Would you spend some time and explain why we have jurisdiction?

Sure, Justice Thomas.

Our view is that the Court has both statutory and constitutional jurisdiction.

I'll address those in turn.

On statutory jurisdiction, our view is that Atlantic Richfield is directly on point.

It could not be clearer, as a matter of Colorado law, that the proceeding below was a self-contained original proceeding, which gives rise to jurisdiction in this Court under Section 1257.

Boulder's argument to the contrary is that because this case did not involve a formal writ proceeding directed at the lower court, that it falls outside the scope of Atlantic Richfield.

Rebuttal, Mr. Shanmugam.

Mr. Sham again, before we get to the merits, Would you spend some time and explain why we have jurisdiction?

Sure, Justice Thomas.

Our view is that the Court has both statutory and constitutional jurisdiction.

I'll address those in turn.

On statutory jurisdiction, our view is that Atlantic Richfield is directly on point.

It could not be clearer, as a matter of Colorado law, that the proceeding below was a self-contained original proceeding, which gives rise to jurisdiction in this Court under Section 1257.

Boulder's argument to the contrary is that because this case did not involve a formal writ proceeding directed at the lower court, that it falls outside the scope of Atlantic Richfield.

Rebuttal, Mr. Shanmugam.

Uh, Mr. Shamiegan, before we get to the, uh, merits, uh, would you spend some time and explain why we have jurisdiction?

Sure, Justice Thomas.

Uh, our view is that the court has both statutory and constitutional jurisdiction.

I'll address those in turn.

On statutory jurisdiction, our view is that Atlantic Richfield is directly on point.

It could not be clearer as a matter of Colorado law that the proceeding below was a self-contained original proceeding, which gives rise to jurisdiction in this court under Section 1257.

Boulder's argument to the contrary is that because this case did not involve a formal writ proceeding directed at the lower court, that it falls outside the scope of Atlantic Richfield.

Rebuttal, Mr. Shamiegham?

Did anything about Paul, Weiss lead you to this move as opposed to the attractiveness of the opportunities at Davis Polk, which I will not dispute?

Well, it was really an attractive opportunity, so even if you're gonna try to preempt me, I'm gonna say that because it was a very attractive opportunity, and it has been a wonderful opportunity in the first six weeks so far.

I wouldn't wanna say anything critical about Paul, Weiss, David, because I had seven great years there.

As I said to my colleagues when I left, I wouldn't be the lawyer I am today, but for my experience there, I had some of the most enjoyable years of my professional career there.

I think I have always had a simple ambition, which is to have the very best appellate practice in the country, and I would say that over the months leading up to my departure, I thought really long and hard about where would be the best place to do that for the remainder of my career.

And in that, I very much had a partner in my colleague, Masha Hansford, who came over with me and who I believe is the finest appellate lawyer of her generation.

And we fought about this and talked about it a lot.

[laughing]

I picked him in particular.

[laughs] So I will start with, uh, how Henry would have thought about this and what he would have asked, and I think the answer to that, if you think about this in terms of Schoolhouse Rock! and, and sort of basic principles of our government, the basic idea is that it's Congress's power to make the laws.

It's the president's power to carry out the laws.

When we talk about executive power, we're really talking about executing the laws, carrying them out.

And what took place in the early 20th century was that Congress started to create so-called independent agencies, and what it was really trying to do was to kind of have it both ways, on the one hand, to say that these agencies would do things that you would think of as exercising executive power, things like bringing enforcement actions against individuals and private parties, issuing regulations, and here issuing civil investigative demands.

But yet Congress at the same time tried to make these agencies independent, tried to take them outside the executive branch, and Congress has done that in a variety of ways.

But I think this issue of removal has really become the flashpoint for a lot of this litigation, and the reason for that is pretty obvious.

[laughs]

Like, what are these executive agencies, and why do I, why do I care what they're doing?"

Well, our youngest child is nine, but he's very precocious

I picked him in particular

[laughs] So I will start with, uh, how Henry would've thought about this and what he would've asked.

And I think the answer to that, if you think about this in terms of Schoolhouse Rock and, and sort of basic principles of our government, the basic idea is that it's Congress's power to make the laws.

It's the president's power to carry out the laws.

When we talk about executive power, we're really talking about executing the laws, carrying them out.

And what took place in the early 20th century was that Congress started to create so-called independent agencies, and what it was really trying to do was to kinda have it both ways, on the one hand, to say that these agencies would do things that you would think of as exercising executive power, things like bringing enforcement actions against individuals and private parties, issuing regulations, and here issuing civil investigative demands.

Yes

...

the allegations.

Thank you.

[laughing] With regard to the allegations in this case, Justice Sotomayor, it will not surprise you to learn that Cisco vigorously disputes those allegations here.

But I wanna put this in the frame of where you started with your question, which is the experience of the lower courts.

You are right that there have been around 300 of these cases.

Rebuttal, Mr. Shamdanagh.

Yes

...

the allegations.

Thank you.

[laughing] With regard to the allegations in this case, Justice Sotomayor, it will not surprise you to learn that Cisco vigorously disputes those allegations here.

But I wanna put this in the frame of where you started with your question, which is the experience of the lower courts.

You are right that there have been around 300 of these cases.

Rebuttal, Mr. Shamdaghan.

So what is the problem with how that fits into any conscious aiding and abetting statute, including our own domestic one, that requires active inducement and active participation?

May I answer the questions that are on the table? First, with regard to the allegations involved.

Thank you.

With regard to the allegations in this case, Justice Sotomayor, it will not surprise you to learn that Cisco vigorously disputes those allegations here.

But I want to put this in the frame of where you started with your question, which is the experience of the lower courts.

You are right that there have been around 300 of these cases.

As we point out in our brief, there have only been six cases where plaintiffs have prevailed with a monetary recovery.

Rebuttal, Mr. Shabnagam.

(laughs)

(laughs) Well, my initial reaction is, I don't see why both of those things can't be true, which is to say that I think first, that Justice Jackson really is the sharpest critic of textualism on the court.

That footnote, footnote 12 really stood out in that regard as something that I couldn't imagine, say, Justice Kagan saying, um, given that she said at her confirmation hearing that we're all textualists now.

Uh, and so I do think that there are some principled methodological disagreements, and that Justice Jackson is at one end of the spectrum as to those disagreements.

At the same time, I think what's been striking about Justice Jackson is that she has been the most strident critic of the majority, particularly on emergency applications.

We saw that last week in the case involving, um, federal workforce reductions, where she was the sole dissenter, uh, from the court's decision allowing, uh, the litigation concerning, uh, those workforce reductions to, to move forward without an injunction.

And she has been very sharply critical of the majority's motives, going so far as to suggest that the majority, uh, is, uh, to some extent doing the president's bidding.

Do you have little, like, you know, thoughts about which circuits you wanna go in for certain types of cases or what the friendliest circuit is where the judges all get along and- (laughs)