“You might have a very good argument on Badgerow … that there is no jurisdiction to vacate the arbitration award. But that’s not what’s in front of us,” Justice Kagan said. “What’s in front of us is the 60(b) motion. … It’s just not the time to be talking about Badgerow.”
McGill then tried to liken Waetzig’s case to a situation where “the jurisdictional question has to come first,” but Justice Jackson again balked, saying, “I don’t understand that at all.”
“There was a challenge as to whether or not the district court properly granted a motion to reopen [Waetzig’s case], and that was the thing that this court took cert on,” she said.
Besieged by skepticism, McGill ultimately sought to convince the court that he was merely highlighting a crucial element of the litigation, not ducking anything. “I’m not afraid of the question presented, but the jurisdictional point is important here,” he said.
Generally speaking, when the justices are pondering whether to accept a pending petition, litigants routinely frame questions differently in hopes of strengthening their position or persuading the court to examine a specific topic. It’s not uncommon for that jockeying to continue even after the justices grant review and disclose the questions they’ve agreed to answer.
