Bankruptcy, Holidays and Seasons, Nina Totenberg, SCOTUS, Supreme Court

Summer Comes to One First Street

Today, the day after Memorial Day, it feels like summer in Washington. The air is wet and hot; when you’re outside, your clothes stick to your skin fast. I envy the tourists who get to wear shorts to the Supreme Court sessions.

It’s hot in other ways, too — the Court’s term is over at the end of June, and there is only so much time left for the Justices to crank out opinions. There are more TV cameras in front of the Supreme Court today, and the press section of the courtroom is more crowded than in the last few weeks.

Protesters are out at the Supreme Court too — a Lyndon LaRouche supporter asked me whether I can afford to bail out Spain. She smiled so pleasantly that I thought for a second she meant whether I, personally, could afford to bail out Spain. I almost started about talking about my law school debt, but realized that wasn’t what they were asking when I saw the sign urging the repeal of Glass-Steagall.

A woman holding a placard is either pro-Jesus or anti-abortion or both; I have a weak stomach for fetus gore, so I try not to look. I’m as much a fan of the First Amendment as the next guy, but boy does it encourage a freak show.

As with last week, the expectation for a big opinion from the Court is increasing….

Yet it’s also the day after Memorial Day. A three-day weekend is hard to bounce back from for anyone, regardless of whether you have life tenure. Maybe the Justices are still thinking of swimming pools, volleyball, and cooking out? Maybe nothing interesting will come out of the Court today?

Is today the start of a flurry of big opinions, or a sleepy first day back after the holiday weekend?

Three of the Justices — Breyer, Sotomayor, and Thomas — are missing.

I’m sunburned from my long weekend and look to see if the Justices are, too. With a deadline for draft opinions on June 1, it seems unlikely, but I’d like to think they had a few hours to sip on a Pimm’s Cup this weekend.

But none of the Justices look like they spent too much time in the sun. The Clerk of the Court, William Suter, looks a little red faced, but he was talking to Nina Totenberg before the session started, and she was smiling and touching his arm a lot as they talked. Sunburn may not be the only explanation.

There’s one opinion today — by Justice Scalia — RadLax Gateway Hotel v. Amalgamated Bank. The question presented:

Whether a debtor may pursue a chapter 11 plan that proposes to sell assets free of liens without allowing the secured creditor to credit bid, but instead providing it with the indubitable equivalent of its claim under 11 U.S.C. § 1129(b)(2)(A)(iii).

SCOTUSBlog says this question is “perhaps the most hotly-debated issue of bankruptcy law today.”

Perhaps this is why I skip most parties thrown by bankruptcy lawyers. To be honest, I kind of blacked out midway through Justice Scalia’s description of the opinion of the Court. If you practice bankruptcy or are a huge fan of statutory construction canon, then perhaps this is the kind of light-hearted fun you need to start up the short week. Otherwise, it may be worth a miss.

On my way out of the courthouse, five people had joined the woman with the Jesus sign and were staring at the people walking out of the Court.

Red tape covered their mouths.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. He can be reached at mattkaiser@thekaiserlawfirm.

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