Berg: Injunction Dismissed, Case "Alive and Well"

Yesterday's update on the U.S. Supreme Court docket for Philip Berg's case against Barack Obama and the DNC caused confusion, due to the entry of what looks like an outright denial below the entry notating that the case has been distributed to conference.

Even the Atlanta Journal-Constitution was caught up in the confusion, writing yesterday afternoon that Justice Anthony Kennedy had in fact dismissed Berg's action. From the AJC:

WASHINGTON — Supreme Court Justice Anthony Kennedy has rejected two more efforts to get the court to consider whether President-elect Barack Obama is eligible to take office.

Kennedy on Wednesday denied without comment an appeal by Philip J. Berg, a Pennsylvania attorney, that claims Obama is either a citizen of Kenya or Indonesia and is ineligible to be president because he is not a "natural-born citizen" of the U.S. as required by the Constitution. Another appeal from California, based on Berg's claims, also was denied.

Upon seeing the docket yesterday after receiving news of the distribution for conference, my first instinct was that one of Berg's attempts to enjoin the presidential electors from voting had been denied by Justice Kennedy, and that his petition for certiorari went on as planned. I was right.

"Justice Kennedy dismissed our injunction yesterday," Berg told America's Right this afternoon. "Our case is alive and well."

Alive? Yes. Whether it could be considered "well" is to be determined, as the Supreme Court has already denied a pair of eligibility-related cases which reached full conference, like Berg's action will do on Friday, January 9, 2009.

There are, however, a few differences between those cases and the one filed by Philip Berg. First, the previous two actions made inroads at the Supreme Court through an application for an emergency stay, and the hope that the actions would be heard turned first on the Court's consideration of the stay as a petition for writ of certiorari, then the agreement by four Justices to hear the case on its merits. This was how Bush v. Gore reached the Supreme Court in 2000. Berg's case, however, was filed in the more typical way, and while application after injunction after application has been denied, it is a petition for writ of certiorari which will be discussed on January 9. Second, the two previous cases turned on the definition of the Natural Born Citizen Clause in the U.S. Constitution, while Berg's action is more rooted in speculation that Obama was born abroad or, if he was born in the States, he lost his citizenship during childhood. Furthermore, both of the previous cases were denied prior to the electors having cast their votes; while Berg's case will be discussed at conference before Obama takes office, the electors have already rendered him the official president-elect. Whether any of these differences makes a difference is yet to be determined and, as I have written before, highly unlikely.

A little bit more than a week ago, I included some likely scenarios for the future of Berg's action, the first such case challenging Obama's constitutional eligibility to be president. Just for clarification, I want to reiterate those possibilities here, with applicable changes having been made now that the electors have cast their votes:

• (1) Berg’s certiorari petition could be denied, without comment or dissent (a dissent by one or more Justices to a denial of a certiorari petition, while rare, is not unprecedented). This would end Berg’s case, but likely not jurisdictionally end the others;

• (2) Berg’s certiorari petition could be granted and the matter set for oral argument following the filing of additional briefs, with the Court directing (a) that the issues be confined to arguments on Berg’s standing, or (b) that the issues of standing and, assuming standing, the merits of the case be addressed;
  

• (3) If option 2(a) occurs, at some future date, the Court could determine that Berg had standing in USDC and could vacate that decision--and naturally the Third Circuit decision as well--and remand to the U.S. District Court here in Philadelphia with instructions to proceed with “further proceedings consistent with this opinion.” At that point, as extremely unlikely as it is, who knows what would happen?

• (4) If option 2(b) occurs, the Court could actually reach the merits of Berg's case and, sometime well after Jan. 20, 2009, render a decision. Considering the nature of the Court, the most likely result under this scenario would likely be a 6-3 or, at best, a 5-4 decision against Berg holding that, because Berg failed to prove his case at the district court level, he loses. This would make the matter res judicata, at least with regard to Philip Berg and Barack Obama, and would for all practical purposes severely undermine if not foreclose all other pending and future challenges to Obama’s eligibility under the Natural Born Citizen clause. While I'm not certain that it would necessarily work, I would expect Obama's team of attorneys to argue that the stampede of other suits would be foreclosed under collateral estoppel theory.

• (5) While unlikely but certainly not unprecedented, the Court could simply wait until after Jan. 20, 2009 to do anything and then, after the inauguration, simply dismiss whatever action was then pending on the grounds of it being a "political question" and separation of powers, or on the grounds of mootness. The issue, of course, implicates neither of these excuses, but the Court could say so -- and, at that point, what other court would intercede?