The DOJ is asking the SC to not take cert, and leave the court of appeals' ruling in place. That ruling says that NSO does not have immunity and therefore can be sued and held liable for its actions, because it is not a foreign government.
The DOJ brief explicitly says that the NSO group cannot claim this immunity, and that the lower court ruled correctly -- so no need for SCOTUS to take the case.
For those who were curious about the legal term "certiorari" (as I was):
> "Certiorari is generally associated with the writ that the Supreme Court of the United States issues to review a lower court's judgment. A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari.
> In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari."
My sister tells a tale of a groan-inducing joke wherein folks at law school would offer a mint, and then, at the last minute, snap their hand closed and say "CERT DENIED."
I thought, when I remembered the joke, that i hadn't seen them for a while -- but I was still surprised to see, on the wiki page, that they've been off the market since 2018.
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> I’m Swedish and think of this as common knowledge…
I am Canadian and it's the first time I have heard this term. I am surprised you know about this from Sweden. I knew of the Canadian term, "leave" or "leave to appeal" though.
The US Supreme Court gets a lot of attention in Sweden. In this particular case I looked it up in 2018 when I did a bet with a friend that SCOTUS would not overturn Roe vs Wade within four years. I lost that bet, by about a month.
The Swedish just seem super up to date on Americans in general. Every one I meet apologizes for their English and then proceeds to speak immaculate English.
I think the process is widely known - but I didn't know it had a random Latin name until today. Another good reason not to add jargon for easy to understand things that are better explained in three words.
The Supreme Court basically makes their own operating rules. They could set different criteria for granting certiorari if they wanted to, regardless of the number of justices.
US civics education is horrendous. Only 30% of US students are proficient in civics standards. About half of US adults sampled couldn't even name the three branches of government; an elected US Senator said "Our government wasn’t set up for one group to have all three branches of government. … You know, the House, the Senate and the executive". A huge majority wildly misunderstand the first amendment [1].
I used to volunteer with a civics ed non-profit. Students, almost all whom had already completed their required civics curriculum, entered our program with all sorts of wildly insane misunderstandings of American governance.
> an elected US Senator said "Our government wasn’t set up for one group to have all three branches of government. … You know, the House, the Senate and the executive".
It's not how the term "branch" is commonly used. You could say it, and people would know what you meant... but then, people understood what the Senator meant in the first place.
For that matter... the Judicial branch is quite political, and is widely considered to be "had" by one particular political party. 2/3 of its members were nominated by that party, and nominations have been increasingly subjected to ideological litmus tests. (Which they must then pretend not to have until confirmed.)
Now imagine how the minds are blown when they learn that the US legislators haven’t actually legislated, which is to say actually written a bill, in living memory.
The actual process by which laws are passed resembles the schoolhouse rock version about as much as Roger Rabbit resembles criminal proceedings.
> all three branches of government. … You know, the House, the Senate and the executive
While it's objectively the case that this is not accurate, control of those three is commonly called a "trifecta" by pundits and political operatives, so that's probably the source of the confusion.
My point is that this could easily be a slip of the tongue, the kind of mistake that I could see myself making when speaking extemporaneously. But making that mistake would not mean that I didn't understand the difference between the three branches of government and the three distinct "federal electoral prizes", so to speak.
Knowing that we're talking about Tommy Tuberville, I'm obviously less inclined to offer him the benefit of the doubt, but we are still jumping to conclusions.
2007 is definitely "recent" when we're talking about the Constitution.
I think you'd find that shocking percentages of Americans don't understand any basic information. Probably not even who's the Vice President, or who's next in line of succession after the VP.
Heck, even much of the press in the US is confused about it. It is quite common for cert. denied to be reported as the Court affirming the lower court's decision that is being appealed.
All cert. denied means is that the Court decided not to hear the case. That may be because they agree with the lower court, but that is just one reason they might decide not to hear the case.
Another reason they might decide cert. is that although they think the case raises issues that they need to deal with, the particular circumstances of this particular case don't present the issue as clearly as they would like. They want to wait until a better case comes along with the issue.
