@briandowning.bsky.social
Assistant professor of law at @olemiss.bsky.social this fall. Using this to rate SCOTUS oral args. Rating guide: https://briandowning.medium.com/notes-on-rating-supreme-court-oral-advocacy-0859f8952930. Former Google lawyer/eng.
Postal Service v Konan
Civ Pro: Immunity
Liu (P SG) - Clarity (4), Mastery (3), Adaptivity (2), Interplay (2)
Anand (R) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (3)
Miscarriage of postage not high stakes, but good advocates make it fun.
youtu.be/sMQBvLnF8dI?...
Talent - Just ok, but hard to go after Clement and add anything.
Notz - I did not know what her position was by the end. m84 Kavanaugh: “You’re walking away from your brief, your choice.” Kagan: “Yes you are.” Ouch.
m34 “If you want me to say direct object, I’ll say it” Kagan: “that might help you with some people, but not others.” m37 Barrett: “There was an excellent attorney in TransUnion” (Clement)
11.10.2025 04:35 — 👍 0 🔁 0 💬 1 📌 0Clement: It’s Clement, so you get a masterclass. This was one of his less effective arguments by his standards…but he still scores near-perfect. m25 “I stand in lock-shoulder with the Socialist Workers Party” Sotomayor “strange bedfellows” “I’m happy to have those bedfellows.”
11.10.2025 04:35 — 👍 0 🔁 0 💬 1 📌 0
Bost v Ill
Con Law: Standing
Clement (P) Clarity (4), Mastery (5), Adaptivity (5), Interplay (5)
Talent (SG, P) Clarity (2), Mastery (2), Adaptivity (1), Interplay (1)
Notz (R, Ill SG) Clarity (1), Mastery (2), Adaptivity (1), Interplay (1)
youtu.be/saBKhFU6IkI?...
McCloud - Back after tough assignment in Barnes v Felix, the “young guns” arg last term. Gets another tough task and does a very good job in a brief argument. m58 “I don’t have a dog in that fight” Gorsuch: “you put the dog in the fight, counsel” “Ok, let me defend the dog.”
11.10.2025 04:32 — 👍 0 🔁 0 💬 0 📌 0Brown - Funny moments: m40 Gorsuch - you know exactly what I’m going to ask (m20 redux) 42m “If you go back to original principles of the double jeopardy clause…” Gorsuch: “you may be shocked to hear I’m interested in that.” “I can’t say I’m surprised.”
11.10.2025 04:32 — 👍 0 🔁 0 💬 1 📌 0Larsen - Excellent argument. m20 back and forth with Gorsuch shows great command of crim/double jeopardy history.
11.10.2025 04:32 — 👍 0 🔁 0 💬 1 📌 0
Barrett v US
Crim: 5th Am
Larsen (P) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (2)
Brown (SG, P) - Clarity (3), Mastery (4), Adaptivity (2), Interplay (3)
McCloud (Crt Amicus R) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (2)
youtu.be/N2_1E0J5Ods?...
Stevenson: Leaned on the medical practice standards heavily, but potentially lost Kagan’s vote on viewpoint answers. That said, the conservative justices haven’t been particularly interested in bending a bit to gain Kagan’s vote when they already have a majority (eg Mahmoud).
11.10.2025 04:29 — 👍 0 🔁 0 💬 0 📌 0Mooppan: A bit more aggro that one expects from the SG, but held serve on the P advantage here.
11.10.2025 04:29 — 👍 0 🔁 0 💬 1 📌 0Campbell: Stayed on-message about alternative laws where Dem-leaning speech banned; kept arguments clear and succinct throughout without inflaming the liberal justices.
11.10.2025 04:29 — 👍 0 🔁 0 💬 1 📌 0
Chiles v Salazar
Con Law: 1st Am
Campbell (P) Clarity (3), Mastery (3), Adaptivity (2), Interplay (1)
Mooppan (SG P) Clarity (3), Mastery (2), Adaptivity (1), Interplay (1)
Stevenson (R CO SG) Clarity (2), Mastery (2), Adaptivity (1), Interplay (1)
youtu.be/TnNJkug34vY?...
My newest published paper is out! It's about TikTok. It's also about the constitutionality of U.S. data privacy regulation. I don't know which topic is more popular - could someone with a teen ask?
If you're interested in either, download it below.
papers.ssrn.com/sol3/papers....
Barber (SG, R) - clear rule in briefs adapted live to “just do what the judge did here” and what Texas wants in m70, giving Sotomayor’s an “ah ha” path to a win. Seems to be some SCOTUS support for “trust the lower court judges to tailor around the 6th Am” and walk away.
