Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearingsOn the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that […]

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Academic highlight: Collins and Ringhand on nominees’ responsiveness at Supreme Court confirmation hearings

On the eve of another Supreme Court confirmation hearing, Professors Paul Collins and Lori Ringhand have published an interesting study comparing nominees’ responsiveness to questions by the Senate Judiciary Committee. Their study focuses on the so-called “Ginsburg Rule” — that is, the principle that nominees should not give their positions on specific cases and issues that may come before them if they are confirmed. At his confirmation hearing, then-Judge Neil Gorsuch cited that rule numerous times as grounds for refusing to answer questions about his views on particular legal issues. After comparing Gorsuch’s responses to those of nominees between 1939 and 2010, including Ruth Bader Ginsburg, Collins and Ringhand found that Gorsuch was the least responsive nominee in decades, and they are worried he is setting a trend.

Neil Gorsuch’s confirmation hearing (Art Lien)

Collins and Ringhand explain that the practice of refusing to respond to certain questions is misattributed to Ginsburg, and in any case tells only half the story. After analyzing a database of confirmation-hearing questions and answers from every hearing between 1939 and 2010, they found that nominees long predating Ginsburg refused to answer questions regarding cases that might come before them. But these same nominees, including Ginsburg, were willing to respond to questions about their support for longstanding precedent that had become a part of the constitutional canon. The authors conclude that the “Ginsburg Rule” is really two rules: First, nominees have consistently refused to answer questions about unresolved legal questions likely to come before the Supreme Court to avoid the appearance of bias and preserve judicial independence; and second, aside from Gorsuch, nominees in the modern era have consistently been willing to confirm their support for well-established Supreme Court precedent.

Nominees’ refusal to answer certain types of questions is as old as the confirmation process itself. In 1939, Justice Felix Frankfurter was the first to undergo public confirmation hearings at which he answered questions under oath. He was also the first to refuse to answer some questions on the grounds that it would be improper to do so. At almost every confirmation hearing since, the nominee has asserted what Collins and Ringhand refer to as a “privilege” to refuse to respond to some questions.

Nominees assert that privilege for two reasons: First, to avoid any appearance of having prejudged an issue that could come before the court; and second, to protect judicial independence by refusing to make promises or commitments to senators on the Judiciary Committee in exchange for confirmation.

Collins and Ringhand agree these concerns are valid, but they argue that another value is at stake in Supreme Court confirmation hearings that cuts in favor of responsiveness, at least to some types of questions. Such hearings provide an opportunity for the senators, and by extension those they represent, to determine whether the nominee deserves a spot on the Supreme Court. The Senate can only serve that role if the nominees answer questions regarding the precedents and doctrines they support.

The authors have studied the confirmation hearings stretching back to Frankfurter’s in 1939 to measure the frequency with which would-be justices refused to answer questions compared to their willingness to give firm views regarding established case law. They analyzed data from the U.S. Supreme Court Confirmation Hearing Database, which contains information about every question and answer at every confirmation hearing from 1939 through 2010, to determine what they label a nominee’s “responsiveness ratio.” (They also incorporated into that dataset information from Gorsuch’s hearing.) The responsiveness ratio is the number of questions a nominee refused to answer on the basis of the so-called Ginsburg Rule compared to the number of questions about doctrine and precedent that the nominee answered. They then ranked all the nominees on this metric to see which ones responded significantly more often than not. They also broke down the areas and issues on which Ginsburg and Gorsuch, respectively, were responsive and on which issues they held back.

Using these metrics, Collins and Ringhand found that Ginsburg refused to respond approximately 10 percent of time — a higher rate than some recent nominees (such as John Roberts, at 6.6 percent), though lower than others (such as William Rehnquist, at 12.2 percent). But she gave firm responses 15.44 percent of the time, putting her at a healthy responsiveness ratio of +5.08. In contrast, Gorsuch asserted the privilege 6.6 percent of the time, but very rarely gave firm answers to any question about doctrine or precedent, including direct questions about the validity of cases such as Brown v. Board of Education and even Marbury v. Madison (though later in his hearing he agreed that case was correctly decided). His response rate was only 0.75 percent, leading his responsiveness ratio to be -5.91, far below the norm set over the last few decades.

Collins and Ringhand are disturbed by Gorsuch’s refusal to affirm even longstanding and well accepted Supreme Court precedent. They fear that if nominees stop taking any positions on previous Supreme Court precedent — even those concerning uncontroversial issues unlikely to come back before the court — the confirmation hearings will lose their value. The nation will also lose an opportunity to determine which previously disputed Supreme Court precedents have become an accepted part of the constitutional canon, and which are still up for debate.

In conclusion, they argue that the future nominee should follow what they call the “Ginsburg Rules,” with an emphasis on the plural. That is, the nominee can and should assert a privilege not to respond to questions about cases or issues that remain controversial, but should also take care to give clear answers to questions about cases that are now accepted as part of the constitutional canon.

