In a certiorari petition filed earlier this week, Motorola Mobility seeks review of a Seventh Circuit antitrust ruling. In addition to its primary argument that the Seventh Circuit’s ruling is in conflict with rulings from other circuits, the petition asks the Supreme Court to grant review “to disapprove the Seventh Circuit’s non-random assignment process.” (See pp. 33-39.)
The petition, submitted by Tom Goldstein (wearing his practitioner’s hat, not his SCOTUSblog hat), complains that, in violation of the Seventh Circuit’s written rules, “Seventh Circuit judges hearing applications to permit an interlocutory review regularly assign to themselves the merits of cases they find particularly significant and interesting, rather than leaving the case to the ordinary random assignment process.” I’m pleased to have broken the news on this curious practice in these two posts of mine from last December. The petition kindly credits my posts and quotes Judge Easterbrook’s statements from one of them.
While Judge Easterbrook acknowledged that “[s]ome judges are more apt than others to prefer keeping a case,” he pointed out that “the process is the same for all judges—and all have an equal chance to keep cases for decision on the merits.” The petition argues that that formal equality enables a “deeply troubling reality”: “the Seventh Circuit has effectively given judges with particular jurisprudential interests or agendas an opportunity to thumb through the docket and assign themselves cases in which to advance those interests.”
The concerns raised by the petition are amplified by the bizarre procedural maneuverings that Judge Richard Posner (the presiding judge on the initial motions panel) resorted to. (See pp. 8-10.) As the petition puts it, “the panel that ultimately decided [Motorola’s] case literally prejudged the outcome by issuing an opinion before any briefing or argument on the appeal, giving rise to the reasonable conclusion that the ordinary appellate process it later grudgingly permitted had no prospect of actually affecting the outcome.” (Emphasis in original.)