STEPHEN M. SHAPIRO,ET AL., Petitioners v. DAVID J. McMANUS, JR., CHAIRMAN, MARYLAND STATE BOARD OF ELECTIONS, ET AL
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Antonin Scalia, Sonia Sotomayor
Interviewee(s): Steven M. Sullivan, Michael B. Kimberly

John G. Roberts, Jr.: We'll hear argument first this morning in Case 14-990, Shapiro v. McManus. Mr. Kimberly.

Michael B. Kimberly: Mr. Chief Justice, and may it please the Court: Section 2284(a) states in plain terms that a district court of three judges shall be convened when an action is filed challenging the constitutionality of the apportionment of congressional districts. Section 2284(b) lays out the procedure for calling a three-judge court when the circumstances identified in 2284 are satisfied. It -- it reads, quote, "Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges." Now, although that language did not appear in the statute until the 1976 amendments, it was no more than a congressional recognition and codification of what was then by settled -- what was by then settled practice, that a complaint covered by 2284(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, at the time that Congress enacted that long-standing practice in the 1976 amendments 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 is presumed to have been aware of -- of this Court's precedents so holding, and in the absence of a contrary indication -- and here there is none -- to have intended that interpretation of the words "not required" to be incorporated into the statute.

Samuel A. Alito, Jr.: What if it's perfectly clear that the plaintiffs are entitled to judgment? Let's say the State legislature goes back to its pre Reynolds v. Sims method of constituting the State legislature.

Does that have to be referred to a three-judge court?

Michael B. Kimberly: If it is -- if the claim is obviously foreclosed by this Court's precedents, then no, it doesn't.

The -- the upshot of this Court's insubstantiality doctrine is that when a claim is so obviously foreclosed it doesn't present a bona fide controversy within the meaning of Article III and, therefore, isn't the kind of case that has to be referred to a three-judge court.

Antonin Scalia: Well, what --

Samuel A. Alito, Jr.: How do you square that --

Antonin Scalia: Go ahead.

Samuel A. Alito, Jr.: Okay. How do you square that with the statutory language?

Michael B. Kimberly: 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 2284(b), this Court had said in Goosby that three -- that a three-judge district court is, quote, "not required" when the claim is insubstantial.

Antonin Scalia: Maybe Goosby was wrong. You don't think Goosby was wrong?

Michael B. Kimberly: Well, I -- Goosby represents what had been, by then, nearly 50 years of practice beginning with this Court's decision in Poresky. For what it's worth, I will say I -- I think if Goosby is wrong, we still end up winning because --

Antonin Scalia: Oh, I know that.

Yes. (Laughter.)

John G. Roberts, Jr.: Well -- I'm sorry. Well -- I'm sorry, why don't you --

Michael B. Kimberly: Well, I -- I -- I would just say, I think the path of least resistance here in reversing the Fourth Circuit is not to overturn that precedent.

But we certainly would be happy if the Court were inclined to do that.

John G. Roberts, Jr.: What do you do if your argument in -- 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 the -- those precedents are -- haven't withstood the test of time or whatever. What happens then?

Anthony M. Kennedy: This Court's precedents?

John G. Roberts, Jr.: Yes, yes.

Michael B. Kimberly: This Court's precedents. I think --

Anthony M. Kennedy: I understand the Chief Justice.

Michael B. Kimberly: So I think in that circumstance, at least according to the Goosby rule, is that the case would proper -- properly be dismissed for -- for lack of jurisdiction as not stating --

Anthony M. Kennedy: By the -- by the -- by the single-judge court?

Michael B. Kimberly: By the single-judge court. And -- and if -- if, then, this Court --

Anthony M. Kennedy: I have -- I have some problems with that.

Suppose the -- the case has been on the books from this Court for 15, 20 years, has all sorts of academic commentary; certain circuits have questioned whether the reasoning is still valid. A single-judge court can dismiss in that case?

Michael B. Kimberly: Well, I -- I think according to the substantiality rule, yes.

Again, if the Court were inclined to --

Anthony M. Kennedy: And I'm surprised -- you think they do need to take that position?

Michael B. Kimberly: No.

And 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 -- all the Court has to recognize for the purposes of this case is that the insubstantiality rule is not one and the same as the 12(b)(6) standard.