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Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme Court

Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme CourtDo Americans continue to support the Supreme Court in the face of frequent criticism, including hostile tweets by the president of the United States? That question is particularly important on the eve of yet another confirmation battle and at the end of a term filled with high-profile cases. A recent NYU Law Review Symposium hosted […]

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Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme Court

Do Americans continue to support the Supreme Court in the face of frequent criticism, including hostile tweets by the president of the United States? That question is particularly important on the eve of yet another confirmation battle and at the end of a term filled with high-profile cases. A recent NYU Law Review Symposium hosted by the Brennan Center for Justice gathered a group of experts to examine the public’s support for the Supreme Court in the face of frequent attacks.

In their contribution, Professors Michael Nelson and James Gibson surveyed a random sample of Americans to determine whether criticism erodes the Supreme Court’s legitimacy and Americans’ support of that institution. Their findings confirmed previous studies showing that the public’s support for the court is strong, and that it dips more when the court is criticized as politicized rather than for making errors of law. To their surprise, however, they found that the public’s perceptions are affected more by criticism voiced by law professors than criticism by the president of the United States.

In a responsive essay, Professor David Fontana cautions that Nelson and Gibson may have “created a false sense of security that the public deeply and durably believes in the Supreme Court.” He does not take issue with their findings that the public supports the court and values judicial independence in the abstract, or that critiques by legal elites can undermine the institution. But his own research shows that support would dissolve when the stakes are high, such as in the aftermath of a terrorist attack. And he points out that their study does not examine whether the president’s pointed attacks on the courts and on specific judges have taken a toll.

Nelson and Gibson set out to test the types of criticism that affect the public’s support for the court. Legitimacy, or “diffuse support” in political science lingo, is defined as “a reservoir of favorable attitudes or good will that helps members accept or tolerate outputs to which they are opposed or the effect of which they see as damaging to their wants.” To measure that support, Nelson and Gibson first had survey respondents read short vignettes of various types of criticism of the court from different sources, and then asked them about their willingness to consider fundamental changes to the Supreme Court’s institutional structure.

The authors divided the survey respondents into two groups. One group read a vignette criticizing the court as too political (“nothing more than politicians in robes”); half of that group was told that President Donald Trump was the source, while the other half was told that the criticism came from a “bipartisan group of distinguished law professors.” Another group read a vignette criticizing the court on legal grounds (“the Supreme Court justices too often do not follow what the Constitution says”). Again, half of that group was told that the criticism came from the president, and the other half was told it came from law professors. After reading these critiques, all the respondents were then asked whether, if the court decided lots of cases in ways the public disagreed with, “it might be better to do away with the Court altogether” or alternatively reduce its independence. The authors then compared the responses to answers to those same questions a year earlier, when the groups had not been exposed to the critiques.

Nelson and Gibson’s results confirmed earlier studies showing that the public’s support for the court is more likely to deteriorate in response to criticism that the court is politicized than that it made legal errors. (Indeed, this result confirmed Gibson’s previous research. In 2007, Gibson co-authored a study showing that the public’s support for the court dipped during confirmation hearings because interest groups ran ads leading the public to view the court as “just another political institution.”) Nonetheless, their finding is important because it is the first to be based on a nationally representative survey.

To the authors’ surprise, however, they found that survey respondents’ view of the court was more affected by law professors’ criticism that the court was too politicized than by either type of criticism from the president. They concluded that the most likely interpretation of these results is that the public gives weight to the legal experts’ views of the court, while “Trump’s criticisms have become so ubiquitous in everyday life in America as to be rendered ‘cheap talk’ by the American people.” In short, criticisms by law professors pose more of a danger to the public’s support of the courts than does criticism by the president.

Fontana warns that these results should not be taken out of context. He does not disagree with Nelson and Gibson’s methods or results, but he points out that the survey does not measure “how people think about the Supreme Court when they care about the Court.” Fontana observes that Nelson and Gibson’s vignettes and survey questions are abstract, and the policy stakes are low. For example, they had respondents read a vignette describing a “recent speech” by Trump referring to the justices as “politicians in robes” — a bland version of Trump’s colorful early-morning tweets. Nor were respondents asked about the value of judicial independence in the context of specific and high-stakes scenarios.

Fontana wonders if the results would have been different had Nelson and Gibson surveyed respondents’ reactions to Trump’s tweet calling a federal district-court judge “a total disgrace,” or another stating that the district-court judge in Washington who enjoined the travel ban had “put our country in such peril. If something happens blame him and court system.” Survey respondents also might have answered differently, Fontana suggests, had the questions come shortly after a terrorist attack, when the courts are deciding issues about which the public cares deeply. Yet it is at just such moments that the independence of the federal judiciary is most at risk. Fontana’s research has shown that abstract issues such as judicial legitimacy and independence can fall by the wayside when the policy stakes are high. Fontana concludes that although “people report a deep attachment to judicial independence,” it is “an abstract commitment that does not pervasively affect important political behavior—such as voting for a presidential candidate threatening judicial independence.”

