Brian Downing
@briandowning.bsky.social
Assistant professor of law at @olemiss.bsky.social this fall. Using this to rate SCOTUS oral args. Rating guide: https://briandowning.medium.com/notes-on-rating-supreme-court-oral-advocacy-0859f8952930. Former Google lawyer/eng.
O’Neil’s step back into the deep history was helpful to Ps, but not enough. Also funny moment in Feigin’s long, expert. savvy argument(s) - m52 “Sorry Justice Kavanaugh, that point was not important enough to be worth interrupting you for.”
November 16, 2025 at 6:14 AM
O’Neil’s step back into the deep history was helpful to Ps, but not enough. Also funny moment in Feigin’s long, expert. savvy argument(s) - m52 “Sorry Justice Kavanaugh, that point was not important enough to be worth interrupting you for.”
No disrespect for compassionate release advocates or habeas skeptics, but I’m not entirely sure why 3 hours and 2 docket spots of SCOTUS’s 50-or-less cases should go to this. Especially when the odds of 3582 blowing a hole in 2255 seem so low.
November 16, 2025 at 6:14 AM
No disrespect for compassionate release advocates or habeas skeptics, but I’m not entirely sure why 3 hours and 2 docket spots of SCOTUS’s 50-or-less cases should go to this. Especially when the odds of 3582 blowing a hole in 2255 seem so low.
m45 Joshi “The Court has a pretty good handle on the issues” is a funny way to start a SG arg, and indeed gets a laugh.
November 16, 2025 at 6:13 AM
m45 Joshi “The Court has a pretty good handle on the issues” is a funny way to start a SG arg, and indeed gets a laugh.
A very, very discreet example of cross-administration consistency - both Trump and Biden decided that a narrow collateral order doctrine, and more appeals in the zone Congress controls, 1292, is better than “standing with” contractors, ICE or otherwise. Guts P’s case.
November 16, 2025 at 6:13 AM
A very, very discreet example of cross-administration consistency - both Trump and Biden decided that a narrow collateral order doctrine, and more appeals in the zone Congress controls, 1292, is better than “standing with” contractors, ICE or otherwise. Guts P’s case.
Notables: m13 Gorsuch annoyed by Jackson interruption as he’s trying to corner Tripp on notice. m42 Barrett putting a lot of pressure on contract = notice theory of P. If only judges in privacy cases were so skeptical of contractual notice!
November 16, 2025 at 6:12 AM
Notables: m13 Gorsuch annoyed by Jackson interruption as he’s trying to corner Tripp on notice. m42 Barrett putting a lot of pressure on contract = notice theory of P. If only judges in privacy cases were so skeptical of contractual notice!
For a big case the oral advocacy was just ok. Tripp‘s arguments were losing steam by the time Barrett starting dropping the hammer, and Baird took a ton of punches admirably, but it wasn’t a fun SG arg. I didn’t feel Aguiñaga fully capitalized on the advantage on R’s turn.
November 16, 2025 at 6:12 AM
For a big case the oral advocacy was just ok. Tripp‘s arguments were losing steam by the time Barrett starting dropping the hammer, and Baird took a ton of punches admirably, but it wasn’t a fun SG arg. I didn’t feel Aguiñaga fully capitalized on the advantage on R’s turn.
I suspect that Roberts will sit in the middle & join whatever side it takes to craft an opinion that best protects the institution and controls excesses. Many thought that would be a 6-3 against Trump before the arg. But it’s just as likely to be 5-4 for Trump from what I heard.
November 7, 2025 at 3:03 AM
I suspect that Roberts will sit in the middle & join whatever side it takes to craft an opinion that best protects the institution and controls excesses. Many thought that would be a 6-3 against Trump before the arg. But it’s just as likely to be 5-4 for Trump from what I heard.
And m126 was a bit overlooked - Barrett concludes ruling for Katyal would leave “a mess.” She likes to try to craft straw opinions late in oral args, and in toying with what a no-tariff win would look like here, didn’t like what she saw. She may hunt for Sauer’s narrow lanes.
November 7, 2025 at 3:03 AM
And m126 was a bit overlooked - Barrett concludes ruling for Katyal would leave “a mess.” She likes to try to craft straw opinions late in oral args, and in toying with what a no-tariff win would look like here, didn’t like what she saw. She may hunt for Sauer’s narrow lanes.
Overall this is one of those cases where Katyal has many ways to win, but Sauer preserved some narrow lanes, & those lanes got a *lot* of attention from Barrett and Kavanaugh in particular. That should leave Katyal worried.
November 7, 2025 at 3:03 AM
Overall this is one of those cases where Katyal has many ways to win, but Sauer preserved some narrow lanes, & those lanes got a *lot* of attention from Barrett and Kavanaugh in particular. That should leave Katyal worried.
Gutman - I’ve seen OR SG give excellent args in the 9th Cir, but the moment got him here. Lots of stuttering & some unfocused points. Didn’t add enough be worth taking the mantle from Katyal. But did land one banger m137: “it’s not a donut hole, it’s a different kind of pastry.”