Anthony M. Kennedy: I -- I take it Goosby is not parallel to Rule 11.

Rule 11 is a class of cases which are more frivolous even than what Goosby would have --

Michael B. Kimberly: No.

I think Goosby is even more frivolous than Rule 11.

What the Goosby --

Anthony M. Kennedy: Oh, really?

Michael B. Kimberly: -- standard provides is that the claim must be obviously frivolous.

And what the Court said in Goosby is -- obviously is doing work in -- in that 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.

Elena Kagan: Am I right that Goosby thought of that as part of the jurisdictional question?

Michael B. Kimberly: That's correct.

Elena Kagan: In other words, it's an application of Bell v. Hood --

Michael B. Kimberly: That's correct.

Elena Kagan: -- which suggests that if something is so obviously frivolous, then the Court has no jurisdiction on it at all?

Michael B. Kimberly: That is not a bona fide case and controversy within the meaning of Article III. That's exactly right.

John G. Roberts, Jr.: But it's a very difficult line you're drawing, and -- and I understand Bell v. Hood.

But you're saying he can't do it.

He can't determine that the three-judge court is not required just because the plaintiffs are wrong, but he can make that determination if they are really wrong. And -- and your brief in the analysis and all this, it -- it is always -- it's -- it's like a thesaurus.

It's just a collection of adjectives that all mean "frivolous," "insubstantial," you know.

And I'm not sure it gives a great deal of guidance to -- to a court.

Michael B. Kimberly: Well, I -- I think I'd say two things about that. The first -- I mean, that -- that catalog of adjectives appears in Goosby.

This is a rule that has been on the books since Poresky in the 1920s.

It -- it isn't, in our view, a rule that has been causing a whole lot of trouble since 1976 amendments.

But again, if -- if the Court is dissatisfied with the ruling, 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.

John G. Roberts, Jr.: Well, you call it -- I guess my concern -- you call it a rule, but it's really not much of a rule.

It's just kind of a -- I don't know, a sense that something is -- is really bad, as I guess I said earlier, as opposed to just bad.

And I think that's an awfully fuzzy line to -- to draw, but fuzzy in -- in when you're talking about jurisdiction where you like to have very precise and clear rules.

Michael B. Kimberly: I -- I agree entirely, and I -- and I guess what I -- what I would say on top of that is that if -- if the Court is concerned to avoid fuzzy and difficult rules, that certainly is a reason not to adopt Respondents' position.

Anthony M. Kennedy: Could the Respondents argue that, in the light of Iqbal and Twombly, Goosby should be reconsidered, and the Federal court should have some -- district court, single judge should have some more authority? Or does that work the other way, do you think?

Michael B. Kimberly: I -- I think it works the other way.

I would be surprised to see Respondents make that argument, because again we're dealing here with a 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 in (b), using the word "required," it -- essentially Respondents' view is that the words "shall appearing" in 2284(a), actually means "may," and that the rule "required appearing" in 2284(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.

Ruth Bader Ginsburg: Does it depend -- does your argument depend on categorization of what is frivolous in the Goosby language as being jurisdictional?

Michael B. Kimberly: I think if the Court were to continue that line of cases here and to hold that that is a basis for declining the convening of a three-judge court, yes.

It depends on it being a jurisdictional question.

Ruth Bader Ginsburg: So what happens under the current statute that calls for a three-judge court on request of a party? Suppose nobody requests the three-judge court.

Would -- could the single judge proceed with the case?

Michael B. Kimberly: Well, our -- our view, in light of this Court's precedence, is no, that it isn't waivable and it's -- it's a jurisdictional statute that -- that the -- the judge would be without -- that a single judge would be without power to consider the merits in 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-processing rule.

And nothing in what the Respondents had said 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.

Antonin Scalia: You -- you -- you don't think -- and let's assume that -- that Goosby is jurisdictional. Does that mean that we must let the single judge determine it?

Michael B. Kimberly: Well, I --

Antonin Scalia: Why is it that the single judge must determine the jurisdictional question? Why can't that be left to the three-judge court just as everything else is?

Michael B. Kimberly: To be clear, I don't think a 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 statute than that in this case because, on the face of it, what the district court here did was enter judgment under Rule 12(b)(6).

Antonin Scalia: Perhaps the jurisdiction has to go to that court as well.

