Legal Case Summary

We'll hear argument first this morning in case 14 990 Shapiro versus McManus. Mr. Kimberly? Mr. Chief Justice and may it please the Court. Section 2284A 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 2284B lays out the procedure for calling a three-judge court when the circumstances identified in 2284 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 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 then settled practice that a complaint covered by 2284A 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 longstanding practice in the 1976 amendments to the Act, this Court's precedence 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 this Court's precedence, 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. What if it's perfectly clear that the plaintiffs are entitled to judgment? Let's say a state legislature goes back to its pre-renults 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 precedence, then no, it doesn't. But the upshot of this Court's insubstantiality doctrine is that when a claim is so obviously foreclosed, it doesn't present a bonafide controversy within the meaning of Article 3, and therefore isn't the kind of case it has to be referred to a three-judge court. How do you square that with the statutory language? Well, we think that's embodied in the words not required. In the two and three years before Congress inserted the key language in Section 2284B, this Court had said in Goosby that a three-judge district court is, quote, not required when the claim is insubstantial. Maybe Goosby was wrong. You don't think Goosby was wrong. Well, 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 think if Goosby is wrong, we still end up winning because

. Oh, I know that, yeah. Well, I'm sorry. What do you, I'm sorry, why don't you? Well, I would just say I think the path of least resistance here to reversing the forecerc is not to overturn that precedent, but we certainly would be happy if the Court weren't going to do that. What do you do if your argument in a case that might go before a three-judge court is that the Court's precedence should be overruled? It's clearly foreclosed by the Court's precedence, but maybe there's a very good argument that the, those precedents are, I haven't, withstood the test of time or whatever. What happens? This Court's precedence. Yeah. This Court's precedence, I think. I understand the chief's. I am. So I think in that circumstance, at least according to the Goosby rule, is that the case would properly be dismissed for lack of jurisdiction is not stating. By the, by the, by the single judge court. By the single judge court. And, and if, if then this Court's, I have some problems with that. Suppose the, the case has been on the books from this Court for 15, 20 years, there's all sorts of academic commentary, certain circuits of question whether the reasoning is still valid. 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 take, they do need to take that position. 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, 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 insubstantiality rule is not one in the same as the 12b6 standard. I take it. A Goosby is not parallel to Rule 11. Rule 11 is a class of cases which are more frivolous, even than what Goosby would- No, I think Goosby is even more frivolous than Rule 11. What the Goosby standard provides- is that the claim must be obviously frivolous. And what the Court said in Goosby is obviously is doing work 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. And my right that Goosby thought of that as part of the jurisdictional question- That's correct. In other words, it's an application of Belvihud, which suggests that if something is so obviously frivolous, then the Court has no jurisdiction on it at all. That it's not a bona fide case in controversy within the meaning of Article III. That's exactly right. But it's a very difficult line you're drawing and I understand Belvihud, but you're saying you can't do it. He can't determine that the Three-Jose Court is not required just because the plaintiffs are wrong. But he can make that determination if they're really wrong. And your brief in the analysis, all you say, it is always, it's like a pussar. It's just a collection of adjectives that all mean frivolous and substantial. And I'm not sure it gives a great deal of guidance to a Court. Well, I think I'd say two things about that

. The first, I mean, that catalog of adjectives appears in Goosby. This is a rule that has been on the books since Poreski in the 1920s. It isn't, in our view, a rule that has been causing a whole lot of trouble since 1976 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-Jose is not required, we still, I think it still would require a reversal of the Four-circuits rule and of the District Court's judgment in this case. Well, you call it a rule, but it's really not much of a rule. It's just kind of a sense that something is really bad, I guess I said earlier, as opposed to just bad. And I think that's an awfully fuzzy line to draw. A fuzzy end when you're talking about jurisdiction where you like to have very precise and clear rules. I agree entirely, and I guess what I would say on top of that is if the Court is concerned to avoid fuzzy and difficult rules, certainly is a reason not to adopt a Respondent position. Could the Respondent argue that in the light of Iqbal and Twambley, Goosby should be reconsidered and the Federal Court should have some 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 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 word shall appearing in 2284A actually means May, and that the rule required appearing in 2284B 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, and his or her discretion prefer to keep the case for him or herself. Does it depend, does your argument depend on categorization of what is frivolous to the Who-Speed language as being jurisdictional? I think if the Court were to continue that line of cases here and to hold that that is a basis for declining to convene a Three-Judge Court, yes, it depends on it being a jurisdictional question. So what happens under the current statute that calls for a Three-Judge Court on request of a party? Suppose nobody requests this Three-Judge Court would the single does proceed with the case? Well, our view in light of this Court's precedence is no. That it isn't wavable, and it's a jurisdictional statute that 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 have said indicates that when a request is filed, the District Judge would be empowered nevertheless to disregard the request and nevertheless keep the case for himself. You don't think that let's assume that that calls to be is jurisdiction

