Earlier this week, in the case Carlsbad Technology, Inc. v. HIF Bio, Inc., (07-1437.pdf) the Supreme Court decided something boring about the right to appeal district court remand orders of state law claims in a removed case where all federal claims had been dismissed and blah blah blah… not the point of this post. (Though, if I may make one point about the case itself, SCOTUS has cut back its workload to roughly 75 cases a year and they wasted one slot to hold "you may file an appeal that you can not possibly win" in this case.)
The point of this post is that Justice Thomas wrote the majority opinion and held that the case was clearly covered by the 1976 case Thermtron Products, Inc. v. Hermansdorfer and its progeny. As is typical of Thomas and his precedent-hatin' ways, he included a footnote in which he said "We do not revisit today whether Thermtron was correctly decided. Neither the brief for petitioner nor the brief for respondents explicitly asked the Court to do so here…" Unremarkable so far, until you get to the concurrences.
Scalia is on board with what Thomas implies and is ready to reconsider Thermtron. Breyer is vexed by the inconsistent jurisprudence and wants Congress to wake up and amend the law to bring some order to the statute. And Stevens decides to make fun of Thomas:
If we were writing on a clean slate, I would adhere to the statute’s text. But … stare decisis compels the conclusion that the District Court’s remand order is reviewable notwithstanding §1447(d)’s unambiguous contrary command. The Court’s adherence to precedent in this case represents a welcome departure from its some-times single-minded focus on literal text. Accordingly, I join the Court’s opinion.
Take that, Clarence!
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