Michael B. Kimberly: I -- I think that's right, yes.

Perhaps, yes.

Anthony M. Kennedy: Does -- does the waiver argument, the argument that this can be waived by the consent of all parties, does that rest on decisions of this Court?

Michael B. Kimberly: Not so far as I'm aware.

I mean, nothing in this Court's precedents indicate that the statute is jurisdictional.

And in fact -- excuse me, that it's waivable.

And in fact, the Court's decision in Idlewild, and before that in Stratton, say precisely the opposite.

They say that it's a jurisdictional statute and, moreover, when the -- the conditions for convening a three-judge court are met, that a single judge loses jurisdiction over the merits of the case, either to grant or to deny relief. Idlewild says that very --

Ruth Bader Ginsburg: In my -- what --

Anthony M. Kennedy: Has the waiver rule been adopted by some of the circuits?

Michael B. Kimberly: Not -- in fact, no.

It -- it's been rejected by every court that's considered it, the Second and D.C. circuits.

Elena Kagan: Well, why do you --

Ruth Bader Ginsburg: But there was a -- there was a change in '76, and that's when they put in "upon the filing of a request." And that language suggests that it isn't a jurisdictional question, because if a party has to request it, it normally follows if a party doesn't request it, it's waived.

Michael B. Kimberly: Well, I -- I -- I wouldn't disagree that that is one possible way to read the statute.

I -- I think it's inconsistent with what this Court's precedents said beforehand.

And our view again is that really that language is best understood as Congress's codification of what was by then well-settled practice, that when any complaint is filed in a district court, it necessarily first goes to a single-district judge.

That single-district judge then has to make a determination whether three judges are required, and that's typically done in response to a request.

Elena Kagan: In reality, on the ground, what percentage of cases is there a request for a three-judge court?

Michael B. Kimberly: Oh, all of them.

And -- and --

Elena Kagan: Litigants want this?

Michael B. Kimberly: Ah --

Elena Kagan: Are there any litigants that say to themselves, I'd rather have a one-judge court, thanks?

Michael B. Kimberly: Not so far as I'm aware.

I think in -- in most cases -- now, I -- I think under the Respondents' reading of the statute is a one-way ratchet permitting only dismissals, but I -- I gather not grants, although it's not clear where, in the statute, the response --

Ruth Bader Ginsburg: It -- wasn't it a practice in the old days that if you didn't want the three-judge court, you simply didn't ask for injunctive relief? You filed a complaint for declaratory relief and then you didn't -- you could get your one judge?

Michael B. Kimberly: That may be so.

To be clear, though -- so first of all, that would just mean that the -- the preconditions for invoking the statutory -- the jurisdictional nature of the statute weren't satisfied, and that certainly is something that litigants could choose.

Antonin Scalia: I don't know why it's contrary to a jurisdictional status that it has to be requested.

I mean, can't a request be one of the conditions to confer jurisdiction just as a plaintiff is one of the conditions to satisfy Article III and thereby confer jurisdiction?

Michael B. Kimberly: That's exactly right.

And our example is, for instance, filing a notice of appeal in the court of appeals.

The Court doesn't have jurisdiction without a request for the --

John G. Roberts, Jr.: Let me get back to the question Justice Kagan asked.

It was certainly the case when the law was enacted that the three-judge court was viewed as an anti-plaintiff provision. The idea was that single judges were too quickly issuing injunctions, you know, blocking the state enactments, and they thought that would be likely if you had three judges.

I'm not sure if that's still true today, but it certainly was when the law was passed.

Michael B. Kimberly: It was true in 1910 when the first version of this statute was enacted.

It was not true by 1976 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 -- statutes that provides for three-judge-court review beyond 2284. 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 is in part what explained why Congress, in that Act, provided for three-judge-court review.

Ruth Bader Ginsburg: And plaintiffs liked it because you could skip over the court of appeals and go right to this Court, and on appeal rather than certiorari.

Michael B. Kimberly: That's right.

And so I think in that respect, Respondents reading the statute is also quite inconsistent with the well-understood purposes of the statute.

