Butler - Did a very nice job repping the MS bar. m77 Jackson throwing some shade at CASA.

Robertson - Even harder for gov to try to support P without creating habeas vulnerabilities. m48 Alito: give me a simple summary of what the rule should be. [Robertson gives a long answer] Alito: that’s pretty complicated but thank you.

Ho - Tough to narrow Heck when the language is so broad, but good effort. m17 reference to Oldham always kinda interesting when your spouse is his colleague & competitor for the next SCOTUS seat.

Suri, earlier: ultra vires is an option m34 Kavanaugh: ultra vires is impossible though. Suri: yes, exactly! m58 Iyer defending lack of jurisdiction despite near 100% chill Barrett: really? Gorsuch [interjection] Kagan: Could I just get an answer to my question?

m82 Gorsuch: “You had a brief from some IP lawyers that say that you're wrong” (disclosure: I’m a signatory to that brief) “Well, you had another IP brief that said I’m right.” (I didn’t sign that one!) m88 “I don’t want to speak against...well, my other clients...”

m79 He tried to pull out the stops with tiny references to secondary liability in Title 17, as if that meant indirect infringement was a part of the Copyright Act. It was pretty weak sauce, but perhaps the best he could do.

The Court doesn’t want to expand liability for the most general tier of services, like an ISP, in the absence of Congress drafting secondary liability into the Copyright Act. Clement couldn’t work his way out of that box.

Clement - he's the best out there, but this was a relatively weak argument for him, in part because it’s a relatively weak case. Much of the argument was spent framing how he would lose.

Stuart - m55 nice job pulling from the reply brief to take the teeth out of the Henry case.

m30 Justice Barrett keys-in on the most sympathetic fact pattern, child trafficking, and Rosenkranz sticks with the plan. Only incentives to take care remained as a concern by the time he was done.

Rosenkranz - kept the case very simple, such that the bad facts the jury relied upon didn’t matter - secondary liability for an ISP is Grokster inducement or “let me help you download that illegal thing” affirmative conduct. Knowledge is irrelevant, safe harbor is irrelevant.

O’Neil’s step back into the deep history was helpful to Ps, but not enough. Also funny moment in Feigin’s long, expert. savvy argument(s) - m52 “Sorry Justice Kavanaugh, that point was not important enough to be worth interrupting you for.”

No disrespect for compassionate release advocates or habeas skeptics, but I’m not entirely sure why 3 hours and 2 docket spots of SCOTUS’s 50-or-less cases should go to this. Especially when the odds of 3582 blowing a hole in 2255 seem so low.

m45 Joshi “The Court has a pretty good handle on the issues” is a funny way to start a SG arg, and indeed gets a laugh.

A very, very discreet example of cross-administration consistency - both Trump and Biden decided that a narrow collateral order doctrine, and more appeals in the zone Congress controls, 1292, is better than “standing with” contractors, ICE or otherwise. Guts P’s case.

Notables: m13 Gorsuch annoyed by Jackson interruption as he’s trying to corner Tripp on notice. m42 Barrett putting a lot of pressure on contract = notice theory of P. If only judges in privacy cases were so skeptical of contractual notice!

For a big case the oral advocacy was just ok. Tripp‘s arguments were losing steam by the time Barrett starting dropping the hammer, and Baird took a ton of punches admirably, but it wasn’t a fun SG arg. I didn’t feel Aguiñaga fully capitalized on the advantage on R’s turn.