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Academic highlight: Hamburger and Siegel on the constitutionality of Chevron deference

Academic highlight: Hamburger and Siegel on the constitutionality of <em>Chevron</em> deferenceIs Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law. In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s […]

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Academic highlight: Hamburger and Siegel on the constitutionality of <em>Chevron</em> deference

Is Chevron deference unconstitutional? Congress, several justices and legal academics are debating the legitimacy of this decades-old principle of administrative law.

In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., decided over 30 years ago, the Supreme Court declared that courts must defer to a federal agency’s reasonable interpretation of ambiguities in the agency’s governing statute. Although the doctrine has been narrowed in recent years, it has remained a bedrock principle of administrative law. Recently, however, both Justice Clarence Thomas and Justice Neil Gorsuch have questioned the constitutionality of Chevron deference. Just a few weeks ago, in his opinion for the court in SAS Institute v. Iancu, Gorsuch began by noting SAS Institute’s proposal that the Supreme Court eliminate Chevron deference altogether — an idea that the court chose to “leave for another day” rather than reject out of hand. Congress has also expressed concern. In both 2016 and 2017, the House of Representatives voted in favor of a bill abolishing Chevron deference on the ground that it is “difficult, if not impossible, to square with separation of powers.” Now, legal academics are taking sides in the debate as well.

Professor Philip Hamburger is one of Chevron’s skeptics. In his 2016 article, “Chevron Bias,” he argues that courts have a constitutional obligation to exercise independent judgment when interpreting statutes. In Marbury v. Madison, Chief Justice John Marshall declared, “It is emphatically the province and duty of the Judicial Department to say what the law is.” Yet Chevron gives agencies the power to “say what the law is,” requiring courts to accept an agency’s reasonable interpretation of a statute even when the court would have reached a different conclusion. Worse, says Hamburger, Chevron deference produces “systemically biased judgments” by requiring that judges defer to the reasoning of a self-interested party to the case, which he concludes is a “brazen violation” of the Fifth Amendment’s due process clause.

In a recent essay, “The Constitutional Case for Chevron Deference,” professor Jonathan Siegel comes to Chevron’s defense. Accepting for the sake of argument assertions by Hamburger, Gorsuch and others that courts must exercise independent judgment about the meaning of federal law, Siegel maintains that Chevron deference is fully consistent with this role. Chevron does not delegate the interpretive function to agencies, but rather asks courts to view ambiguous statutes as creating a menu of permissible actions from which the agency can choose. As Siegel puts it, “[a]n interpretation that determines that a statute delegates power to the executive is still an interpretation.” For the same reason, he disagrees that Chevron deference requires courts to affirm agencies’ self-interested interpretations of statutes. Congress may permissibly vest policymaking discretion in federal agencies; allowing the agency, rather than the court, to choose among the options permitted by ambiguous statutory language does not violate due process. In short, Congress is free to draft ambiguous statutes that operate as delegations of policymaking power to agencies.

Siegel acknowledges, however, that Congress may not have intended courts to treat statutory ambiguities as delegations of authority to agencies. He does not defend Chevron deference against this critique, but he points out that Congress’ silence on this question implies that it has acquiesced in the practice. That said, the House of Representatives has now twice passed a bill that would abolish Chevron deference, suggesting that the debate might ultimately be settled in the halls of Congress rather than by the justices of the Supreme Court.

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Academic highlight: Chabot on the timing of justices’ retirements

Academic highlight: Chabot on the timing of justices’ retirementsIt’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to […]

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Academic highlight: Chabot on the timing of justices’ retirements

It’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to coincide with ideologically compatible presidents, and that many others choose not to do so even though they could. Even more interesting, Chabot found that those justices who do retire strategically are often disappointed by their replacements. Chabot concludes that “[l]imited success in obtaining like-minded replacements explains why Justices flout calls to retire to presidents who share their ideology.”

A justice’s greatest impact on the Supreme Court may come not from her decisions in individual cases, but from the timing of her retirement. The conventional wisdom holds that the justices choose to retire when an ideologically proximate president holds office, cementing their legacy and perpetuating their influence over the court long after they leave the bench. Indeed, the justices’ control over the timing of their retirements is a much-criticized feature of life tenure.

But Chabot’s study of Supreme Court justices’ retirements since 1954 undermines that view, contributing to the ongoing debate among legal scholars over the role of politics in the timing of judicial retirements. Chabot found that half of the 22 retirements over the last 64 years were not politically timed. Many justices are compelled to retire due to serious health problems. For example, Justice William Douglas suffered a stroke, forcing him to step down while Gerald Ford was president – a result he had hoped to avoid. (At one point Douglas declared: “Even if I’m only half alive, I can still cast a liberal vote.”) In the case of other justices, the presidency and Senate were controlled by ideologically distant political actors during the years leading up to their retirement, so they had no choice in the matter. Chabot explains that timing a retirement is particularly difficult for justices in the ideological center, such as Justices Sandra Day O’Connor and Anthony Kennedy, because their votes are not typical of the judges preferred by either the Democratic or Republican parties.

