jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
Nope.
What was “conceded” was “this court” has “no discretion.” This stuff is not hard to understand.
Take a look at what Moss wrote, i.e., “[p]lantiffs acknowledge” that: (1) the “result” sought in Bianchi “is contrary to Kolbe “ (2) ” there is “no discretion but to dismiss” and then (3) asserted that Kolbe “should be overturned by a court competent to do so.”* Then look at what the Judge wrote, "Plaintiff’s conceded that this Court has no discretion but to dismiss Plaintiffs’ complaint.”** It is (or should be) obvious that “this court” (the District Court) is not the 4th Circuit Court of Appeals, or the Supreme Court.
The 4th Circuit Court of Appeals is a “court competent” to overrule Kolbe, but the realistic objective is a 5 to 4 overturn in the Supreme Court.** The case is simply being postured (by a very “competent” lawyer) to avoid controllable delays.
Yea!
Regards
Jack
*https://www.courtlistener.com/docket...anchi-v-frosh/ PLAINTIFFS’ RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE
Page 1.
“Plaintiffs acknowledge that the result they seek is contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), and therefore that this Court “has ‘no discretion’ but to dismiss” Plaintiffs’ complaint. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006). Nevertheless, Plaintiffs believe that precedent should be overturned by a court competent to do so.”
** https://www.courtlistener.com/docket/18705819/28/bianchi-v-frosh/
If the lower court truly has no discretion why was Rogers argued differently?
The fact of the matter is that precedent is not inextricable as the court claims.
Based on the concession, the 3 judge panel will dismiss the case also because they are not a "competent" court either.
There is no reason for the en banc to step in because the 4th circuit just like every other court that examined the issue decided the case based on intermediate scrutiny and this case present no new arguments as to why this is wrong.
SCOTUS will reject it for the same reason.