. Does that mean that we must let the single judge determine it? Well, I- Why is it that the single judge must determine the jurisdictional question? Why can't that be left for the Three-Judge Court just as everything else is? 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 the 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 12-16. Perhaps the jurisdiction has to go to that Court as well. I think that's right. Yes. Perhaps. Yes. 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? Not so far as I'm aware. I mean, nothing in this Court's precedence indicate that this statute is jurisdictional. And in fact, excuse me, that it's waivable. And in fact, the Court's decision in idle wild and before that in 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 over the merits of the case either to grant or to deny relief. The wild says that very well. In what is the waiver rule been adopted by some of the circus? Not in fact, no. It's been rejected by a record that's considered at the second of the V.C. circus. But 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 the party has to request it. And normally, if a party doesn't request it, it's waived. Well, I wouldn't disagree that that is one possible way to read the statute. I think it's inconsistent with what this Court's precedent 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 where the 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? Oh, all of them. And this is- Lidigants want this? Are there any Lidigants 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 under the respondents reading of the statute is a one-way ratchet permitting only dismissals, but I gather not grants, although it's not clear where in the statute the response is. Well, it wasn't in a practice in the old days that if you didn't want the Three-Judges Court, you simply didn't ask for an objective relief. You filed a complaint for a declaratory relief, and then you didn't, you could get your One-Judge. That may be so. To be clear though, so first of all, that would just mean that the preconditions for invoking the statute toward the jurisdictional nature of the statute weren't satisfied, and that certainly is something that, but against could choose. I don't know why it's contrary to a jurisdictional status that it has to be requested. I mean, can a request be one of the conditions to confer jurisdiction? Just as a plaintiff is one of the conditions to satisfy Article 3, and thereby confer jurisdiction. That's exactly right. In 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 Court of Appeal. To 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, blocking the state enactments, and they thought that would be less 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. It was true in 1910 when the first version of the statute was enacted. It was not true by 1976 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 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 by Congress in that act provided for Three-Judge Court review. And plaintiffs liked it because you could skip over the Court of Appeals and go right to this Court and on appeal rather than socially. 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 a particularly politically sensitive and 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 interpose the Court of Appeals in the process. What's more, their reading of the statute also creates really difficult jurisdictional problems on a pellet review. If a single judge district court can grant a motion to dismiss under 12b6 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 12b6 question by the decision of the Court of Appeals. If it is bound, that's- Sotomayor, it is. Come on. 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 in B3, though, and it's an indication why respondents reading of the statute can't be the right one. Because what it means is the 12b6 question then goes to the Court of Appeals precisely in the circumstances when Congress men- Congress men only the single judge district court decide that. How do you think the Goosby rule applies to political gerrymandering claims in general? This Court has never seen one that it thought was justishable

. 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 the Three-Judge Court? I think there are some that wouldn't go. A political gerrymandering claim that was predicated exclusively on a purported right to proportional representation in Congress would be wholly foreclosed by Bandimer itself. But the fact- It's so long as it favors the party 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. 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 at some point somebody's going to have to say, whether you do have a substantial claim. That's right. And our view against the backdrop of this Court's precedence is that's a sufficiently easy question that- Is it? Well, I think so. There is no decision of this Court, binding decision of this Court, holding that our claim is wholly- The- No, I think the threshold question is what is the controlling opinion of the Veeeth? There's a plurality opinion that courts- The lower courts have all generally agreed that it's just as candidates, concurrence and Veeeth that controls. And it's just as candidates, concurrence and Veeeth 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 remain with instructions 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. There are no further questions over as there are- I think- None of the things- If you're not inclined to go that far, you want to brief what question before the Well, 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 12b6. I don't think it necessarily follows. So you'd want to brief it under Gooseby or something like that? Yes, that's right. Under the proper and substantiality standard. Now, as I say, I think that issue has been briefed before this Court and it's a sufficiently easy question to answer

. Oh, I see. That is something this Court can reach, but if it's not so inclined, then we'll do so before the single judge. Thank you. Thank you, Council. Mr. 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 in- As part of that, pairing down of the Three-Judges 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 the complaint that on its face fails to satisfy Rule 8 and Rule 12b6 as required in all civil actions. I'm sorry. May I go back to something that just said we could? I thought that the word required was in the statute, wasn't introduced in 76. It was there before. Well, required to be heard by Three-Judges Court. But it wasn't for an authorization for a single judge in the prior statute upon the filing of the request for injunct of relief. The Three-Judges 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. On what basis are, it sounds to me, that you're giving a meaning to not require that was different to the meaning we gave to a pre-1976. Am I correct? I don't think that's necessarily the case

. I think not required meant that it didn't have a set meaning as plaintiffs. I, he took out the adjective of descriptors from our case law in substantial, wholly in substantial, frivolous, obviously or essentially frivolous. I mean, that's very different than a 12b3 motion. Yes, Justice Sotomayor. 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. In those cases are Bailey and the Hagen's versus Levine case cited by petitioners. There, Hagen's versus Levine, there was no question there was a substantial equal protection claim. But 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 rendered unnecessary to address the protection clause. So the idea that there was this set understanding that any time there's a substantial claim, its off limits to a single-district judge is simply not borne out by this Court's pre-1976 precedent. So there is more 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 the Court. Well, they want to raise about as important a question as you can imagine. They want to say reading beef that the State Legislatures are forbidden to draw district boundaries the way that has been done here. I take it, that's their basic claim. And you can write 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 kinds of cases generally, were 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