November 7, 2025 at 3:03 AM
Gutman - I’ve seen OR SG give excellent args in the 9th Cir, but the moment got him here. Lots of stuttering & some unfocused points. Didn’t add enough be worth taking the mantle from Katyal. But did land one banger m137: “it’s not a donut hole, it’s a different kind of pastry.”
Funny moment at m107 when Sotomayor asks Kavanaugh to shake his head yes or no if he’s going to cover Algonquin.
November 7, 2025 at 3:03 AM
Funny moment at m107 when Sotomayor asks Kavanaugh to shake his head yes or no if he’s going to cover Algonquin.
Katyal - Masterful for much of the argument. After a pretty weak argument by his standards in the NVIDIA case, he came out swinging and had a lot of good moves. But when hit hard by Kavanaugh & Barrett, he got on his back foot and made the arg a mixed bag overall.
November 7, 2025 at 3:03 AM
Katyal - Masterful for much of the argument. After a pretty weak argument by his standards in the NVIDIA case, he came out swinging and had a lot of good moves. But when hit hard by Kavanaugh & Barrett, he got on his back foot and made the arg a mixed bag overall.
m42 when Roberts accidentally says “Sotomayor” rather than “Kagan,” Sotomayor says “And they’re friends?” Maybe that makes more sense if you saw it live, but I’d like to think it’s a reference to the NYT article saying they’ve become closer after early tensions.
November 7, 2025 at 3:03 AM
m42 when Roberts accidentally says “Sotomayor” rather than “Kagan,” Sotomayor says “And they’re friends?” Maybe that makes more sense if you saw it live, but I’d like to think it’s a reference to the NYT article saying they’ve become closer after early tensions.
Sauer - generally put in tough positions, which could arguably laid on him/his office. But I’m not sure he could’ve done much better with the stretches he had to make. He’s pretty good at making the incredible credible, which is the primary skill you need to be Trump SG.
November 7, 2025 at 3:03 AM
Sauer - generally put in tough positions, which could arguably laid on him/his office. But I’m not sure he could’ve done much better with the stretches he had to make. He’s pretty good at making the incredible credible, which is the primary skill you need to be Trump SG.
I’m torn on whether Post’s m38 “Whole Foods is sitting right there, they must be a party” is a nice move or a cheap parlor trick. Harrington addresses it first-thing in rebuttal, so she was likely at least a bit worried about it.
November 5, 2025 at 5:10 AM
I’m torn on whether Post’s m38 “Whole Foods is sitting right there, they must be a party” is a nice move or a cheap parlor trick. Harrington addresses it first-thing in rebuttal, so she was likely at least a bit worried about it.
Civ Pro day @ SCOTUS: SMJ, PJ, Notice, Venue, Joinder, Removal; FRCPs 8, 11, 12, 54, 60; §§1292, 1331, 1332, 1367 all noted!
November 5, 2025 at 5:10 AM
Civ Pro day @ SCOTUS: SMJ, PJ, Notice, Venue, Joinder, Removal; FRCPs 8, 11, 12, 54, 60; §§1292, 1331, 1332, 1367 all noted!
m27 the proper handling of “court of clowns” judgments. M29 Kagan: “can reasonable time ever be unlimited time?” “Nope, that’s infinity.” Classic, compact, masterful Lisa Blatt argument.
November 4, 2025 at 10:41 PM
m27 the proper handling of “court of clowns” judgments. M29 Kagan: “can reasonable time ever be unlimited time?” “Nope, that’s infinity.” Classic, compact, masterful Lisa Blatt argument.
But it gets better: Alito: “all Courts of Appeals and commentators come out the other way; how do you explain that?” Blatt: “That’s correct…just last term you ruled against a case I argued where all the Courts ruled the other way.” Alito can’t stop laughing.
November 4, 2025 at 10:41 PM
But it gets better: Alito: “all Courts of Appeals and commentators come out the other way; how do you explain that?” Blatt: “That’s correct…just last term you ruled against a case I argued where all the Courts ruled the other way.” Alito can’t stop laughing.
She explained why with style, of course: m25 Justice Scalia comes back after being treated as super-precedent in Hencely v Fluor yesterday to explain why all the old precedent on void judgments should die too.
November 4, 2025 at 10:41 PM
She explained why with style, of course: m25 Justice Scalia comes back after being treated as super-precedent in Hencely v Fluor yesterday to explain why all the old precedent on void judgments should die too.
Blatt - LISA BLATT IS BACK! After the disastrous AJT last term & other losses in Horn & Miller, she comes back this term on a case where virtually all law cuts the other way. And yet, because it’s Lisa Blatt, you can’t help but listen and think she’s going to win anyway.
November 4, 2025 at 10:41 PM
Blatt - LISA BLATT IS BACK! After the disastrous AJT last term & other losses in Horn & Miller, she comes back this term on a case where virtually all law cuts the other way. And yet, because it’s Lisa Blatt, you can’t help but listen and think she’s going to win anyway.