As I write this, Zach Scruggs’s oral argument is finishing up in the en banc courtroom at the Fifth Circuit Court of Appeals in New Orleans, before a panel of Judges Jolly, Higgenbotham, and Dennis.
The Clarion Ledger states that the Daily Journal reported that ”some court-watchers say the Fifth Circuit of Appeals is interested in the appeals case because ‘so few Skilling appeals have come their way.’”
This suggests powers of divination about an invisible process– what judges are thinking before they opine– that stretch pretty far. Count the assertions:
- “the Fifth Circuit… is interested… in the case…” Interested? What shows their interest? That they set oral argument? That they are processing the appeal like other appeals are processed? Or do these court watchers claim inside information?
- “because so few Skilling appeals…” That’s several more– that this is a case about Skilling, something even Zach Scruggs’s lawyers had moved beyond by the time the district court proceedings were completed, and that the Fifth Circuit is somehow anxious to revisit Skilling, even though the court already revisited Skilling when it came back from the Supreme Court on remand, that there have been “so few” such appeals, and that few such appeals might inspire interest in case raising the issue.
More about the oral argument later…