefs were saying i had thought in your briefs that you were relying on changes in the law that congress made in i think it's one nine hundred seventy six is that right yes but now you're suggesting that you're not relying on that that you are saying that that before we we viewed as acceptable a one judge court dismissing the case is that now what you're saying that historic practice favors you as opposed to that one thousand nine hundred seventy six amendments favor yeah i think the important thing is the amendments that we pointed out in our brief are worse things difficult changes in in the structure and meaning of the statute but i was responding to petitioners argument that this court can simply look at the words not required and know immediately what they mean from reading the prior case law and i don't think that will be an effective process for this court if it gives for john or for you know i'm trying to provide value now in addition to what we had grounds of unconstitutionality and this court read that phrase not to include a very important clause of the constitution the supremacy clause because it was important to keep it narrow and not to open the floodgates to every preemption challenge that would come down even though those challenges are very important and often much more devastating to the state than a constitutional claim could be that's an example in gonzales this court read the phrase in twenty eight u s twelve fifty three which is the direct appeal  n orders granting or denying an injunction this court read to not include any denial of an injunction that would have been a sound basis for not convening a three judge court in the first place in the court phrased it that broadly to include cases which by the way reason you don't see any old reapportionment cases in the case law is they would have been foreclosed by this court's precedent until they could be car but with the rise of those part of the structure not the three judge so much but it was the direct appeal that became more important to the states to protect them as as was spoken to by the assistant u s attorney general robert dixon who testified and we quote his testimony it page thirty talking about but for that direct appeal in the ability to get an immediate stay from this court entire elections would have had to been conducted under plans that were adopted by district courts contrary to what the legislature had provided and it was very important to have access to this court to this just obviously can't be true because you've got to know what the merits are before you know it's insubstantial i know this court's precedent has treated it as a jurisdictional matter but i would submit that it really doesn't meet the set of deemed to be able to decide it because it's insubstantial even though the chording knowledge is that the theory is not for close by precedent it just comes around to saying yes it is insubstantial and it rules affirms the grant of emotion on the pleadings and the rule twelve c which in the second circuit as in most other circuits is analyzed exactly like the real twelve b six photostat claim motion the claim there was that the state should have used voting age population which interesting enough is the issue the discourse has noted probable jurisdiction on evan well and there are three judge court and never will dismissed under twelve b six so you have a court in the second circuit saying that's insubstantial whether or not they were right where they analyzed it right under goosby they reached that conclusion and they they did it on an analysis that it's hard for me to distinguish from a twelve b six analysis and then the three judge court eleven well which this court will sullivan i guess some i'm not so inclined to think that we we always have had this very narrow category of cases which we say we're dismissing on jurisdictional grounds that sound kind of merit c but but we've and that you know we've basically said that's only when it's completely ridiculous and so there's no case at all it's just a laughingstock of the case given our precedence and that's a very different kind of in then the typical twelve piece x and corey well it's easy when it's the little green men and the extra terrestrials but that's not the cases that have arisen and been addressed by this court goosby author the court of appeals in  ruled that it was insubstantial the claim there that prisoners had to have access to absentee ballots because this court had a prior case mcdonald which had said the prison system there in the election system was it was fine not to allow prisoners to have absolute ballots when it came to this court justice brennan for the court said you've misread our precedent mcdonald doesn't foreclose this case so it involved no extra terrestrial heard some judges will say are the ones that are so outlandish that involved something that on its face you could say that could never be true that that's what you mean by extraterrestrial yes landed ok outlandish i mean bailey was the mirror image case i mean it was a case where some african american plaintiffs were saying they have a constitutional right to travel without discrimination in interstate commerce as i read it and they three judge court because they wanted to set aside mississippi a lot of the contrary nine hundred sixty one and the court said that it's absolutely clear that a statute that requires segregation is unconstitutional so this should not  even been heard by a three judge court because there has to be some kind of an issue in the words it uses are it doesn't require a three judge court when the claim that a statute is unconstitutional is wholly insubstantial but he barely speaking non existent and they said it's non existing because it's clear what the cut federal law was i mean that was the nature so i don't see how that helps you well i don't know if it helps but i think it