As was widely reported in the media, the hering before Judge Vinson on the United States' motion to dismiss took place on September 14. (Unfortunately, the transcript of that hearing is only available through a terminal at the courthouse in Pensacola, or by purchasing it from the transcription service. It will not be available through PACER until December 27.) The motion to dismiss is now pending, though Judge Vinson strongly suggested that he is inclined to deny the motion and let the case proceed, at least to the stage of summary judgment.
On September 15, Judge Vinson issued the following scheduling order, applicable if the court denies the motion to dismiss:
A. I will enter my written order on the defendants’ motion to dismiss on or before October 14, 2010. Assuming the case survives dismissal in whole or in part, the parties have until November 4th in which to move for summary judgment (and the defendants may file their answer at the same time); the opposing party will have until November 23rd to respond; and the moving party will have until December 6th to file any reply.
B. As provided in the original Final Scheduling Order, the briefing with regard to the motions discussed above will be limited to fifty (50) pages for the initial and responsive briefs, and twenty-five (25) pages for reply briefs.
C. Hearing and oral argument on the motion(s) for summary judgment will held on Thursday, December 16, 2010, beginning at 9:00 a.m. (CST). Both sides will be allowed one (1) hour for argument.
Thus, we are currently on schedule -- in very rough terms -- to have these cases before the Fourth and Eleventh Circuits in the spring and summer of 2011. How long it will take those courts to resolve the questions presented -- and which questions will actually be presented at that point -- is much harder to predict.
Regardless, barring something unforeseen, we are still a long way from any of these questions reaching the Supreme Court.