08.10.2025 03:41 — 👍 0 🔁 0 💬 0 📌 0
Berk v Choy
Civ Pro: Pleading
Tutt (P) Clarity (3), Mastery (3), Adaptivity (2), Interplay (1)
Yarger (R) Clarity (3), Mastery (3), Adaptivity (1), Interplay (1) m35 Kagan: R’s position “is, like, what the entire Federal Rules are designed to prevent”
youtu.be/yV1_TYEoxIA?...
Warthen (R) - Apparently injured shortly before argument, but did a nice job. Seems to be the local DA & kept the case all the way to SCOTUS? 60m: lines of what can be said to client blur. R trying to give flexibility for discussions, but puts attorneys in a very weird spot.
07.10.2025 18:16 — 👍 0 🔁 0 💬 1 📌 0Banner (P) - Lots of halting answers. m22 not sure what privilege rules are; Alito notes case may turn on answer.
07.10.2025 18:16 — 👍 0 🔁 0 💬 1 📌 0
Villarreal v TX
Crim: 6A
Banner (P) Clarity (2), Mastery (2), Adaptivity (2), Interplay (2)
Warthen (R TX) Clarity (4), Mastery (3), Adaptivity (3), Interplay (1)
Kevin J. Barber (SG, R) Clarity (3), Mastery (3), Adaptivity (3), Interplay (1)
youtu.be/9qfE2vojoME?...
A thing I wrote about chatbot liability got picked up by my old local paper. Hopefully after reading it you will feel post-intelligenced (if that’s a good thing).
Btw, SCOTUS oral arg season starting soon! Will post more then.
www.seattlepi.com/news/article...
But our skies are famously blue! No wait that’s Alabama
23.08.2025 02:59 — 👍 1 🔁 0 💬 0 📌 0
The students will assume I failed to show up on the first day if they are looking for this person. When you've had the same job since before smartphones were a thing, you don't have a lot of professional pictures documenting the aging process. Which is a blessing.
law.olemiss.edu/um-law-welco...
During the SCOTUS summer break, let me shamelessly promote my paper on AI's impact on the increased discoverability of private conversations, particularly in corporations with video calling. If you're on a lit hold, you might want to check it out: papers.ssrn.com/sol3/papers....
23.07.2025 19:21 — 👍 0 🔁 0 💬 0 📌 0The smart folks were right (unlike me) - Respondents got to 4-4, which is about as much as they could hope for. Congrats to Garre, as that was really pulling a rabbit out of a hat. But likely a loss if court composition holds and they take another case. www.supremecourt.gov/opinions/24p...
22.05.2025 15:28 — 👍 0 🔁 0 💬 0 📌 0Also classmate Sam Bray mentions galore, including by Corkran, layering UChicago Law ‘05 on very thick. No complaints here!
Overall, my guess is they craft a rule narrowing, but allowing, universal injunctions. 14th Am is a bonus-some signs they may go there & Trump loses if so.
Feigenbaum - in contrast, had a deferential, “let’s get to the right answer” tone and a command of the circumstances that may have turned the case into a win.
Corkran - NJ set the stage well, so cleaned up some issues (as the 2d R often does) & got out. Note: also a classmate!
Yet I do have some sympathy for Sauer’s tough spot on following Circuit cases - the 1989 agency nonacquiescence article by Estreichert & Revesz details problems: openyls.law.yale.edu/bitstream/ha... In short, there are categories where it is not reasonable for agencies to regionalize the law.
15.05.2025 21:13 — 👍 0 🔁 0 💬 1 📌 0Sauer - like in Drummond, underperformed as a SG. It wasn’t bad, but SGs tend to take wobbly cases and use their skill to turn them into winners. I think Sauer is more likely to have done the opposite. m20 Kagan “assume on the merits you are wrong.” There was a lot of that.
15.05.2025 21:13 — 👍 0 🔁 0 💬 1 📌 0
Trump v CASA
Civ Pro: Universal Injunctions
Sauer (SG Applicants) - Clarity 2 Mastery 3 Adaptability 2 Interplay 1
Feigenbaum (St SG R) - Clarity 4 Mastery 4 Adaptability 4 Interplay 4
Corkran (R) - Clarity 3 Mastery 3 Adaptability 2 Interplay 2
www.youtube.com/watch?v=jggn...
m86 Gorsuch: I’m delighted they’re still teaching the problems of dangling modifiers in OK schools.
m100 Alito callback to Mahmoud LGBTQ books case a few args ago, trying to show diversity of school approaches (or troll a bit).