Sometimes they want to wait until appeals courts in different regions have considered the issue and explored different approaches to it so more of the possible arguments on both sides have been hashed out.
The decision that the Justice department is supporting is that NSO is not immune to legal proceedings. Presumably everyone wants this to continue being the case and would agree that the Supreme Court doesn’t need to revisit this decision.
Unless there’s some hidden reason that the government doesn’t want the consequences of the Supreme Court agreeing and having additional effects…
Conspiracy folks who think the Justice department is fighting for NSO need to actually read the linked article
In a filing to the Supreme Court, NSO said it should be recognized as a foreign government agent and therefore be entitled to immunity under US law limiting lawsuits against foreign countries.
Curious, did a government step forward to agree with NSO that it should be recognized as a foreign government agent? If so, is this publicly documented, and more importantly, is it material to the case?
The second half of paragraph 2 on page 7 of the brief:
>And no foreign state has supported NSO’s claim to immunity; indeed, NSO has not even identified the states for which it claims to have acted as an agent.
their claim is that they are agents for their client states (which in none (or at least the vast majority) of the publicized cases) has been Israel. i.e. it was state sponsored espionage, where they were the state's agent (be it saudi, or any other state).
Personally, I don't see how this claim works, if a foreign govt pays someone to spy, that person still goes to jail if they get caught.
also as the justice dept came out against their claim, it would seem they dont really have much of anyone "in their pocket".
As this filing points out, NSO is not incorporated in the US. What is the purpose of the suit? How can the plantiff or the courts collect the fees? Would it just mean NSO will not operate in the US?
Yes, and entities incorporated elsewhere can have assets in the US, including bank accounts. In general companies have liability in every jurisdiction in which they operate, not just where they're incorporated.
That might be true, but at that point you're fleeing the country to avoid the justice system. As a US citizen/resident, I would be very skeptical of any instructions to do that. Even as a US bank I think legal would have to look at it to see if there is liability in transferring substantial assets out of the country.
Yes, they may well be able to sneak out at night. But that's not how legitimate businesses operate, and it might change the process and outcome in the next country where litigation appears. If NSO moves and abandons assets in the US to escape liability, what happens when similar actions are brought in Germany or the UK or wherever? Presumably plaintiffs would insist on accounts being frozen immediately given NSO's absconding from the US.
Fleeing may help owners extract maximum value from the company before it collapses, but it will not serve the purposes of continuing to operate a legitimate for-profit company.
In general, the Supreme Court is loathe to review a lower court ruling unless there was either an obvious constitutional violation or rulings from different circuits have resulted in ambiguity at the national level on how law should be interpreted. Otherwise, they defer to the lower courts because that's why we have lower courts.
That may be true if the Supreme Court had not already shown political bias, and in this case I believe the conservative majority would be more likely to allow it and rule in favor of NSO Group.
It is possible that politicians speak openly about Israeli influence but that news and media outlets have bias against reporting about complaints against Israel.
Also, as far as I am aware, Russians are somewhat less organized in their defense of their national identity and ethnic heritage. For example, I am not aware of any notable US-based anti-Russian-bias or Russian-hate-prevention organizations.
69 comments
[ 3.0 ms ] story [ 214 ms ] threadBecause NSO is appealing a decision that they do not have foreign government immunity, and DoJ is asking the Supreme Court not to take the case.
What exactly does that show?
> "Certiorari is generally associated with the writ that the Supreme Court of the United States issues to review a lower court's judgment. A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari.
> In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari."
1. https://www.law.cornell.edu/wex/certiorari#:~:text=In%20the%....
[1]: https://en.wikipedia.org/wiki/Certs
https://news.ycombinator.com/item?id=33172404 (Oct 2022)
https://news.ycombinator.com/item?id=29548716 (Dec 2021)
https://news.ycombinator.com/item?id=29285461 (Nov 2021)
https://news.ycombinator.com/item?id=26838288 (April 2021)
https://news.ycombinator.com/item?id=22154606 (Jan 2020)
https://news.ycombinator.com/item?id=21941714 (Jan 2020)
I don't want to ban you, but if you keep this up, we'll have to. If you'd please review https://news.ycombinator.com/newsguidelines.html and stick to the rules when posting here, we'd appreciate it.