. 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. Yes, swift and complete. So that the Court's concern 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 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 Court was reading the statute in Congress knew this, and on page five of 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 they said, in swift and company versus, welcome, at page 126, not in the most embracing terms, but in restrictive, in a restrictive way, because of the important concerns of judicial administration, their word, state, but also to best serve the historical purpose which is to protect states from the in-provening injunction by a single judge. Well, it's just a little bit to grade from that, and Congress has, because, as Congress said, you also get a three-judge Court if you're attacking a federal statute, right? It started out with the concern about enjoying state statutes, but if you were trying to enjoy a federal statute, you would also get a three-judge Court, right? And there was no State Protective Interest involved in that. That was probably to protect an analogous federal interest in having its laws not improbantly enjoined that statute is no longer there, as you know. But that obviously wouldn't have had the same State's sovereignty concerns, but 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, and I think it's 1976, is that right? Yes. But now you're suggesting that you're not relying on that, that you're saying that before that, we viewed as acceptable a one-judge Court dismissing a case. Is that now what you're saying? With historic practice favors you, as opposed to that the 1976 amendments favor you? I think the important thing is the amendments that we pointed out in our brief are were significant changes in the structure and meaning of the statute. But I was responding to Petitioner's 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 order for you. It's a winner for you if those prior cases say what you say they say. I hope so, Your Honor, and I hope you remember that. Well, it should have been in your brief. I mean, you should have made that point in your brief. Well, I'm trying to provide value now in addition to what we had in the brief. For my edification, I know Bailey is one. What are the other ones you're relying on? Well, in Swift versus 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 or 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 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 in 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 was spoken to by the Assistant U.S. Attorney General Robert Dixon, 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 it was 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 Petitionary Insist-on, that the insubstantiality rule is not a merit-based test, it's 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 tests that Justice Ginsburg laid out for the Court in our ball of what's jurisdictional or what is not. And the idea that there's a clear division between insubstantiality and failure to state acclaim is not borne out, and in one of the cases cited by the Petitionary Insider in their brief at page 23, it calls to be Patterson, a 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 for close by precedent

. For my edification, I know Bailey is one. What are the other ones you're relying on? Well, in Swift versus 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 or 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 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 in 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 was spoken to by the Assistant U.S. Attorney General Robert Dixon, 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 it was 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 Petitionary Insist-on, that the insubstantiality rule is not a merit-based test, it's 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 tests that Justice Ginsburg laid out for the Court in our ball of what's jurisdictional or what is not. And the idea that there's a clear division between insubstantiality and failure to state acclaim is not borne out, and in one of the cases cited by the Petitionary Insider in their brief at page 23, it calls to be Patterson, a 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 for close 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 12C, which in the Second Circuit, as in most other circuits, is analyzed exactly like a Rule 12B6 for you to state acclaim motion. The claim there was that the State should have used voting age population, which is interesting enough, is the issue that this Court has noted probable jurisdiction on in Evanwell, and there are three judge court in Evanwell dismissed under 12B6. 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 did it on an analysis that it's hard for me to distinguish from a 12B6 analysis, and then the three judge court in Evanwell, which this Court will be visiting, did the whole matter under a 12B6 analysis, which is maybe a little bit more detailed than the Second Circuit in insubstantial analysis, but really hard to tell the difference. How did you reach that conclusion? Mr. Sullivan, I guess 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 maritzy, 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 precedence. And that's a very different kind of inquiry than the typical 12B6 inquiry. Well, it's easy when it's the little green man in the extraterrestrials, but that's not the cases that have arisen and been addressed by this Court. Goosby B. 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, or in 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 precedent. McDonald doesn't foreclose this case, so it involved no extraterrestrials and no little green man, but a panel and a few more people. I don't know which may be extraterrestrial. Where are these? Some of the case law refers to aliens. Aliens. Aliens. Some of the case law seems to categorize only the only cases that would come under velvety hood, 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. And that's what you mean by extraterrestrial? Yes

. 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 12C, which in the Second Circuit, as in most other circuits, is analyzed exactly like a Rule 12B6 for you to state acclaim motion. The claim there was that the State should have used voting age population, which is interesting enough, is the issue that this Court has noted probable jurisdiction on in Evanwell, and there are three judge court in Evanwell dismissed under 12B6. 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 did it on an analysis that it's hard for me to distinguish from a 12B6 analysis, and then the three judge court in Evanwell, which this Court will be visiting, did the whole matter under a 12B6 analysis, which is maybe a little bit more detailed than the Second Circuit in insubstantial analysis, but really hard to tell the difference. How did you reach that conclusion? Mr. Sullivan, I guess 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 maritzy, 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 precedence. And that's a very different kind of inquiry than the typical 12B6 inquiry. Well, it's easy when it's the little green man in the extraterrestrials, but that's not the cases that have arisen and been addressed by this Court. Goosby B. 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, or in 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 precedent. McDonald doesn't foreclose this case, so it involved no extraterrestrials and no little green man, but a panel and a few more people. I don't know which may be extraterrestrial. Where are these? Some of the case law refers to aliens. Aliens. Aliens. Some of the case law seems to categorize only the only cases that would come under velvety hood, 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. And that's what you mean by extraterrestrial? Yes. Outlandish. Okay. 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 convened a three-judge court because they wanted to set aside Mississippi law out of 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. Are they speaking non-existent? And they said it's non-existent because it's clear what the 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 Velby Hood, which addressed when a complaint could be dismissed for lack of subject management jurisdiction because it's insubstantial. There, the claim is granted. The relief is granted. 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 insubstantial, in that case you had to have a three-judge court, I guess, when there was some constitutional issue, they said there is no constitutional issue, not because it was frivolous or for Mars, but for the opposite reason. The law was clear. The law was clear, and the single-dustry judge should have been allowed to address that in an argument. So here is, I guess you're going to think certainly he's not clearly right

