My initial reading was that Gura was indulging in a little sarcasm, in the spirit which the idea was offered by the one judge to the one hoping for a way out of making a decision.
I didn't know of the second path to SCOTUS without Al's explanation.
For an attorney to advise a court, much less a panel, as to how to take a decision to SCOTUS, seems a little cheeky to me. Since the court seems tolerant of him, he might have decided to pull a little on their collective pork chop while reminding them of a way to hand the football off.
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain