The Supreme Court released the results of its March 18 status conference in the Madden v. Midland case. The Court determined that it would like to see a brief from the U.S. Solicitor General (SG). The SG is the official representative of the U.S. Government before the Supreme Court. He reports to the Attorney General and is part of the Executive Branch. I believe this decision has three main consequences:
- It's not a "No"—With this latest decision, I believe the Court is inching closer to accepting the case for review. It had an opportunity to reject the petition and let the Second Circuit's decision stand. But instead it appears the amicus briefs and industry hubbub have had the effect of drawing attention to the importance of the case.
- The SG will likely not have an organic stance on the case. Instead, I believe the office of the SG will solicit input from the principal bank regulators to get a sense of whether the "valid when made" preemption principle (i) is a legitimate mechanic indeed having a nearly 200-year history, and (ii) would have a fundamental disruptive impact if the Second Circuit's decision, which did not extend preemption under the National Bank Act to nonbanks, were allowed to stand. Agencies to be consulted likely include the Office of Comptroller of the Currency, the Federal Reserve and the Department of the Treasury.
- The requirements and timing of the SG brief likely push this case to consideration during the fall 2016 term. The SG's brief would need to be filed, certiorari petition granted following another conference, briefs filed by the parties, oral argument scheduled and done, and the Court's opinion written all by the end of the Court's current term in June. This is light speed for SCOTUS and makes it unlikely that the case will be heard this term. This also opens the possibility that the President's nominee to replace the vacancy created by the death of Justice Antonin Scalia, Judge Merrick Garland, will have an impact in the decision to hear the case and, if accepted, the case's ultimate outcome. Of course with the Senate Republicans promising not to hold hearings or a vote on Judge Garland, he may not be able to play any role at all.