. Outlandish. Okay. 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 convened a three-judge court because they wanted to set aside Mississippi law out of 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. Are they speaking non-existent? And they said it's non-existent because it's clear what the 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 Velby Hood, which addressed when a complaint could be dismissed for lack of subject management jurisdiction because it's insubstantial. There, the claim is granted. The relief is granted. 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 insubstantial, in that case you had to have a three-judge court, I guess, when there was some constitutional issue, they said there is no constitutional issue, not because it was frivolous or for Mars, but for the opposite reason. The law was clear. The law was clear, and the single-dustry judge should have been allowed to address that in an argument. So here 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 Court's prevailing rule, the Court adopts the federal rules and all district judges are bound for them. If a district judge is entitled to grant relief as under the Bayley 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 unless you can find in this statute a reason that compels the district judge not to comply with the civil, the rules of civil procedure, then the district judge isn't as, for her rights. So you say required in the statute means states acclaim? Well, I think that it could, it incorporates that understanding as much as it would incorporate the insumstance reality, because both our presumptions that courts rely on, a case is not going to proceed past a motion to dismiss, certainly not under the law, if fallen twomble, unless it satisfies rule eight. That's just a basic understanding of every district court in the land. And it seems strange that 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 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 acclaim. And what does the plaintiff do? Where does the 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 acclaim, then what happens? It goes back down and you begin all over again with a three judge court, right? Yes, Your Honor. Wow. Wow, that's, I mean, that's my comment. Yes, that's good. That's good. Yes, that's good. Yes, that's good. To rest your lazy shit. Well, but 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 Court. But that's happening. I mean, the other alternative is it's a three judge district court and then we have to take it on the merits

. And the question is, is he clearly wrong? But I would submit that under this Court's prevailing rule, the Court adopts the federal rules and all district judges are bound for them. If a district judge is entitled to grant relief as under the Bayley 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 unless you can find in this statute a reason that compels the district judge not to comply with the civil, the rules of civil procedure, then the district judge isn't as, for her rights. So you say required in the statute means states acclaim? Well, I think that it could, it incorporates that understanding as much as it would incorporate the insumstance reality, because both our presumptions that courts rely on, a case is not going to proceed past a motion to dismiss, certainly not under the law, if fallen twomble, unless it satisfies rule eight. That's just a basic understanding of every district court in the land. And it seems strange that 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 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 acclaim. And what does the plaintiff do? Where does the 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 acclaim, then what happens? It goes back down and you begin all over again with a three judge court, right? Yes, Your Honor. Wow. Wow, that's, I mean, that's my comment. Yes, that's good. That's good. Yes, that's good. Yes, that's good. To rest your lazy shit. Well, but 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 Court. But that's happening. 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, I speak for myself anyway, that we might deny certain to let the issue percolate. And now with the three judge district court, no, we have to decide it on the merits. Well, you'd had seven more direct appeals from Maryland as we cite in our brief the cases we've had in recent years that were dismissed by single judge. They would have all come here and were one state times 50, 400 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 that the court decided before 1976 and was acknowledged in this 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. We care even more than Congress, trust me. I hope you care deeply and deeply enough to affirm this reasonable interpretation. And I think it will serve the interest of this court and also all the other litigants as well. And if you'd like to ask further questions, please submit. Thank you, Council. Mr. Kimberly, you have 11 minutes left. Just a few quick points. First, a comment about Swift against Wickham. This is a case that we addressed on page 5 and 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 court

. 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, I speak for myself anyway, that we might deny certain to let the issue percolate. And now with the three judge district court, no, we have to decide it on the merits. Well, you'd had seven more direct appeals from Maryland as we cite in our brief the cases we've had in recent years that were dismissed by single judge. They would have all come here and were one state times 50, 400 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 that the court decided before 1976 and was acknowledged in this 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. We care even more than Congress, trust me. I hope you care deeply and deeply enough to affirm this reasonable interpretation. And I think it will serve the interest of this court and also all the other litigants as well. And if you'd like to ask further questions, please submit. Thank you, Council. Mr. Kimberly, you have 11 minutes left. Just a few quick points. First, a comment about Swift against Wickham. This is a case that we addressed on page 5 and 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 court. Explain why that's so. Why is that so clear that it's frivolous? Well, that's not the holding in the case. I'm sorry. I just, 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 clauses, ultimately really a statutory claim. And so it just isn't of the sort that Congress meant to go before a three-judge court as a matter of interpretation of the statute. And it doesn't matter whether that's frivolous or not. That's right. Yeah. It's a completely different holding. It has nothing whatever to do with a question whether a substantial claim has to go before the three-judge. 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 versus that happen very often. Not so far as we're aware. 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

. Explain why that's so. Why is that so clear that it's frivolous? Well, that's not the holding in the case. I'm sorry. I just, 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 clauses, ultimately really a statutory claim. And so it just isn't of the sort that Congress meant to go before a three-judge court as a matter of interpretation of the statute. And it doesn't matter whether that's frivolous or not. That's right. Yeah. It's a completely different holding. It has nothing whatever to do with a question whether a substantial claim has to go before the three-judge. 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 versus that happen very often. Not so far as we're aware. 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 provision that provides for a pellet 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 is a right of immediate appeal before this court from both grants and denials of relief in cases heard by the Court. To say otherwise, we would have to say that you get no appeal in one category of case. I, you know, I'm not sure it would comply with due process to have a judgment from which there is no appeal. Well, I think that's what you're saying, that Congress would have provided for no appeal whatever if you, if you, if the state wins, no appeal for the plaintiffs. Well, I think what is a respondent's position is if relief can be denied, it may be granted that, in order of that sort, may be entered by a single district judge and you'd get 1291 review before a court of appeals. 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. 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 that why wouldn't the 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're very, because of the opinions you point out in these, 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, in 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, we'll be the set of cases where we have no choice. And we have to take immediately whatever variations on the theme of disproportionate the Jerry Mandering-Dalada, whatever order they happen to arise, and whenever they happen to arise, because we have no choice. So I have two responses to that