Among them, key among them, to ensure that merits judgments and cases covered by the Act, which after the 1976 amendments are quite narrow and cover only particularly politically sensitive and important cases, receive as quick a final decision before this Court as possible. On Respondent's reading of the statute, a single judge can keep the merits for him or herself and interpose 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 12(b)(6) and it goes before the court of appeals and the court of appeals reverses, the upshot is that, well, 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 of the case on the 12(b)(6) question by the decision of the court of appeals. If -- if it is bound, that's --

Antonin Scalia: Sure it is.

Come on.

Michael B. Kimberly: Well --

Antonin Scalia: Really think that's questionable?

Michael B. Kimberly: I actually don't think it's questionable.

I think it's quite inconsistent with what the statute says in (b)(3), though, and it's an indication why Respondent's reading of the statute can't be the right one, because what it means is the 12(b)(6) question then goes to the court of appeals precisely in the circumstances when Congress has meant -- Congress meant only the single-judge district courts decide that.

Samuel A. Alito, Jr.: How do you think the -- the Goosby Rule applies to political gerrymandering claims in general? This Court has never seen one that it thought was justiciable. Do you think there are any that -- but 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 a three-judge court?

Michael B. Kimberly: I -- I think there are some that wouldn't go.

A political gerrymandering claim that was predicated exclusively on a purported rights proportional representation in Congress would be wholly foreclosed by Bandemer itself. But the fact --

Samuel A. Alito, Jr.: But so long as it favors who -- the 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 that's why it was done?

Michael B. Kimberly: I -- 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.

Stephen G. Breyer: We might get to this question, but at some point somebody is going to have to say whether you do have a substantial claim.

Michael B. Kimberly: That's right.

And our view, against the backdrop of this Court's precedence, is that's a sufficiently easy question that --

Stephen G. Breyer: Is it?

Michael B. Kimberly: Well, I think so --

Stephen G. Breyer: Because?

Michael B. Kimberly: There is no -- no decision of this Court -- binding decision of this Court holding that our claim is wholly foreclosed.

Anthony M. Kennedy: Vieth?

Michael B. Kimberly: No.

I think Vieth --

Stephen G. Breyer: Because? (Laughter.)

Michael B. Kimberly: Well, Vieth -- Vieth has -- I think the threshold question is what is the controlling opinion in Vieth.

There's a plurality opinion.

The courts -- the lower courts have all generally agreed that it's Justice Kennedy's concurrence in Vieth that controls.

And it's Justice Kennedy's concurrence in Vieth that provides the 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 is wholly foreclosed by this Court's precedence.

That's why we think it's a sufficiently easy question for this Court to remand with instruction simply to convene a three-judge court, but if the Court were not inclined to go that far, we're perfectly comfortable briefing that question before the single judge. If there are no further questions, I'll reserve --

Anthony M. Kennedy: I didn't understand.

If you're not going to go that far, you want to brief what question before the district?

Michael B. Kimberly: Well, I think -- I think the single judge below 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 under Rule (12)(6)

I -- I don't think it necessarily follows --

Anthony M. Kennedy: So you'd want to brief it under Goosby or something?

Michael B. Kimberly: Yeah, that's right, under the proper insubstantiality standard. Now, as I say, I think that issue has been briefed before this Court, and it's a sufficiently easy question to answer --

Anthony M. Kennedy: Oh, I see.

Michael B. Kimberly: -- that it's something this Court can reach.

But if it's not so inclined, then -- then we'll do so before the single judge. Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Sullivan.

Steven M. Sullivan: Mr. Chief Justice, and may it please the Court: In 1976, Congress considerably narrowed the circumstances that would call for the procedural device of a three-judge court.

And as part of that pairing 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 to dismiss a complaint that, on its face, fails to satisfy Rule 8 and Rule 12(b)(6) as required in all civil actions.

Ruth Bader Ginsburg: May I go back to something you just said? Because I thought that the word "required" was in the statute.

It wasn't introduced in '76; it was there before.

Steven M. Sullivan: Well --

Ruth Bader Ginsburg: Required to be heard by a three-judge court.

Steven M. Sullivan: But it wasn't for an authorization for a single judge.

In the prior statute, upon the filing of the request for injunctive relief, the three-judge court was 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.

Sonia Sotomayor: On what basis are -- it sounds to me that you're giving a meaning to "not required" that was different to the meaning we gave to it pre-1976.

Am I correct?

Steven M. Sullivan: I -- I don't think that's necessarily the case.

