Good Wednesday morning SCB readers. The justices could issue decisions in a few hours—perhaps we'll get something beyond a “DIG.” More on that below. Plus: Justice Breyer had a lot to say this week about term limits, and about the number of justices. Five + four justices heard arguments in the census case Tuesday, and the court appears starkly divided. Feedback is welcome, and thanks, always, for reading Supreme Court Brief. Contact us at [email protected] and [email protected], and follow us on Twitter at @Tonymauro and @MarciaCoyle.

Anatomy of a 'DIG'

Forty-five seconds into the Supreme Court oral argument on April 15 in the securities fraud case Emulex Corp. v. Varjabedian, there was a problem.

Latham & Watkins partner Gregory Garre had started off by telling the justices that the lower court in his case “recognized an unprecedented inferred private right to recover for negligent violations” of the Securities Exchange Act. “For two independent reasons, we would ask this Court to reverse that decision,” Garre said, touching on the main issue in the case.

Justice Ruth Bader Ginsburg pounced first, as she often does. “Mr. Garre, why should we consider that when it wasn't raised in this case until … the motion for rehearing in the court of appeals?… Everybody accepted there was a private right of action. And you are now making the non-existence of a private right your principal argument.”

Then, Ginsburg's bombshell: “As you well know, this is a court of review, not of first view. If we're going to take up that question, it shouldn't start here.”

Garre defended his stance, citing a helpful 1994 precedent known as Central Bank of Denver. But other justices piled on as the argument continued.

So it was not much of a surprise Tuesday morning when the court announced that Emulex v. Varjabedian was DIGed—Supreme Court lingo for “dismissed as improvidently granted”—the court's first such DIG this term. It's a euphemism, more or less, for ditching a case that the court decided was flawed and did not warrant resolving.

The result was foreshadowed even before the oral argument.

>> Dallas lawyer Daniel Geyser's brief on behalf of Varjabedian, an investor who sued Emulex alleging fraud in its tender offer, asserted on the very first page that the issue of the existence of a private right of action is “a splitless question that was not pressed or passed upon below because petitioners conceded the issue.”

>> An amicus brief by Ruthanne Deutsch of Deutsch Hunt in Washington on behalf of the North American Securities Administrators Association included a footnote suggesting that the court “dismiss the petition as improvidently granted given Petitioners' express concession that a private right of action exists … and the resulting absence of any judicial ruling on this point to inform this Court's review.” Deutsch on Tuesday predicted that the issue of private right to sue will “live to fight another day.”

Breyer on Term Limits, Court-Packing & More

As the Supreme Court's oral argument cycle nears its end, justices sometimes look fatigued and beleaguered, especially if they are on the dissenting end of decisions that will be handed down in the next month or so.

But Justice Stephen Breyer seemed chipper and optimistic on Monday night as he fielded questions from radio host Bill Press at the Hill Center at the Old Naval Hospital near Eastern Market in Washington. He declined to comment on recent or pending cases, but made these observations, condensed for brevity and viewable on C-SPAN: >> Term limits are OK: “I think it would be fine to have long terms. Say 18 years or something like that for a Supreme Court Justice. It would make life easier. I wouldn't have to worry about when I'm going to retire or not and that would be easier for me. And, moreover, it must be long, and the reason that it must be long is because you don't want somebody looking for his next job while he's a member of the court.”

>> Clerking for Arthur Goldberg: “I loved working for Justice Goldberg. There were only two clerks for a justice then and he would take us to lunch and we became friends. I remember we were working on a case and they were arguing about the history of the 14th Amendment. Justice Black said one thing and we said the opposite thing, and I said 'I'm going to write. [He said] what's the point? If we lost, we lost.' There's always another day. He was an optimist; you just keep going.”

>> No more justices: “I think nine is fine. The Massachusetts Supreme Judicial Court has seven. I've seen them at work and I think seven's a better number. I mean, seven is fine. Eight is fine. Nine is fine. It's hard because these are not shrinking violets, any of the members of the court. Yet, they are going to be helpful really when they produce opinions which have five or more members signing onto those opinions.” >> Still no cameras, but maybe one day: “Journalists have told me this, not all but some: 'Wait until you see the first time you're on television in a way that they depict as totally opposite to what you meant. You'll be more careful what you ask.' I don't want to be careful. Sometimes that gets me into trouble. I ask a really weird question … Eventually TV will be there because, as we know, generations will grow up and they just won't understand why it isn't there. All right? But the judges who are there now are not in that generation and so it will be a while.”

SCOTUS Headlines: What We're Reading

>> Justices, Appearing Divided, Weigh Census Citizenship Question. After an extended argument, it appeared the Supreme Court could divide along ideological lines on what is the most significant Trump policy fight to come before them since they ruled 5-4 last term to uphold the administration's immigration travel ban. [NLJ]

>> Roberts Wants to Ignore Trump's Anti-Immigrant Bias Again. “While conservative justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh seem prepared to say that Ross's decision-making was perfectly legitimate, Chief Justice John Roberts, the likely swing voter, seems inclined to take a different path. Roberts, it appears, wants to assert that the court shouldn't even consider whether Ross gave the real answer to justify his policies. Roberts wants to avoid the whole issue by insisting that the role of the court is simply to presume that Ross acted in accordance with the law.” [Bloomberg]

>> Is Obstruction an Impeachable Offense? History Says Yes. “Constitutional scholars say that similar offenses — ones involving the lawless use of official power threatening the constitutional order — are what the framers thought could justify removal from office. Does Mr. Trump's conduct, as described in the Mueller report, clear that high bar? The two most recent impeachment proceedings, against Presidents Richard M. Nixon and Bill Clinton, indicate that it could.” [NYT]

>> The Supreme Court Needs to Lift Its Cone of Silence on Oral Arguments. “That the court refused to allow same-day posting of the audio in the census case—despite a plea from the media, transparency activists and members of Congress—suggests that the justices are becoming less accessible to interested citizens.” [Los Angeles Times]

>> Can an Unconscious Suspect Consent to a Blood Draw? ”The Supreme Court generally frowns on drunk or drugged drivers. But it also believes that police usually need warrants to conduct searches. On Tuesday, the six-year-old case of Wisconsin's Gerald Mitchell presented the justices with two things they don't like, and it divided them almost down the middle.” [USA Today] Bloomberg Law has more here.

>> It's confidential: Supreme Court decision on Freedom of Information Act Hinges on One Word. “The Supreme Court spent an hour Monday debating the meaning of the word “confidential.” The result could have major implications for public access to government records. At issue is whether that word, as used in a section of the Freedom of Information Act, means anything that's intended to be kept secret, or only information that's likely to cause harm if publicized.” [USA Today]

>> How John Roberts Is Shaping the Supreme Court's Newly Savage Death Penalty Jurisprudence. “With Justice Anthony Kennedy now retired, Roberts is the new man in the middle. He isn't the most enthusiastic cheerleader for the ultimate penalty on the court—that honor belongs to the trio of Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas—and rarely flashes his cards in capital punishment cases. But his votes are shaping a newly savage jurisprudence.” [Slate]