. 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 provision that provides for a pellet 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 is a right of immediate appeal before this court from both grants and denials of relief in cases heard by the Court. To say otherwise, we would have to say that you get no appeal in one category of case. I, you know, I'm not sure it would comply with due process to have a judgment from which there is no appeal. Well, I think that's what you're saying, that Congress would have provided for no appeal whatever if you, if you, if the state wins, no appeal for the plaintiffs. Well, I think what is a respondent's position is if relief can be denied, it may be granted that, in order of that sort, may be entered by a single district judge and you'd get 1291 review before a court of appeals. 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. 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 that why wouldn't the 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're very, because of the opinions you point out in these, 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, in 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, we'll be the set of cases where we have no choice. And we have to take immediately whatever variations on the theme of disproportionate the Jerry Mandering-Dalada, whatever order they happen to arise, 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 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 Judge Henry Friendly and his testimony before the 92nd Congress indicated that the concern was to ensure that adherence of 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 ideologies and predilections have been decided. 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 particular answer is very responsive to the concern that Justice Breyer has pointed out, 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 on Mandatory Review, the Court generally enters a summary of firments and doesn't know probable jurisdiction and take full briefing. When the Court affirms on the basis, affirms on the without taking full argument in 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 as a decision following full briefing. Well, to go back to your, just to follow up, in recent years is it true that in reapportionment cases, the majority of the way we've handled direct appeals has been summarily? With all due respect, I think you'd probably be in a better position to answer. No, no, I'm just talking to this. I just wait. I mean, certainly the Court has been taking a large number of these cases recently. It's been two or three each term. When you say taking them, I mean, they're being presented. We have no choice. They're being taken. Right. And I'm sorry, what I mean is noting probable jurisdiction and taking full briefing and argument in two or three such cases each term

. 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 Judge Henry Friendly and his testimony before the 92nd Congress indicated that the concern was to ensure that adherence of 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 ideologies and predilections have been decided. 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 particular answer is very responsive to the concern that Justice Breyer has pointed out, 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 on Mandatory Review, the Court generally enters a summary of firments and doesn't know probable jurisdiction and take full briefing. When the Court affirms on the basis, affirms on the without taking full argument in 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 as a decision following full briefing. Well, to go back to your, just to follow up, in recent years is it true that in reapportionment cases, the majority of the way we've handled direct appeals has been summarily? With all due respect, I think you'd probably be in a better position to answer. No, no, I'm just talking to this. I just wait. I mean, certainly the Court has been taking a large number of these cases recently. It's been two or three each term. When you say taking them, I mean, they're being presented. We have no choice. They're being taken. Right. And I'm sorry, what I mean is noting probable jurisdiction and taking full briefing and argument in two or three such cases each term. But that at least as I understand how the Court operates is a question of discretion, whether it notes probable jurisdiction and takes that additional step. Any 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 remove, how that creates an insulation against the appearance of political favoritism. Well, it may be so that in those cases, 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 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 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. There are no further questions. Thank you, counsel. The case is submitted.

