We called it. What probably will be one of many upsets this Supreme Court term has happened: the writ of certiorari for Madigan v. Levin was dismissed as improvidently granted.
Madigan v. Levin -- Background
Harvey Levin was an Illinois Assistant Attorney General who, after he was fired and replaced by a younger, female attorney, sued Illinois, the Illinois Office of the Attorney General, and several lawyers in their individual capacity. He claimed violations of the Age Discrimination in Employment Act ("ADEA") and the Equal Protection Claus via 42 U.S.C. § 1983.
The district court denied the individual attorneys qualified immunity because the ADEA was not the only remedy for age discrimination claims. On interlocutory appeal, the Seventh Circuit departed from four other circuits, and held that the ADEA did not preempt § 1983 claims.
Madigan v. Levin -- Amicus Brief
While the parties were busy filing briefs in support of their arguments, a group of law professors who "specialize in the arcane field of court procedure" filed an amicus brief arguing that the Seventh Circuit lacked jurisdiction to decide the issue.
The brief also argued that although the Seventh Circuit's lack of jurisdiction did not bar Supreme Court review, the Court should decline to hear the case because "compelling reasons of prudence, practice, and policy all favor vacating the decision below and returning this case to the district court, rather than rewarding the Court of Appeals' jurisdictional bootstrapping."
Madigan v. Levin -- Oral Arguments
The problems noted in the Law Professors' amicus brief became clear at oral arguments when Justice Ginsburg opened with the question:
Mr. Scodro, there's a preliminary question before we get to the question you presented, and that is: What authority did the Seventh Circuit have to deal with the question under the Age Discrimination Act? I mean, it was -- it went to the Seventh Circuit on interlocutory review.
From there, most of the oral arguments revolved around whether the Court even had jurisdiction, and ended with a thorough scolding by Justice Scalia; he stated:
we don't like to dismiss a case as improvidently granted, and ... only when the -- when the case is before us, counsel suddenly finds all sorts of reasons why we shouldn't have taken it in the first place. You should have told us that before we took it.
This case highlights how easy it is to get caught up in the merits of the issue. No matter how interesting the legal issues are, attorneys (and courts of appeals) should always be sure to address the jurisdictional issues. Otherwise, you run the risk of getting a patented Scalia scold.