doesn't help petitioners the idea that that's a significant expansion if not a complete departure from  which addressed when a complaint could be dismissed for lack of subject matter jurisdiction because it insubstantial there the claim is granted relief is granted in that's true but i mean they put down a standard as to whether or not three judge court is necessary and they say a three judge court is not necessary when the reason for giving the three judge court you know if it's if it's insubstantial in that case yet they have a three judge court i guess when there was some constitutional issue said there is no constitutional issue not because it was frivolous or from ours but for the opposite reason the law was clear the law was clear in the single district judge should have been allowed to address that and all right so here he is i guess you're going to think certainly he's not clearly right and the question is is he clearly wrong but i would submit that under this the court's prevailing rule the court after the court adopts the federal rules and all the district judges are bound for them if a district judge is entitled to grant relief as under the bailey case it seems reasonable to allow that judge to determine that a complaint on its face is legally sufficient as the court would in any other case these rules are binding in less you can find in the statute a reason that compels the district judge not to comply with the civil the rules of civil procedure then the district judge is in is or her right for you say required in the statute means states well i think that it could it incorporates that understanding as much as it would incorporate the in some stance reality because both are presumptions that courts rely on a case is not going to proceed past a motion to dismiss certainly not under  following trombley unless it satisfies rule eight that's just a basic understanding of every district court in the land it seems strange that if the cases are that important and they are going to require two extra judges and a direct appeal to this court that a legally insufficient clung point that otherwise could not get past the threshold of the court house is going to get an automatic direct appeal to this court so let's assume you have a district judge who says it fails to state a claim and what is the plaintiff do where  appeal go to the court of appeals as in every other case so it goes all the way up and if he loses in the court of appeals he tries to come up here right and we finally decide it did state a claim and what happens it goes back down and you begin all over again with a three judge court right yes you're on wow that's i mean that's my comment that's ok but that's i understand your reaction but i think that comes when you have a departure from the norm as the three judge statute creates you're going to have some situations that may be a little bit stickier than otherwise that you have in the normal functioning of the country but that's how i mean the other alternative is it's a three judge district court and then we have to take it on the merits i mean that's a serious problem because there are a lot of cases that come up three judge district courts that would be the kind of case speak for myself in a way that we might deny certain to let the issue percolate and now with the three judge district court know we have to decide it on the merits well you've had seven more direct appeals from maryland as we cite in our in our brief that the cases we've had in recent years that were dismissed by single judge they would all come here where one state times fifty four hundred more direct appeals perhaps i don't know how frequently these cases are followed in other  states but that was a concern that that was always lurking in all the cases prior to this court decided was before nine hundred seventy six and was acknowledging this in a report that there is this concern to control this court's mandatory docket which congress cares deeply about because they took away the direct appeal of constitutional claims that would come up from the courts we care even more than congress trust i hope you care deeply and deeply enough to to affirm this reasonable interpretation and i think it will serve the interests of this court and also all the other litigants as well and if you must there are further questions thank you counsel mr campbell you have eleven minutes left just a few quick points first a comment about swift against wycombe this is a case that we addressed on page five in footnote one in our reply brief the holding in that case was simply that a preemption claim is not a constitutional claim within the meaning of the statute there's nothing inconsistent about that holding with our position before this court second with respect to the words plainly that so why it is so clear  did that's not the holding in the case i'm sorry i just that in order to have three judge court you have to bring a constitutional claim and the court's holding in that case was that a preemption claim although it involves a question under the sperms you clause is ultimately really a statutory claim and so it just isn't of the sort that congress meant to to go before a three judge court as a matter of interpretation of the state and it doesn't matter whether that's frivolous or not that's right yeah it's a completely different holding and has nothing whatever to do with the question whether a substantial claim has to go before the three doesn't happen often that a single judge will say there are three issues here one would frequent occurrence the third circuit in page indicated that when that happens because the statute applies to the action that the entire action must go now if i could say something briefly about purpose  my friend on the other side of the podium suggested that the sole purpose here for the statute was to protect states from improvident