Niemeyer, Ripple, Easterbrook, Posner, Supreme Court vindication, and costs of cert denial in lower court cases that would have come out differently under Town of Greece

One occasion of on-the-job satisfaction for an intermediate federal appellate judge must certainly be when one's circuit-level dissent is vindicated by a Supreme Court majority. Among the judges whose lower-court dissents were vindicated by the Town of Greece ruling are two whose decisions I have long followed: Judge Paul Niemeyer of the Fourth Circuit (for whom I clerked from 2002-2003) and Judge Richard Posner of the Seventh Circuit (about whom I recently co-authored a paper with Marc DeGirolami). Also vindicated are two other Seventh Circuit judges whose opinions are always worth reading: Judge Kenneth Ripple and Judge Frank Easterbrook.

Justice Kennedy's opinion for the Court in Town of Greece adopts a very similar approach to that advocated by Judge Niemeyer in his dissent in the Fourth Circuit legislative prayer case of Joyner v. Forsyth County. As I wrote in an earlier post on Joyner v. Forsyth County, the Fourth Circuit's decision seemed to be "a strong candidate for Supreme Court review." At the time, there was a circuit split between the Fourth and Eleventh Circuits, but the Second Circuit had not yet decided Town of Greece. The Supreme Court denied certiorari in Joyner v. Forsyth County in January 2012. This earlier cert denial takes nothing away from Judge Niemeyer's jurisprudential vindication. But it also meant that Forsyth County finally lost its case. And that meant payment of $248,000 in costs and attorneys' fees. As it turns out, the County never should have had to pay that money. (Or, more precisely, the ACLU and others never should have received it; the County's share was covered by a private consortium.)

While Town of Greece came too late for Forsyth County, the Elmbrook School District is not as unfortunate. At present, the District is on the losing end of an en banc Seventh Circuit decision, from which Judge Ripple, Judge Easterbook, and Judge Posner dissented. The case of Elmbrook School District v. Doe does not completely overlap with Town of Greece. But the decision would have, and still should, come out differently in light of Town of Greece. The issues presented by Elmbrook School District and Joyner v. Forsyth County (presenting a doctrinally-on-all-fours match with Town of Greece) are sufficiently close that Marc DeGirolami and I used the two cases as a comparison in our evaluation of Judge Wilkinson and Judge Posner in paired sets of cases.

The cert petition in Elmbrook School District remains pending. And counsel for petitioners has filed a supplemental brief arguing that Town of Greece strengthens the case for a grant. Presumably the Court will act upon the petition by either GVR'ing or granting and setting for argument at the next opportunity.