Chabot found that about half of the justices who retired since 1954 appeared to have timed their retirements to occur when ideologically compatible presidents were in office. But even so, they were often disappointed by the results. She concluded that “on average, voluntary retirees did not obtain significantly more like-minded successors than Justices who left involuntarily.”

Chabot’s surprising findings are due in part to her nuanced analysis of the preferences of the retiring justice. Some previous studies of judicial retirements conflated judicial ideology with the party of the appointing president. If a justice appointed by a Republican president retired during a Republican presidency, the justice was assumed to have achieved her goal of retiring during the term of an ideologically compatible president. But Chabot argues that a justice’s voting record is a more accurate measure of ideology than the appointing president’s political party. For example, Justice David Souter was appointed by President George H.W. Bush, a Republican, but he chose to retire when a Democrat was president and Democrats controlled the Senate – a choice that makes sense only when looking at Souter’s more liberal voting record. By the same token, O’Connor, appointed by a Republican, retired while a Republican was president. But her replacement, Justice Samuel Alito, is ideologically distant from her, and she has reportedly expressed disappointment in his performance.

Chabot acknowledges that her study focused on a small number of justices, and that the results might differ over time. She notes that “[i]f enough Justices voluntarily retire to ideologically proximate presidents, there is reason to think they would average significantly better outcomes than Justices who leave involuntarily.” Nonetheless, her study shows that it is difficult for a justice to time his retirement and that, even when a justice succeeds in doing so, his replacement might not vote as he would prefer. In other words, like presidents, retiring justices can find themselves unhappily surprised by the voting records of their successors.

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Academic highlight: The debate over nationwide injunctions

Academic highlight: The debate over nationwide injunctionsWhen, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions […]

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Academic highlight: The debate over nationwide injunctions

When, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders — often referred to as “nationwide injunctions” — with increasing frequency over the past decade. During President Barack Obama’s administration, district courts issued such injunctions to halt policies granting deferred action to undocumented immigrants and accommodating transgender students in public schools; more recently, injunctions like these temporarily put a stop to President Donald Trump’s travel ban and blocked his rescission of deferred action for undocumented immigrants brought to the United States as children. Congress is considering legislation to regulate the practice, and some speculate that the Supreme Court may soon weigh in as well. In the meantime, legal scholars are debating the constitutional, systemic and policy concerns implicated by nationwide injunctions at conferences, during congressional hearings and in the pages of law reviews.

Legal scholars generally agree on few major points. First, the term “nationwide injunction” is misleading. As professor Howard Wasserman suggests, a better name might be “universal injunction,” because the debate is about whether injunctions can require the federal government to cease enforcing a law against nonparties, not whether the injunctions should apply nationwide. Second, these injunctions are a relatively new phenomenon and have been used with increasing frequency over the last decade. Third, nationwide injunctions are nonpartisan — they have been sought by individuals on both sides of the political spectrum to put a stop to policies they oppose. Fourth, nationwide injunctions come with costs that courts should consider carefully before imposing them.

From that common ground, scholars stake out different positions. Professors Samuel Bray, Michael Morley and Wasserman oppose nationwide injunctions in all or most cases. These scholars argue that such injunctions encourage forum shopping and politicize the judiciary, allowing plaintiffs to hand pick a single district-court judge who can then set policy for the nation. (It was no coincidence that Obama’s policies were challenged in the “red state” of Texas, and Trump’s in the “blue states” of California, Hawaii and Maryland.) They observe that nationwide injunctions are inconsistent with a judicial system that denies precedential value to district court decisions and typically requires named plaintiffs to meet class-certification requirements before obtaining relief on a collective basis. They also point out that such rulings put pressure on the Supreme Court to decide cases before they have been thoroughly debated in the lower courts. For all these reasons, these critics argue, courts should enjoin defendants from enforcing a law only against the plaintiffs in a particular case.

Other lawyers and scholars argue that in some cases nationwide injunctions are essential. (Full disclosure: I’m in this camp.) Such injunctions are at times the only way to provide complete relief to plaintiffs. For example, if a single African-American plaintiff sues seeking desegregation of a public school, an order requiring the school district to admit only that plaintiff will not alleviate her injury. Even if class certification is possible in such a case — and there are many barriers to certification — there is no reason a plaintiff should be required to bring a class action to vindicate her individual constitutional rights. And sometimes such injunctions are essential to avoid injury to the thousands of people affected by government action who cannot quickly file suit themselves, or who could not easily be included in a class — as was the case in the travel-ban litigation. Finally, in some cases anything short of a nationwide injunction is simply impractical. When a district court is asked to pass on the validity of an agency rule with nationwide effects — such as one affecting the air or water — it would be extremely difficult to enjoin application of the rule to some plaintiffs but not others.