I am Canadian and it's the first time I have heard this term. I am surprised you know about this from Sweden. I knew of the Canadian term, "leave" or "leave to appeal" though.
The use of “certiorari” for legal review is literally older than English, so complaining about its continued use as adding jargon is misplaced.
I used to volunteer with a civics ed non-profit. Students, almost all whom had already completed their required civics curriculum, entered our program with all sorts of wildly insane misunderstandings of American governance.
[1] https://webcache.googleusercontent.com/search?q=cache:g4DAnD...
I should stop having impostor syndrome.
Would this be more accurate? I'm not sure the judicial branch is considered political enough for "one group" to "have".
For that matter... the Judicial branch is quite political, and is widely considered to be "had" by one particular political party. 2/3 of its members were nominated by that party, and nominations have been increasingly subjected to ideological litmus tests. (Which they must then pretend not to have until confirmed.)
And 100% of them repeat the tired cliche of name-dropping "Founding Fathers" in every reddit thread.
The actual process by which laws are passed resembles the schoolhouse rock version about as much as Roger Rabbit resembles criminal proceedings.
While it's objectively the case that this is not accurate, control of those three is commonly called a "trifecta" by pundits and political operatives, so that's probably the source of the confusion.
Knowing that the judiciary is set up to be independent is pretty critical.
My point is that this could easily be a slip of the tongue, the kind of mistake that I could see myself making when speaking extemporaneously. But making that mistake would not mean that I didn't understand the difference between the three branches of government and the three distinct "federal electoral prizes", so to speak.
Knowing that we're talking about Tommy Tuberville, I'm obviously less inclined to offer him the benefit of the doubt, but we are still jumping to conclusions.
I think you'd find that shocking percentages of Americans don't understand any basic information. Probably not even who's the Vice President, or who's next in line of succession after the VP.
All cert. denied means is that the Court decided not to hear the case. That may be because they agree with the lower court, but that is just one reason they might decide not to hear the case.
Another reason they might decide cert. is that although they think the case raises issues that they need to deal with, the particular circumstances of this particular case don't present the issue as clearly as they would like. They want to wait until a better case comes along with the issue.
Sometimes they want to wait until appeals courts in different regions have considered the issue and explored different approaches to it so more of the possible arguments on both sides have been hashed out.
Source: Am American. The average joe here doesn't know very much about how the appellate legal system works, or the terms at use.
Hey, engineers can say "<foo> considered harmful" and laugh about it. It's an inside joke. Every profession has them.
Unless there’s some hidden reason that the government doesn’t want the consequences of the Supreme Court agreeing and having additional effects…
Conspiracy folks who think the Justice department is fighting for NSO need to actually read the linked article
Curious, did a government step forward to agree with NSO that it should be recognized as a foreign government agent? If so, is this publicly documented, and more importantly, is it material to the case?
The NSO is basically saying "just trust us, we represent a government or two".
>And no foreign state has supported NSO’s claim to immunity; indeed, NSO has not even identified the states for which it claims to have acted as an agent.
their claim is that they are agents for their client states (which in none (or at least the vast majority) of the publicized cases) has been Israel. i.e. it was state sponsored espionage, where they were the state's agent (be it saudi, or any other state).
Personally, I don't see how this claim works, if a foreign govt pays someone to spy, that person still goes to jail if they get caught.
also as the justice dept came out against their claim, it would seem they dont really have much of anyone "in their pocket".
Yes, they may well be able to sneak out at night. But that's not how legitimate businesses operate, and it might change the process and outcome in the next country where litigation appears. If NSO moves and abandons assets in the US to escape liability, what happens when similar actions are brought in Germany or the UK or wherever? Presumably plaintiffs would insist on accounts being frozen immediately given NSO's absconding from the US.
Fleeing may help owners extract maximum value from the company before it collapses, but it will not serve the purposes of continuing to operate a legitimate for-profit company.
Also, as far as I am aware, Russians are somewhat less organized in their defense of their national identity and ethnic heritage. For example, I am not aware of any notable US-based anti-Russian-bias or Russian-hate-prevention organizations.