I think not required meant that it didn't have a set meaning as plaintiffs --

Sonia Sotomayor: I -- he took out the adjectives, descriptors from our case law: "Insubstantial," "wholly insubstantial," "frivolous," "obviously or essentially frivolous." I mean --

Steven M. Sullivan: But that --

Sonia Sotomayor: -- that's very different than a 12(b)(3) motion.

Steven M. Sullivan: Yes, Justice Sotomayor, that -- those words appear, but in the prior case law before 1976, this Court had, in two important cases, permitted a district judge to adjudicate the entire case notwithstanding the presence of a substantial claim raised by the plaintiff.

And those cases are Bailey and the Hagans v Lavine case cited by Petitioners. There, Hagans v. Lavine, 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 the three-judge court if there was a statutory claim that could be resolved and rendered unnecessary to address the equal protection clause. So the idea that there was this set understanding that any time there's a substantial claim it's off limits to a single district judge is simply not borne out by this Court's pre-1976 precedent.

So there's more at work in that precedent. Indeed, for those who will consult legislative history, the Senate Report 94204 has a heading under uncertainties in the prior law, and the first item is A, whether or not a three-judge court should be convened was the first of the several uncertainties that the Senate noted in its report. So the idea that Petitioners want to say that by saying "not required" in the statute, Congress intended to adopt a certain subset of this Court's prior jurisprudence is not borne out by --

Stephen G. Breyer: Well, they -- they want to raise about as important a question as you can imagine. They want to say, reading Vieth, that the State legislators are forbidden to draw district boundaries the way that has been done here.

I take it that's their basic claim.

And if they are right, that would affect congressional districts and legislative districts throughout the nation. So what reason could Congress have had for saying, although we want three-judge courts to decide these kind of cases generally, where the single-most important issue that could possibly be raised -- I exaggerate only slightly -- is raised, that kind of issue is for a single judge?

Steven M. Sullivan: Well, Congress, if it had looked back at this Court's case law, would have seen that this Court regularly denied three-judge courts even where there was an important issue such as when the preemption was the issue.

Preemption cases --

Sonia Sotomayor: Do you want to give me a list of those cases with -- I'm going to continue it.

Steven M. Sullivan: Yes.

Swift -- Swift and Company --

Sonia Sotomayor: Answer Justice Breyer.

Steven M. Sullivan: So the -- the Court's concern, it was always a narrow interpretation of the statute for very important reasons.

And that is to minimize the dislocation of the lower Federal courts' functioning and 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 Court was reading the statute.

And Congress knew this.

And on page 5, the Senate report acknowledges this narrow reading without disavowing it or instructing this Court to do otherwise. So the statute always was read not in the most embracing terms, as it said in Swift & Company v. Wickham at page 126, not in the most embracing terms, but in restrictive -- in a restrictive way because of the important concerns of judicial administration that were at stake, but also to best serve the historical purpose, which is to protect States from the improvident injunction by a single judge.

Ruth Bader Ginsburg: Well, haven't they strayed from that -- or Congress has, because Congress said you also get a three-judge court if you're attacking a Federal statute, right? It started out with the concern about enjoining State statutes.

But if you were trying to enjoin a Federal statute, you could also get a three-judge court, right? And there was no State-protective interest involved in that.

Steven M. Sullivan: That was probably to protect an analogous Federal interest in having its -- its laws not improvidently enjoined.

That statute is no longer there, as you know.

But that obviously wouldn't have had the same State sovereignty concerns, but the -- there was impetus for that adoption from the Federal Government because they saw the benefits that the States reached from having the procedure adopted.

Elena Kagan: 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 -- that Congress made in -- I think it's 1976; is that right?

Steven M. Sullivan: Yes.

Elena Kagan: But now you're suggesting that you're not relying on that, that you're saying that before that, we -- we viewed as acceptable a -- a one-judge court dismissing a case.

Is that now what you're saying, historic practice favors you as opposed to the -- the 1976 amendments favor you?

Steven M. Sullivan: I think the important thing is the amendments that we pointed out in our brief are -- were significant 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 full --

Antonin Scalia: It's a winner for you -- it's a winner for you if those prior cases say what you say they say.

Steven M. Sullivan: I hope so, Your Honor.