As professor Suzette Malveaux has argued, nationwide injunctions are also essential to maintaining the balance of power among the three branches of government. Over the last few decades, executive power has expanded as Congress has been mired in gridlock, leading presidents from both parties to make sweeping changes in federal policies through unilateral executive action. These actions often affect thousands of people, many of whom are incapable of quickly filing lawsuits to put a stop to policies that they claim violate their rights. Malveaux argues that a ban on nationwide injunctions “would remove an important check on the executive branch,” further exacerbating the imbalance in power among the three branches.

Closely related to these systemic and policy concerns is the question whether federal courts have the constitutional authority to issue nationwide injunctions. Bray has argued that Article III of the Constitution limits the federal courts to providing remedies only to the plaintiffs, who have demonstrated their standing to sue. On the other hand, equitable remedies like injunctions have never perfectly tracked standing — for example, courts are willing to order prophylactic injunctions to prevent potential future injuries, even when those injuries would not have satisfied the “actual injury” requirement for standing. In any case, the Supreme Court has shown some flexibility when it comes to standing, such as by allowing plaintiffs to raise the rights of others and to bring moot cases to resolve an issue that is “capable of repetition, yet evading review,” and it has permitted associations to sue on behalf of their members.

The Supreme Court’s June 26, 2017, order narrowing, but keeping in place, a nationwide injunction against enforcement of the second version of the Trump administration’s travel ban suggests that the court has yet to see a constitutional problem with nationwide injunctions. As Bray has noted, however, the court has never squarely addressed the issue, and it has an institutional interest in ensuring that legal questions percolate in the lower courts. Now that nationwide injunctions are cropping up in multiple cases, Bray and others predict that the court will take up that question in the near future.

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Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument

Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argumentSavvy litigators can often guess the outcome of a Supreme Court case by observing the oral argument. But it might also be possible to make that kind of prediction scientifically, through empirical analysis of the justices’ interactions with the advocates and with each other. In a recent paper, Tonja Jacobi and Kyle Rozema studied oral arguments from […]

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Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument

Savvy litigators can often guess the outcome of a Supreme Court case by observing the oral argument. But it might also be possible to make that kind of prediction scientifically, through empirical analysis of the justices’ interactions with the advocates and with each other. In a recent paper, Tonja Jacobi and Kyle Rozema studied oral arguments from 1960 through 2015 and found that when justices interrupt each other during oral argument, they are seven percent less likely to vote together in that case. These findings add to existing data analyzing the relationship between oral arguments and the outcome of cases. A 2009 study by Timothy R. Johnson, Ryan C. Black, Jerry Goldman and Sarah Truel found that the advocate who is asked more questions is more likely to lose the case, and Bryce J. Dietrich, Ryan D. Enos and Maya Sen were able to accurately predict many of the justices’ eventual votes in a case solely through measurement of their vocal pitch at oral argument. Taken together, these studies suggest that if we crunch all the right data, we can guess how the justices will rule months before they tell us.

Jacobi’s earlier study of interruptions showed that female justices were more likely to be interrupted by their colleagues and the advocates than were male justices. This time, Jacobi and Rozema were interested in what interruptions tell us about how the justices will vote. They hypothesized that interruptions correlate with voting disagreements between the two justices involved. The authors realized that interruptions might signal something else — perhaps a broader conflict between two justices unrelated to a specific case, or an effort by those justices who generally speak less to get a word in edgewise. But after controlling for these and other possibilities, Jacobi and Rozema found that justices who interrupt each other are more likely to disagree on the outcome of the case.

The authors acknowledge that the data does not reveal the causal relationship between interruptions and voting agreement. The justices may disagree on a case outcome in part because of an interruption that occurred during the argument, or they may interrupt each other because they already know going into the oral argument that they disagree on the outcome of the case (though the latter explanation seems far more likely).

The reasons for interruptions also are unclear. The justices may be genuinely trying to persuade each other, or they may be grandstanding for the audience and the press. Or maybe none of the above. Amusingly, the authors speculate that perhaps the “interrupting Justices … simply cannot stop themselves” from jumping in before a colleague has finished her sentence, particularly in cases in which they disagree.

Jacobi and Rozema’s study is interesting for a number of reasons, but its most obvious value is in providing advance notice to the parties and the public of how the justices will vote in a given case. Today, we rely solely on sophisticated observers of oral argument to give their views about who will win. We might do better to create computer programs that can count the number of questions, identify interrupters and interruptees, and measure vocal pitch. If we input all the right data, we might find that the written opinions we wait for breathlessly every June just confirm what we already knew.