We'll hear argument first this morning in case 14 990 Shapiro versus McManus. Mr. Kimberly? Mr. Chief Justice and may it please the Court. Section 2284A 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 2284B lays out the procedure for calling a three-judge court when the circumstances identified in 2284 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 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 then settled practice that a complaint covered by 2284A 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 longstanding practice in the 1976 amendments to the Act, this Court's precedence 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 this Court's precedence, 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. What if it's perfectly clear that the plaintiffs are entitled to judgment? Let's say a state legislature goes back to its pre-renults 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 precedence, then no, it doesn't. But the upshot of this Court's insubstantiality doctrine is that when a claim is so obviously foreclosed, it doesn't present a bonafide controversy within the meaning of Article 3, and therefore isn't the kind of case it has to be referred to a three-judge court. How do you square that with the statutory language? Well, we think that's embodied in the words not required. In the two and three years before Congress inserted the key language in Section 2284B, this Court had said in Goosby that a three-judge district court is, quote, not required when the claim is insubstantial. Maybe Goosby was wrong. You don't think Goosby was wrong. Well, 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 think if Goosby is wrong, we still end up winning because. Oh, I know that, yeah. Well, I'm sorry. What do you, I'm sorry, why don't you? Well, I would just say I think the path of least resistance here to reversing the forecerc is not to overturn that precedent, but we certainly would be happy if the Court weren't going to do that. What do you do if your argument in a case that might go before a three-judge court is that the Court's precedence should be overruled? It's clearly foreclosed by the Court's precedence, but maybe there's a very good argument that the, those precedents are, I haven't, withstood the test of time or whatever. What happens? This Court's precedence. Yeah. This Court's precedence, I think. I understand the chief's. I am. So I think in that circumstance, at least according to the Goosby rule, is that the case would properly be dismissed for lack of jurisdiction is not stating. By the, by the, by the single judge court. By the single judge court. And, and if, if then this Court's, I have some problems with that. Suppose the, the case has been on the books from this Court for 15, 20 years, there's all sorts of academic commentary, certain circuits of question whether the reasoning is still valid. 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 take, they do need to take that position. 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, 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 insubstantiality rule is not one in the same as the 12b6 standard. I take it. A Goosby is not parallel to Rule 11. Rule 11 is a class of cases which are more frivolous, even than what Goosby would- No, I think Goosby is even more frivolous than Rule 11. What the Goosby standard provides- is that the claim must be obviously frivolous. And what the Court said in Goosby is obviously is doing work 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. And my right that Goosby thought of that as part of the jurisdictional question- That's correct. In other words, it's an application of Belvihud, which suggests that if something is so obviously frivolous, then the Court has no jurisdiction on it at all. That it's not a bona fide case in controversy within the meaning of Article III. That's exactly right. But it's a very difficult line you're drawing and I understand Belvihud, but you're saying you can't do it. He can't determine that the Three-Jose Court is not required just because the plaintiffs are wrong. But he can make that determination if they're really wrong. And your brief in the analysis, all you say, it is always, it's like a pussar. It's just a collection of adjectives that all mean frivolous and substantial. And I'm not sure it gives a great deal of guidance to a Court. Well, I think I'd say two things about that. The first, I mean, that catalog of adjectives appears in Goosby. This is a rule that has been on the books since Poreski in the 1920s. It isn't, in our view, a rule that has been causing a whole lot of trouble since 1976 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-Jose is not required, we still, I think it still would require a reversal of the Four-circuits rule and of the District Court's judgment in this case. Well, you call it a rule, but it's really not much of a rule. It's just kind of a sense that something is really bad, I guess I said earlier, as opposed to just bad. And I think that's an awfully fuzzy line to draw. A fuzzy end when you're talking about jurisdiction where you like to have very precise and clear rules. I agree entirely, and I guess what I would say on top of that is if the Court is concerned to avoid fuzzy and difficult rules, certainly is a reason not to adopt a Respondent position. Could the Respondent argue that in the light of Iqbal and Twambley, Goosby should be reconsidered and the Federal Court should have some 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 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 word shall appearing in 2284A actually means May, and that the rule required appearing in 2284B 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, and his or her discretion prefer to keep the case for him or herself. Does it depend, does your argument depend on categorization of what is frivolous to the Who-Speed language as being jurisdictional? I think if the Court were to continue that line of cases here and to hold that that is a basis for declining to convene a Three-Judge Court, yes, it depends on it being a jurisdictional question. So what happens under the current statute that calls for a Three-Judge Court on request of a party? Suppose nobody requests this Three-Judge Court would the single does proceed with the case? Well, our view in light of this Court's precedence is no. That it isn't wavable, and it's a jurisdictional statute that 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 have said indicates that when a request is filed, the District Judge would be empowered nevertheless to disregard the request and nevertheless keep the case for himself. You don't think that let's assume that that calls to be is jurisdiction. Does that mean that we must let the single judge determine it? Well, I- Why is it that the single judge must determine the jurisdictional question? Why can't that be left for the Three-Judge Court just as everything else is? 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 the 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 12-16. Perhaps the jurisdiction has to go to that Court as well. I think that's right. Yes. Perhaps. Yes. 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? Not so far as I'm aware. I mean, nothing in this Court's precedence indicate that this statute is jurisdictional. And in fact, excuse me, that it's waivable. And in fact, the Court's decision in idle wild and before that in 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 over the merits of the case either to grant or to deny relief. The wild says that very well. In what is the waiver rule been adopted by some of the circus? Not in fact, no. It's been rejected by a record that's considered at the second of the V.C. circus. But 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 the party has to request it. And normally, if a party doesn't request it, it's waived. Well, I wouldn't disagree that that is one possible way to read the statute. I think it's inconsistent with what this Court's precedent 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 where the 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? Oh, all of them. And this is- Lidigants want this? Are there any Lidigants 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 under the respondents reading of the statute is a one-way ratchet permitting only dismissals, but I gather not grants, although it's not clear where in the statute the response is. Well, it wasn't in a practice in the old days that if you didn't want the Three-Judges Court, you simply didn't ask for an objective relief. You filed a complaint for a declaratory relief, and then you didn't, you could get your One-Judge. That may be so. To be clear though, so first of all, that would just mean that the preconditions for invoking the statute toward the jurisdictional nature of the statute weren't satisfied, and that certainly is something that, but against could choose. I don't know why it's contrary to a jurisdictional status that it has to be requested. I mean, can a request be one of the conditions to confer jurisdiction? Just as a plaintiff is one of the conditions to satisfy Article 3, and thereby confer jurisdiction. That's exactly right. In 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 Court of Appeal. To 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, blocking the state enactments, and they thought that would be less 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. It was true in 1910 when the first version of the statute was enacted. It was not true by 1976 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 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 by Congress in that act provided for Three-Judge Court review. And plaintiffs liked it because you could skip over the Court of Appeals and go right to this Court and on appeal rather than socially. 