And I hope you'll remember that.

Antonin Scalia: Well, it should have been in your brief.

I mean, you should have made that point in your brief.

Steven M. Sullivan: Well, you know, I'm trying to provide value now in addition to what we had in the brief. (Laughter.)

Sonia Sotomayor: For my edification, what are the cases -- I know Bailey is one.

What are the other ones you're relying on?

Steven M. Sullivan: Well, in Swift v. Wickham is the best exposition of what this narrow construction or restrictive construction is about.

The words clearly said in the prior statute, "On 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 more devastating to the State than a constitutional claim could be. That's an example. In Gonzalez, this Court read the phrase in 28 U.S. 1253, which is the direct appeal provision -- "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. And the Court phrased it that broadly to include whatever basis there might be to not convene a three-judge court.

That means you don't get the direct appeal, which is a very important part of this whole statutory scheme. It became more important with the rise of the reapportionment cases, which, by the way, the 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 Baker v. Carr. But with the rise of those, the 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 Dickson who testified.

And we quote his testimony at page 30, talking about, but for that direct appeal and the ability to get an immediate stay from this Court, entire elections would have had to be conducted under plans that were adopted by district courts contrary to what the legislature had provided and very important to have access to this Court to get that stay and not to have the entire election disrupted by that order. The idea that Petitioner insists on that the insubstantial rule is not a merits-based test is just obviously can't be true, because you have 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 -- it really doesn't meet the set of tests that Justice Ginsburg laid out for the court in Arbaugh of what's jurisdictional and what's not. And the idea that there's a clear division between insubstantially and failure to state a claim is not borne out.

And in one of the cases cited by the Petitioner in their brief at page 23, Kalson v. Paterson, the 2008 Second Circuit case illustrates that, because there a single-district judge is deemed able to decide it because it's insubstantial, even though the court acknowledges that the theory is not foreclosed by precedent. It just comes around to saying, yes, it is insubstantial.

And it rules, it affirms the grant of a motion on the pleadings under Rule 12(c), which in the Second Circuit, as in most other circuits, is analyzed exactly like a Rule 12(b)(6) failure to state a claim motion. The claim there was that the State should have used voting age population, which, interesting enough, is the issue that this Court has noted probable jurisdiction on in Evenwell.

And there a three-judge court in Evenwell dismissed under 12(b)(6). So you have a court in the Second Circuit saying that's insubstantial.

Whether or not they were right or 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 12(b)(6) analysis.

And then the three-judge court in Evenwell, which this Court will be visiting, did the whole matter under a 12(b)(6) analysis, which is maybe a little more detailed than the Second Circuit in insubstantially analysis, but really hard to tell the difference.

How did you reach that conclusion?

Elena Kagan: Mr. Sullivan, I -- I -- I guess I'm -- I'm not so inclined to think that.

We always have had this very narrow category of cases which we say we're dismissing on jurisdictional grounds that sound kind of merits-y.

But -- but we've cabined 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 laughing stock of a case, given our precedents.

And that's a very different kind of inquiry than the typical 12(b)(6) inquiry.

Steven M. Sullivan: Well, it's easy when it's the little green men and the extraterrestrials, but that's not the cases that have arisen and been addressed by this Court.

Goosby v. Osser, the court of appeals in that case 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 and the election system was -- it was fine not to allow the prisoners to have absentee ballots. And when it came to this Court, Justice Brennan for the Court said, you've misread our president; McDonald doesn't foreclose this case.

So it involved extraterrestrials and no little green men.

But a panel --

Antonin Scalia: I don't know what you mean by "extraterrestrials." What are these --

Steven M. Sullivan: Some of the case law refers to --

Antonin Scalia: Aliens? No?

Steven M. Sullivan: Aliens -- aliens.

Some of the case law seems to -- to categorize only the -- the only cases that would come under Bell v. Hood, some judges will say are the ones so outlandish that involves something that on its face you could say that could never be true.

Antonin Scalia: Okay.

And that -- that's what you mean by "extraterrestrial"?

Steven M. Sullivan: Yes.

Antonin Scalia: Outlandish.

Okay.

Steven M. Sullivan: Outlandish.

Antonin Scalia: Okay.

Stephen G. Breyer: Bailey is -- 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 convened a three-judge court because they wanted to set aside Mississippi law to the contrary, in 1961.