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Academic highlight: Vázquez and Vladeck on the constitutional right to post-conviction review

Academic highlight:  Vázquez and Vladeck on the constitutional right to post-conviction reviewDid the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to […]

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Academic highlight:  Vázquez and Vladeck on the constitutional right to post-conviction review

Did the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to habeas review in some court in at least some circumstances — upending the last 50 years of precedent and federal legislation strongly suggesting otherwise. To be sure, Montgomery didn’t say so explicitly. The court held only that a state court sitting in habeas was required to give retroactive effect to the Supreme Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment prohibits the imposition of mandatory life sentences without parole for juveniles. But Vázquez and Vladeck argue that Montgomery‘s holding necessarily rests upon a constitutional right to post-conviction collateral review — even if the court failed to realize it at the time.

wide-shot with Kyle Duncan at lectern for petitioner

Courtroom during oral argument in Montgomery v. Louisiana (Art Lien)

To understand Vázquez and Vladeck’s argument, we first have to revisit some background principles governing habeas review. First, collateral review of state convictions – that is, as the Supreme Court put it in 2011 in Wall v. Kholi, “judicial review that occurs in a proceeding outside of the direct review process” — is available in most state courts under state law. Second, federal statutes authorize federal courts to provide collateral review of those state court convictions as well — either after the state collateral review process is finished, or in place of it, and federal courts also provide collateral review of federal convictions. Third, the Supreme Court established in Teague v. Lane that habeas petitioners normally cannot benefit from a “new rule” of constitutional law announced by the Supreme Court after their convictions have become final. But Teague also recognized an important exception to this anti-retroactivity principle: If a Supreme Court opinion creates a “new rule” that changes the substantive law under which the prisoner was convicted and sentenced (like the Eighth Amendment rule articulated in Miller), then that new substantive rule can be applied by a state or federal habeas court on collateral review.

Montgomery turned that “can” into a “must.” In 1970, Henry Montgomery was sentenced to life without parole for a crime he committed when he was seventeen years old. In July 2012, Montgomery filed a habeas petition in state court, arguing that the Supreme Court’s June 2012 decision in Miller prohibiting mandatory sentences of life without parole for juveniles should be applied retroactively to require his release, or at least his resentencing. The Louisiana state court denied Montgomery’s petition, and Montgomery filed a petition for review in the Supreme Court. By a 6-3 majority, the Supreme Court ruled in Montgomery’s favor. The court held that Miller’s bar against mandatory sentences of life without parole for juveniles applies retroactively in habeas proceedings because it falls within the Teague exception for new substantive rules. But to reach that issue, the court first had to decide a harder jurisdictional question: Do state courts sitting in habeas have a constitutional obligation to apply new rules retroactively, or are they free to craft their own state law rules governing the scope of habeas relief? The Supreme Court held for the first time that state courts must give retroactive effect to new rules of substantive law on collateral review.

Vázquez and Vladeck argue that this jurisdictional holding carries enormous significance. The requirement that states recognize the Teague exception in their own collateral post-conviction proceedings rests on the unstated assumption that prisoners such as Montgomery have a constitutional right to collateral review in some court, whether state or federal — an abrupt departure from the conventional wisdom that neither forum is constitutionally obligated to grant habeas relief to state prisoners seeking post-conviction review.

In fleshing out the consequences of Montgomery’s holding, Vázquez and Vladeck address a number of complex doctrines governing litigation in the federal courts. If the Constitution requires habeas review for prisons in some court, then the next question is which court — state or federal? Vázquez and Vladeck argue that state courts must provide collateral review for federal claims under the same long-recognized supremacy clause principles that mandate that states provide a forum for the adjudication of all types of federal claims. This conclusion is also in accord with the Constitution’s so-called “Madisonian Compromise,” under which Congress can choose whether to establish the lower federal courts. If habeas review is constitutionally required, and if Congress has the constitutional authority to abolish lower federal courts at any time, then it follows that state courts have a constitutional obligation to grant collateral review of state convictions in habeas, at least when federal courts are unavailable.

When it comes to federal prisoners, the situation is even trickier. In Tarble’s Case, decided in 1872, the Supreme Court held that state courts lack the authority to issue habeas relief to those held in federal custody. Although Tarble’s Case has long been read as imposing constitutional limits on state courts’ authority to grant habeas relief, Vázquez and Vladeck think it is better understood as a statutory restriction on state courts. As long as the lower federal courts exist, and Congress has granted them the authority to engage in post-conviction habeas review of federal convictions, then state courts lack the power to grant habeas relief to federal prisoners. But Vázquez and Vladeck conclude that if Congress were to abolish the lower federal courts, the state courts would be authorized — indeed, constitutionally obligated — to grant habeas relief to federal prisoners as well, at least on claims like the one at issue in Montgomery.

In short, Vázquez and Vladeck conclude that Montgomery dramatically upended the long-standing assumption that collateral review is a matter of legislative grace rather than constitutional compulsion. As they admit, however, the Supreme Court may not have fully thought through the implications of its own decision.

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Academic highlight: Schwartz on qualified immunity

Academic highlight:  Schwartz on qualified immunityIn District of Columbia v. Wesby, the Supreme Court has once again been asked to address the scope of qualified immunity, which bars constitutional claims against public officials unless they were found to have violated clearly established law. The court has explained that the doctrine is essential to protect officers from the burdens of discovery and […]

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Academic highlight:  Schwartz on qualified immunity

In District of Columbia v. Wesby, the Supreme Court has once again been asked to address the scope of qualified immunity, which bars constitutional claims against public officials unless they were found to have violated clearly established law. The court has explained that the doctrine is essential to protect officers from the burdens of discovery and trial, as well as from damages awards. But after analyzing thousands of Section 1983 cases against law-enforcement officers, professor Joanna Schwartz questions whether either rationale supports qualified immunity in its current form. To the contrary, she fears that qualified immunity “increase[s] the costs and delays associated with constitutional litigation” without any corresponding benefits for officers.