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 a particularly politically sensitive and 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 interpose the Court of Appeals in the process. What's more, their reading of the statute also creates really difficult jurisdictional problems on a pellet review. If a single judge district court can grant a motion to dismiss under 12b6 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 12b6 question by the decision of the Court of Appeals. If it is bound, that's- Sotomayor, it is. Come on. 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 in B3, though, and it's an indication why respondents reading of the statute can't be the right one. Because what it means is the 12b6 question then goes to the Court of Appeals precisely in the circumstances when Congress men- Congress men only the single judge district court decide that. How do you think the Goosby rule applies to political gerrymandering claims in general? This Court has never seen one that it thought was justishable. 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 the Three-Judge Court? I think there are some that wouldn't go. A political gerrymandering claim that was predicated exclusively on a purported right to proportional representation in Congress would be wholly foreclosed by Bandimer itself. But the fact- It's so long as it favors the party 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. 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 at some point somebody's going to have to say, whether you do have a substantial claim. That's right. And our view against the backdrop of this Court's precedence is that's a sufficiently easy question that- Is it? Well, I think so. There is no decision of this Court, binding decision of this Court, holding that our claim is wholly- The- No, I think the threshold question is what is the controlling opinion of the Veeeth? There's a plurality opinion that courts- The lower courts have all generally agreed that it's just as candidates, concurrence and Veeeth that controls. And it's just as candidates, concurrence and Veeeth 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 remain with instructions 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. There are no further questions over as there are- I think- None of the things- If you're not inclined to go that far, you want to brief what question before the Well, 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 12b6. I don't think it necessarily follows. So you'd want to brief it under Gooseby or something like that? Yes, that's right. Under the proper and substantiality standard. Now, as I say, I think that issue has been briefed before this Court and it's a sufficiently easy question to answer. Oh, I see. That is something this Court can reach, but if it's not so inclined, then we'll do so before the single judge. Thank you. Thank you, Council. Mr. 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 in- As part of that, pairing down of the Three-Judges 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 the complaint that on its face fails to satisfy Rule 8 and Rule 12b6 as required in all civil actions. I'm sorry. May I go back to something that just said we could? I thought that the word required was in the statute, wasn't introduced in 76. It was there before. Well, required to be heard by Three-Judges Court. But it wasn't for an authorization for a single judge in the prior statute upon the filing of the request for injunct of relief. The Three-Judges 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. On what basis are, it sounds to me, that you're giving a meaning to not require that was different to the meaning we gave to a pre-1976. Am I correct? I don't think that's necessarily the case. I think not required meant that it didn't have a set meaning as plaintiffs. I, he took out the adjective of descriptors from our case law in substantial, wholly in substantial, frivolous, obviously or essentially frivolous. I mean, that's very different than a 12b3 motion. Yes, Justice Sotomayor. 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. In those cases are Bailey and the Hagen's versus Levine case cited by petitioners. There, Hagen's versus Levine, there was no question there was a substantial equal protection claim. But 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 rendered unnecessary to address the protection clause. So the idea that there was this set understanding that any time there's a substantial claim, its off limits to a single-district judge is simply not borne out by this Court's pre-1976 precedent. So there is more 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 the Court. Well, they want to raise about as important a question as you can imagine. They want to say reading beef that the State Legislatures are forbidden to draw district boundaries the way that has been done here. I take it, that's their basic claim. And you can write 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 kinds of cases generally, were 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. 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. Yes, swift and complete. So that the Court's concern 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 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 Court was reading the statute in Congress knew this, and on page five of 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 they said, in swift and company versus, welcome, at page 126, not in the most embracing terms, but in restrictive, in a restrictive way, because of the important concerns of judicial administration, their word, state, but also to best serve the historical purpose which is to protect states from the in-provening injunction by a single judge. Well, it's just a little bit to grade from that, and Congress has, because, as Congress said, you also get a three-judge Court if you're attacking a federal statute, right? It started out with the concern about enjoying state statutes, but if you were trying to enjoy a federal statute, you would also get a three-judge Court, right? And there was no State Protective Interest involved in that. That was probably to protect an analogous federal interest in having its laws not improbantly enjoined that statute is no longer there, as you know. But that obviously wouldn't have had the same State's sovereignty concerns, but 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, and I think it's 1976, is that right? Yes. But now you're suggesting that you're not relying on that, that you're saying that before that, we viewed as acceptable a one-judge Court dismissing a case. Is that now what you're saying? With historic practice favors you, as opposed to that the 1976 amendments favor you? I think the important thing is the amendments that we pointed out in our brief are were significant changes in the structure and meaning of the statute. But I was responding to Petitioner's 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 order for you. It's a winner for you if those prior cases say what you say they say. I hope so, Your Honor, and I hope you remember that. Well, it should have been in your brief. I mean, you should have made that point in your brief. Well, I'm trying to provide value now in addition to what we had in the brief. For my edification, I know Bailey is one. What are the other ones you're relying on? Well, in Swift versus 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 or 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 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 in 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 was spoken to by the Assistant U.S. Attorney General Robert Dixon, 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 it was 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 Petitionary Insist-on, that the insubstantiality rule is not a merit-based test, it's 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 tests that Justice Ginsburg laid out for the Court in our ball of what's jurisdictional or what is not. And the idea that there's a clear division between insubstantiality and failure to state acclaim is not borne out, and in one of the cases cited by the Petitionary Insider in their brief at page 23, it calls to be Patterson, a 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 for close 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 12C, which in the Second Circuit, as in most other circuits, is analyzed exactly like a Rule 12B6 for you to state acclaim motion. The claim there was that the State should have used voting age population, which is interesting enough, is the issue that this Court has noted probable jurisdiction on in Evanwell, and there are three judge court in Evanwell dismissed under 12B6. 