And the court said, but it's absolutely clear that a statute that requires segregation is unconstitutional.

So this shouldn't have even been heard by a three-judge court because there has to be some kind of an issue.

And the words it uses are it doesn't require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial.

Steven M. Sullivan: But there's --

Stephen G. Breyer: He's speaking nonexistent. And they said it's nonexistent because it's clear what the Federal law was.

I mean, that was the nature. So -- so I don't see how that helps you.

Steven M. Sullivan: 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 Bell v. Hood, which addressed when a complaint could be dismissed for lack of subject matter jurisdiction because it's insubstantial.

There the claim is granted, relief is granted in --

Stephen G. Breyer: That's true, but I mean, they put down a standard as to whether or not a 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 you have to have a three-judge court, I guess, when there's some constitutional issue.

They said there is no constitutional issue, not because it was frivolous or from Mars, but for the opposite reason: The law was clear.

Steven M. Sullivan: The law was clear, and --

Stephen G. Breyer: Yes.

Steven M. Sullivan: -- the single-district judge should have been allowed to address that in argument --

Stephen G. Breyer: All right.

So here his -- I guess you're going to think certainly, he's not clearly right, and the question is, is he clearly wrong.

Steven M. Sullivan: But I would submit that, under this -- the Court's prevailing rule, the Court -- the Court adopts the Federal rules, and all -- all 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 -- these rules are binding, unless 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 his or her rights?

Antonin Scalia: So you say "required in the statute" means "states a claim"?

Steven M. Sullivan: Well, I think that it could -- it incorporates that understanding as much as it would incorporate the insubstantiality, because both are presumptions that courts rely on.

A case is not going to proceed, pass a motion to dismiss, certainly not under Iqbal and Twombly, unless it satisfies Rule 8. That's just a basic understanding of every district court in the land.

And it seems strange that, if -- if the cases are that important and they're going to require two extra judges and a direct appeal to this Court, that a legally insufficient complaint that otherwise could not get past the threshold of the courthouse is going to get a direct appeal to this Court.

Antonin Scalia: So let -- let's assume you have a district judge who says it fails to state a claim.

And -- what does the plaintiff do? Where does the appeal go?

Steven M. Sullivan: To the court of appeals, as in every other case.

Antonin Scalia: So it goes all the way up, and if -- if he loses in the court of appeals, he tries to come up here, right? And we finally decide it did state a claim.

Then what happens? It goes back down and you begin all over again with a three-judge court, right?

Steven M. Sullivan: Yes, Your Honor.

Antonin Scalia: Wow.

Wow, that's -- I mean, that's my comment. (Laughter.)

Antonin Scalia: It's extraterrestrial, as he said. (Laughter.)

Steven M. Sullivan: But -- but I -- 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 had in a normal functioning of the content.

But that's happened.

John G. Roberts, Jr.: 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 in three-judge district courts that would be the kind of case -- I speak for myself, anyway -- that we might deny cert in, to let the issue percolate.

And now with the three-judge district court, no, we have to decide it on the merits.

Steven M. Sullivan: Well, you 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 a single judge, they would have all come here.

And we're one State times 50 -- 400 more direct appeals, perhaps? I don't know how frequently these cases are filed in other States. But that was a concern that -- that was always lurking in all the cases prior that this Court decided before 1976 and was acknowledged in the 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.

Antonin Scalia: We care even more than Congress.

Trust me.

Steven M. Sullivan: I hope you care deeply and -- and deeply enough to -- to affirm this reasonable interpretation.

And I think it will serve the interest of -- of this Court and also all the other litigants as well. And if -- unless there are further questions, we submit.

John G. Roberts, Jr.: Thank you, counsel. Mr. Kimberly, you have 11 minutes left.

Michael B. Kimberly: Just a few quick points. First, a comment about Swift v. Wickham. This is a case that we addressed on page 5 in footnote 1 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 --

Antonin Scalia: Explain why that's so.

Why is -- why is that so clear that -- that it's frivolous, you know?

Michael B. Kimberly: Well, I -- I don't -- that's not the holding in the case.

I'm sorry.

I just -- the -- the -- in order to have a 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 supremacy 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 statute.

Antonin Scalia: And it doesn't matter whether that's frivolous or not?

