Soon after, Justice Ketanji Brown Jackson said, “It’s interesting to me that you raised Badgerow,” and she suggested that dialogues during Levy’s argument established that Badgerow is outside the ambit of Waetzig’s high court case.
“I was surprised, given our colloquy earlier about the fact that there are two different jurisdictional arguments here,” Justice Jackson said. “So, what is this Badgerow argument? Like, why are we looking at that or caring about that in this context?”
She also asked why Halliburton hadn’t added Badgerow to the question presented in one of its briefs, and McGill first replied, “I don’t view it as the respondent’s job to rewrite the petitioner’s question presented.”
He added, “Candidly, I did not understand or fully contemplate the jurisdictional significance of the petitioner’s motion to vacate until we started briefing on the merits.”
Mere seconds later, Justice Kagan chimed in and suggested that the omission mattered less than the simple fact that Halliburton was jumping the gun by asking the high court to tackle something better left for a lower court on remand.