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 did it on an analysis that it's hard for me to distinguish from a 12B6 analysis, and then the three judge court in Evanwell, which this Court will be visiting, did the whole matter under a 12B6 analysis, which is maybe a little bit more detailed than the Second Circuit in insubstantial analysis, but really hard to tell the difference. How did you reach that conclusion? Mr. Sullivan, I guess 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 maritzy, 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 precedence. And that's a very different kind of inquiry than the typical 12B6 inquiry. Well, it's easy when it's the little green man in the extraterrestrials, but that's not the cases that have arisen and been addressed by this Court. Goosby B. 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, or in 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 precedent. McDonald doesn't foreclose this case, so it involved no extraterrestrials and no little green man, but a panel and a few more people. I don't know which may be extraterrestrial. Where are these? Some of the case law refers to aliens. Aliens. Aliens. Some of the case law seems to categorize only the only cases that would come under velvety hood, 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. And that's what you mean by extraterrestrial? Yes. Outlandish. Okay. 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 convened a three-judge court because they wanted to set aside Mississippi law out of 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. Are they speaking non-existent? And they said it's non-existent because it's clear what the 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 Velby Hood, which addressed when a complaint could be dismissed for lack of subject management jurisdiction because it's insubstantial. There, the claim is granted. The relief is granted. 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 insubstantial, in that case you had to have a three-judge court, I guess, when there was some constitutional issue, they said there is no constitutional issue, not because it was frivolous or for Mars, but for the opposite reason. The law was clear. The law was clear, and the single-dustry judge should have been allowed to address that in an argument. So here 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 Court's prevailing rule, the Court adopts the federal rules and all district judges are bound for them. If a district judge is entitled to grant relief as under the Bayley 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 unless you can find in this statute a reason that compels the district judge not to comply with the civil, the rules of civil procedure, then the district judge isn't as, for her rights. So you say required in the statute means states acclaim? Well, I think that it could, it incorporates that understanding as much as it would incorporate the insumstance reality, because both our presumptions that courts rely on, a case is not going to proceed past a motion to dismiss, certainly not under the law, if fallen twomble, unless it satisfies rule eight. That's just a basic understanding of every district court in the land. And it seems strange that 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 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 acclaim. And what does the plaintiff do? Where does the 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 acclaim, then what happens? It goes back down and you begin all over again with a three judge court, right? Yes, Your Honor. Wow. Wow, that's, I mean, that's my comment. Yes, that's good. That's good. Yes, that's good. Yes, that's good. To rest your lazy shit. Well, but 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 Court. But that's happening. 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, I speak for myself anyway, that we might deny certain to let the issue percolate. And now with the three judge district court, no, we have to decide it on the merits. Well, you'd had seven more direct appeals from Maryland as we cite in our brief the cases we've had in recent years that were dismissed by single judge. They would have all come here and were one state times 50, 400 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 that the court decided before 1976 and was acknowledged in this 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. We care even more than Congress, trust me. I hope you care deeply and deeply enough to affirm this reasonable interpretation. And I think it will serve the interest of this court and also all the other litigants as well. And if you'd like to ask further questions, please submit. Thank you, Council. Mr. Kimberly, you have 11 minutes left. Just a few quick points. First, a comment about Swift against Wickham. This is a case that we addressed on page 5 and 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 court. Explain why that's so. Why is that so clear that it's frivolous? Well, that's not the holding in the case. I'm sorry. I just, 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 clauses, ultimately really a statutory claim. And so it just isn't of the sort that Congress meant to go before a three-judge court as a matter of interpretation of the statute. And it doesn't matter whether that's frivolous or not. That's right. Yeah. It's a completely different holding. It has nothing whatever to do with a question whether a substantial claim has to go before the three-judge. 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 versus that happen very often. Not so far as we're aware. 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 provision that provides for a pellet 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 is a right of immediate appeal before this court from both grants and denials of relief in cases heard by the Court. To say otherwise, we would have to say that you get no appeal in one category of case. I, you know, I'm not sure it would comply with due process to have a judgment from which there is no appeal. Well, I think that's what you're saying, that Congress would have provided for no appeal whatever if you, if you, if the state wins, no appeal for the plaintiffs. Well, I think what is a respondent's position is if relief can be denied, it may be granted that, in order of that sort, may be entered by a single district judge and you'd get 1291 review before a court of appeals. 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. 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 that why wouldn't the 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're very, because of the opinions you point out in these, 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, in 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, we'll be the set of cases where we have no choice. And we have to take immediately whatever variations on the theme of disproportionate the Jerry Mandering-Dalada, whatever order they happen to arise, 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 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 Judge Henry Friendly and his testimony before the 92nd Congress indicated that the concern was to ensure that adherence of 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 ideologies and predilections have been decided. 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 particular answer is very responsive to the concern that Justice Breyer has pointed out, 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 on Mandatory Review, the Court generally enters a summary of firments and doesn't know probable jurisdiction and take full briefing. When the Court affirms on the basis, affirms on the without taking full argument in 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 as a decision following full briefing. Well, to go back to your, just to follow up, in recent years is it true that in reapportionment cases, the majority of the way we've handled direct appeals has been summarily? With all due respect, I think you'd probably be in a better position to answer. No, no, I'm just talking to this. I just wait. I mean, certainly the Court has been taking a large number of these cases recently. It's been two or three each term. When you say taking them, I mean, they're being presented. We have no choice. They're being taken. Right. And I'm sorry, what I mean is noting probable jurisdiction and taking full briefing and argument in two or three such cases each term. But that at least as I understand how the Court operates is a question of discretion, whether it notes probable jurisdiction and takes that additional step. Any 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 remove, how that creates an insulation against the appearance of political favoritism. Well, it may be so that in those cases, 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 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 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. There are no further questions. Thank you, counsel. The case is submitted