grants of injunctions if that were the case you would expect in section twenty two fifty three to see which is the provision that provides for appellate review over judgments of three judge district courts you'd expect to see mandatory and direct review before this court only from final judgments of courts granting injunctions but in fact what twenty two fifty three says in expressed terms is that there is a right of immediate appeal before this court from both grants and the nights of relief in cases heard by the judge to say otherwise we would have to say that you get you get no  in one category of case i might you know r i'm not sure it would comply with due process to to have a judgment from which there is no appeal well i think that's what you're saying that that congress would have provided for no appeal whatever if you if you if the state which no appeal for the plaintiffs well i think where is the respondents position is if relief can be denied it may be granted that an order of that sort may be entered by a single district judge and you'd get twelve ninety one review before a court of appeals are our point is only that if the statutory purpose were only to protect states from grants of injunctions you would see and that single judges in turn could decide everything else you would not see in twelve fifty three which provides for media to peel to this court from judgments of three district court judge district courts the right of appeal from a denial really  as far as i understand it his strongest argument on the other side would roughly go he didn't put it this way like this on your side is the fact why wouldn't a three judge court decide a very important question of law in this area on the other side of that is that well you just have left in three judge courts primarily almost exclusively reapportion issues which are specially political and to put these all you know there are very because of the opinions you point out in vith there's a huge variation of all kinds of different legal claims that might be made and if there is a set of cases where this court should be careful as to w and how in which it enters in which order you discretion if we accept your view that set of cases where we should be particularly careful as to how we proceed will be the set of cases where we have no choice and we have to take immediately what ever variations on the theme of disproportionate gerrymandering whatever order they happen to rise and whenever they happen to arise because we have no choice so i have two responses to that the first is it's reflected in the congressional record in the testimony before congress that indeed congress was quite concerned with the political sensitivity of these cases the way that congress decided to deal with that political sensitivity was to ensure that in the first instance these cases are decided by a panel of three judges as as judge henry friendly in his testimony before the ninety second congress indicated their concern was to ensure that it here in civil more than one political party were deciding these cases because not only to ensure greater deliberation and accuracy in decision making but also because it might be unseemly to allow a single judge to decide such a politically sensitive case where it might appear whether or not it actually is true where it might appear to the public that his or her own political i have now you have cases quite often new politically in the most sensitive ones decided by a vote of two to one so i don't know how that that particular answer is very responsive to the concern that justice briar's pointed out which which is one i share well so that leads me to the second half of my response and that is that in the majority of these cases that make it before this court a mandatory review the court generally enters a summary affirm and doesn't know  briefing when the court affirms on the basis of firms on the without taking full argument and briefing there is a limited presidential effect to those decisions it is not binding the same way that a full decision that they're binding in the same way appeals has been summarily with all due respect i think you'd probably be in a better position to answer no i'm just talking about is just a i just i mean it's certainly that the court has been taking on a large number of these cases recently it's been two or three each term i when you say taking them i mean they're being presented to us we have no serious never take right i'm sorry what i mean is noting probable jurisdiction and taking full briefing an argument in two or three such cases each term  that at least as i understand how the court operates is is a question of of discretion whether it now it's probably jurisdiction and takes that additional step on the issue of political sensitivity if it goes to a single judge you will have a decision by a judge who has presumably been selected by the spin of the wheel or at random and then you'll have an appeal to a court of appeals panel that is presumably chosen at random whereas if it goes to a three judge court there will be a decision and it may involve some very sensitive findings of fact by a panel that is hand picked by the chief judge who is in a position to appoint himself or herself to the three judge court and select a third district judge who the chief judge believes is likely to agree with or defer to the chief judge so i don't see how that removes how that creates how the panel was appointed that there might be a basis for raising a concern but it certainly reflected in the congressional record that it was congress's judgment that the best protection against that concern and indeed this goes back to the original version of the act back in hundred ten that congress is concerned was was that the public could rest more easy when decisions of such political importance and sensitivity are decided by three judges rather than one