Michael B. Kimberly: That's right.

Yes.

It -- it's a completely different holding.

It has nothing whatever to do with the question whether a substantial claim has to go before the three-judge court.

Anthony M. Kennedy: Does it happen often that a single judge will say there are three issues here; one would definitely involve a three-judge court, but the previous are ones that I can reach, and so I will reach those first. Does that happen very often?

Michael B. Kimberly: Not so far we're aware of. We -- we are aware that it has happened.

It doesn't seem to be a 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 2253, to see -- which is the -- 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 2253 says in express terms is that there's a right of immediate appeal before this Court from both grants and denials of relief in cases heard by the two district courts.

Antonin Scalia: To -- to -- to say otherwise, we -- we would have to say that you get -- you get no appeal in one category of case.

I -- I -- I -- you know, I'm -- I'm not sure it -- it would comply with due process to -- to have a judgment from which there is no appeal.

Steven M. Sullivan: Well, I think --

Antonin Scalia: And that's what you're saying, that -- that Congress would have provided for no appeal whatever if you -- if you -- if -- if -- if the State wins.

No appeal for the plaintiffs.

Michael B. Kimberly: Well, I -- I -- I think 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 1291 review before a court of appeals. Our -- our -- 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 1253, which provides for immediate appeal to this Court from judgments of three-district court -- three-judge district courts, the right of appeal from a denial of relief.

Stephen G. Breyer: I -- as far -- 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, well, why wouldn't a three-judge court decide a very important question of law in this area? On the other side of it is that, well, you just have left, in three-judge courts primarily, almost exclusively, reapportionment issues, which are specially political. And to put these all, you know, they are very -- because of the opinions you point out in Vieth, 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 when and how and which it enters in which order, i.e., 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 whatever variations on the theme of disproportionate gerrymandering, da da da, whatever order they happen to arise and whenever they happen to arise, because we have no choice.

Michael B. Kimberly: So I have two responses to that.

The first is it's reflected in the congressional record and 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 92nd Congress, indicated there. The concern was to ensure that adherents of more than one political party were deciding these cases because, not only to ensure greater deliberation and accuracy and 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 ideologies and predilections --

John G. Roberts, Jr.: So now you have -- now you have cases quite often, particularly in the most sensitive ones, decided by a vote of two to one.

So I don't know how that -- how that particular answer is very responsive to the concern that Justice Breyer has pointed out, which -- which is one I share.

Michael B. Kimberly: Well, so that leads to me to the second half of my response, and that is that in the majority of these cases that make it before this Court on mandatory review, the Court generally enters a summary affirmance and doesn't note probable jurisdiction and take full briefing. When the Court affirms on the basis -- affirms on the -- without taking full argument and briefing, there's 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 as a decision following full briefing --

Samuel A. Alito, Jr.: Well, to go back to your --

John G. Roberts, Jr.: Just to follow up: In -- in recent years, is it true that in reapportionment cases, the majority of the way we've handled direct appeals has been summarily?

Michael B. Kimberly: With all due respect, I think you'd probably be in a better position to answer that.

John G. Roberts, Jr.: No, no.

I'm just talking statistically.

Michael B. Kimberly: I mean, certainly the Court has been taking a large number of these cases recently. It's been two or three each term.

I --

John G. Roberts, Jr.: When you say "taking" them, I mean, they're being presented to us. We have no choice, but taking -- (Laughter.)

Michael B. Kimberly: Right.

And I'm sorry.

What I mean is noting probable jurisdiction and taking full briefing and arguments in two or three such cases each term. But that, at least as I understand how the Court operates, is -- is a question of -- of discretion, whether it notes probable jurisdiction and takes that additional step.

Samuel A. Alito, Jr.: 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 by -- 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 -- how that creates an insulation against the appearance of political favoritism.

Michael B. Kimberly: Well, I -- it may be so that in those cases, if -- if a litigant or a member of the public dug down behind how the panel is appointed, that there might be a basis for raising a concern.

But it's certainly reflected in the congressional record that it was Congress's judgment that the best protection against that concern -- and -- and indeed, this goes back to the original version of the Act back in 1910, that Congress's concern was that the public could rest more easy when decisions of such political importance and sensitivity are decided by three judges rather than one. If there are no further questions.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.