In her 2014 article, Policing Indemnification, Schwartz found that almost all police officers are indemnified for their conduct in the course of employment. More surprising, in her forthcoming article in the Yale Law Journal, How Qualified Immunity Fails, Schwartz found that fewer than four percent of Section 1983 cases are dismissed on qualified-immunity grounds, and that the defense of qualified immunity is rarely raised before discovery. In short, her empirical research shows not only that police officers are almost never personally at risk from money damages, but also that qualified immunity rarely protects them from discovery and trial.

After reporting her empirical findings, Schwartz then explores why qualified immunity is not raised early and often by the public officials it is intended to protect, and why courts frequently deny those claims when officials do raise them. Schwartz suggests that district courts may find it difficult to dismiss cases on qualified-immunity grounds because plaintiffs can plausibly plead violations of clearly established rights in their complaints. Likewise, plaintiffs can often raise factual disputes that will prevent dismissal on qualified-immunity grounds at the summary judgment stage. In other words, the doctrine is not well-suited to eliminating cases early in the proceedings.

Schwartz does not deny that qualified immunity has an effect on Section 1983 litigation, however. The doctrine likely discourages some potential plaintiffs from filing lawsuits, and persuades others to withdraw or settle claims before discovery or trial. Schwartz also suggests that plaintiffs’ attorneys may plead around qualified immunity by including in their complaints claims that are not subject to the qualified-immunity defense – such as claims against municipalities, claims seeking injunctive relief, and state-law claims – thereby avoiding early termination of the litigation.

As Schwartz acknowledges, her data could support the conclusion that the Supreme Court should further strengthen qualified immunity to protect public officials from suit. But Schwartz argues that qualified immunity is fundamentally ill-suited to weed out cases early in proceedings, and in any case she believes it would be difficult to make the qualified-immunity doctrine any stronger than it currently is. She suggests instead that the court rethink the structure of the doctrine. For example, she proposes that the court reconsider its decision in Harlow v. Fitzgerald barring consideration of the officer’s subjective intent, because the court’s rationale had been to shield officers from discovery – and she has shown that the doctrine rarely serves that purpose. She also questions whether defendants should have the right to interlocutory appeal of denials of qualified immunity, noting that the time and money spent briefing such appeals may be greater than the time and money saved in the few cases in which qualified-immunity denials are reversed by an appellate court.

In previous decisions, the Supreme Court has explained that qualified immunity is intended to “balance[] … the need to hold government officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties responsibly.” But the court has also stated that new evidence might “justify reconsideration of the balance struck” in its qualified-immunity jurisprudence. Schwartz’s recent articles provide important new evidence about the costs and benefits of qualified immunity that could influence the court’s jurisprudence on qualified immunity in Wesby and future cases.

 

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Academic highlight: Shaw on presidential speech and the courts

Academic highlight:  Shaw on presidential speech and the courtsShould judges rely on a president’s public pronouncements to resolve cases? Cardozo Law School professor Kate Shaw has authored the first article systematically addressing the role that a president’s statements should play in court. The topic is timely: The U.S. Courts of Appeals for both the 4th and 9th Circuits faced that question when addressing challenges to the […]

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Academic highlight:  Shaw on presidential speech and the courts

Should judges rely on a president’s public pronouncements to resolve cases? Cardozo Law School professor Kate Shaw has authored the first article systematically addressing the role that a president’s statements should play in court. The topic is timely: The U.S. Courts of Appeals for both the 4th and 9th Circuits faced that question when addressing challenges to the Trump administration’s travel ban, and the Supreme Court will have to do so as well when it reviews those decisions this fall.

The issue is not new. As Shaw explains, courts have relied on presidents’ statements to decide a host of legal questions in recent years. For example, a California district court relied on a statement in one of President Barack Obama’s speeches to conclude that the military’s Don’t Ask, Don’t Tell policy did not protect national security, despite contrary assertions in government briefs. Likewise, a Texas district court cited Obama’s statements to support the conclusion that granting deferred action to millions of unauthorized immigrants violated the Administrative Procedure Act. Today, President Donald Trump’s campaign statements, speeches and press appearances have played a central role in litigation challenging the legality of the travel ban, even as government attorneys argue that those statements should be given no weight. (Shaw made the interesting choice to focus her article on presidents’ spoken words, and thus she does not address whether courts should give any weight to Trump’s tweets.)

Shaw’s article first discusses the context in which presidential speech is generated – often rapidly, and for political purposes – and then analyzes the judicial decisions that have relied on (or rejected) presidential pronouncements to resolve legal questions. She recognizes that the issue is complex, and her approach is nuanced. (Her thoughts on this subject may have been influenced by her previous role in the White House Counsel’s office.) Generally speaking, Shaw thinks courts should avoid giving legal effect to a president’s spoken remarks, because such statements serve as “political storytelling, civic interpretation, persuasion and mobilization, not the articulation of considered legal positions.” Instead of citing off-the-cuff presidential remarks, she argues, courts should rely on more carefully considered and crafted executive statements, such as legal briefs and administrative guidance documents. When there is conflict between the two – as is often the case – courts should look to the latter. Nonetheless, Shaw believes there are some exceptions to this general rule, such as when the president’s speech concerns foreign affairs, or when the speech is evidence of governmental purpose and that purpose is relevant to the resolution of the legal issue.

Shaw concludes by applying her framework to Trump’s statements relating to the executive orders establishing the travel ban. She argues that courts may look at such statements to determine whether the ban was motivated by an impermissible animus against Muslims, but cautions courts against relying on the statements to determine the scope or operation of the ban. We shall see whether the Supreme Court agrees when it hears the case in October.

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Academic highlight: Weil on denaturalization and the Supreme Court

Academic highlight:  Weil on denaturalization and the Supreme CourtIn Maslenjak v. United States, the Supreme Court will decide whether the government can revoke naturalization based on immaterial false statements made during the naturalization process. Although the issue is primarily one of statutory interpretation, major constitutional questions lurk beneath the surface. As Patrick Weil explains in his fascinating book, “The Sovereign Citizen: Denaturalization and the Origins of the American Republic,” […]

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Academic highlight:  Weil on denaturalization and the Supreme Court

In Maslenjak v. United States, the Supreme Court will decide whether the government can revoke naturalization based on immaterial false statements made during the naturalization process. Although the issue is primarily one of statutory interpretation, major constitutional questions lurk beneath the surface. As Patrick Weil explains in his fascinating book, “The Sovereign Citizen: Denaturalization and the Origins of the American Republic,” 50 years ago the Supreme Court put a stop to the government’s once-common practice of denaturalization, and in the process “redefin[ed] the country’s understanding of sovereignty and citizenship.” The court’s decision in Maslenjak is likely to be informed by this legal and historical precedent.

Today, it is virtually impossible for native-born U.S. citizens to be stripped of their citizenship, and naturalized citizens can only lose their status if they “knowingly procured” citizenship in violation of the law. Throughout much of the 20th century, however, the government could terminate the citizenship of both native-born and naturalized citizens for a variety of conduct. For example, between 1907 and 1922, women who married foreign men automatically lost their citizenship, and the government could also denationalize U.S. citizens for voting in foreign elections or deserting from the armed forces. Naturalized citizens were at even greater risk. They could be denaturalized for a host of activities deemed “un-American,” such as speaking out against the U.S. government, participating in certain political organizations, or taking any action suggesting a lack of “attachment” to the U.S. Constitution. The numbers are surprisingly large: Between 1907 and 1967, over 22,000 Americans were denaturalized — more than in any other democracy. As Weil puts it, by the middle of the 20th century, “American citizenship had become conditional.”

Weil explains that denaturalization was often used as a weapon against the government’s critics. Most infamously, the government stripped prominent anarchist Emma Goldman of her citizenship in 1919 and then deported her. In her essay “Woman Without a Country,” Goldman wrote that “[t]o have a country implies … the possession of a certain guarantee of security, the assurance of having some spot you can call your own and that no one can alienate from you.” After being expelled from the United States, she concluded that “[c]itizenship has become bankrupt: it has lost its essential meaning, its one-time guarantee.”

In a series of decisions starting in the 1940s, the Supreme Court gradually put an end to the practice. Weil explains that the court’s early decisions were grounded on the individual’s constitutional rights to free speech and due process, but eventually the court broadened its reasoning to redefine the relationship between citizens and the state. In Afroyim v. Rusk, Justice Hugo Black wrote: “In our country, the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship,” so it would be “completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.” Since Afroyim was decided in 1967, fewer than 150 people have been denaturalized, most for committing fraud in the naturalization process.

In Maslenjak, the government argues that the statute at issue, 18 U.S.C. 1425(a), requires proof only that Maslenjak made a false statement in her naturalization application, regardless of whether it was material to the decision to grant that application. The ability of a foreign citizen to naturalize is a privilege granted by Congress, the government explains, and therefore can be withheld or withdrawn upon a showing that the applicant failed to follow the statutory requirements to obtain it. Maslenjak and the “friends of the court” who filed briefs on her behalf argue that the government’s interpretation raises serious constitutional questions. The government’s reading, they claim, would put at risk the status of many of the nation’s 20 million naturalized citizens, some of whom may have made trivial misstatements in their naturalization applications that, years later, could be used to strip them of their citizenship. Maslenjak argues that this interpretation would reduce naturalization to “second-class citizenship” and conflicts with Supreme Court precedent putting an end to conditional citizenship. Weil’s book provides a useful historical context for a debate that may shape the court’s decision in Maslenjak’s case.

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