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 […]

The post Academic highlight: The debate over nationwide injunctions appeared first on SCOTUSblog.

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.

The post Academic highlight: The debate over nationwide injunctions appeared first on SCOTUSblog.

from http://www.scotusblog.com

Academic highlight: Telling stories in the Supreme Court

Academic highlight: Telling stories in the Supreme CourtLinda Edwards is a professor at UNLV Boyd School of Law. Among the welter of amicus briefs in Whole Woman’s Health v. Hellerstedt was a brief filed by 112 women lawyers. In it, these women told the world, many for the first time, that they have had an abortion. The brief marks their “coming out” […]

The post Academic highlight: Telling stories in the Supreme Court appeared first on SCOTUSblog.

Academic highlight: Telling stories in the Supreme Court

Linda Edwards is a professor at UNLV Boyd School of Law.

Among the welter of amicus briefs in Whole Woman’s Health v. Hellerstedt was a brief filed by 112 women lawyers. In it, these women told the world, many for the first time, that they have had an abortion. The brief marks their “coming out” to their professional world — a combative, masculine milieu where gender-based vulnerability can be the kiss of death.

But the brief is more than a public disclosure. These women spoke from inside the justices’ own rhetorical circle. As one of the brief’s authors explained, “It’s the Justices’ community—it’s their colleagues and people who have argued before them and former law school classmates and co-clerks.” For instance, a former clerk related her desperate situation after a contraception failure at a time when she “did not have the mental, emotional, or perhaps most importantly, economic resources to have a child.” A litigation partner at a large firm explained how her abortion as a teenager had allowed her to be the first in her family to graduate from high school, let alone become a lawyer. The overarching theme is that without reproductive choice, these women could not have participated fully in the same professional community in which the justices themselves have lived and thrived.

The brief is an example of a “voices brief,” the first new kind of appellate briefing since the iconic “Brandeis brief” in 1908. Voices briefs supplement an appellate record with stories drawn from the lives of strangers to the case. They are often told in the first person (e.g., “I had an abortion when I was a young lawyer, just out of law school and clerking for one of the best known and busiest federal trial judges in the country.”). Because the stories appear for the first time on appeal, they are subject to no evidentiary standards. They are offered instead as legislative (policy) facts, subject to no further testing than any other policy facts in an appellate brief.

Recent years have brought an explosion of voices briefs. Obergefell v. Hodges alone saw a total of 16 (more than 10 percent of the amicus filings in the case). And after the dust had settled in Whole Woman’s Health, 17 briefs had related stories of non-parties (more than 20 percent of that case’s amicus filings). Nor are voices briefs primarily a progressive strategy. In Obergefell and Whole Woman’s Health, voices briefs were roughly evenly submitted on both sides of the case. For deeply personal constitutional issues such as marriage equality and reproductive rights, voices briefs are now de rigueur.

Have these briefs influenced the Supreme Court? The truthful answer is that no one outside the court can really tell. The justices are unlikely to refer directly to voices briefs in their opinions, because controversial sources are not strategically helpful in a public document whose purpose is to justify and persuade. We can only speculate by reading judicial tea leaves.

For example, prior to Planned Parenthood of Southeastern Pennsylvania v. Casey, two voices briefs had been filed on the pro-abortion rights side. The briefs shared grim stories from hundreds of women who had sought illegal abortions out of desperation. Justice Anthony Kennedy’s Casey opinion seemed to echo the pro-abortion rights voices briefs, referring to women’s suffering as too intimate and personal for the state to control. Later, in Gonzales v. Carhart, after the filing of an anti-abortion voices brief on behalf of women who later regretted their abortions, Kennedy wrote, “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” We might wonder to what extent Kennedy’s comments in each case may have been influenced by the voices briefs he had presumably read.

As recently as Obergefell, we may have seen signs of influence. In Obergefell, nine voices briefs were filed in support of marriage equality. The briefs vividly recounted stories of the love, struggle and suffering of committed same-sex couples. The stories explained why marriage is important to them and to their families. They wanted to marry for all the reasons that prompt any couple to want to marry. Those same themes were eloquently reflected in the final paragraph of Kennedy’s deciding opinion:

As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Although the paragraph mentions only the petitioners, it may not be too much of a reach to think that Kennedy had others in mind as well.

Even Justice Antonin Scalia may have been influenced by some of the Obergefell voices briefs, at least the seven filed in opposition to marriage equality. Those briefs told stories from the children of same-sex relationships, relating the harm those children said they suffered. Then, in oral argument, Solicitor General Donald Verrilli maintained that there was no evidence of harm to children. Scalia interrupted him to point out that some of the briefs had contradicted that statement.

Of course, all this speculation is merely that. We are not likely to know whether and how voices briefs may persuade any individual justice in any individual case. But influence is a much larger and more multifaceted concept than simply winning and losing. A brief might influence the legal path the Supreme Court selects to justify that outcome, such as the selection of a standard of review or a governing legal standard. Or it might influence a key policy argument on which the court relies or an assessment of the facts. It might influence the scope of the decision. It might influence the tone in which the opinion is written. Given that the justices sit on the court for many years, a voices brief might influence a future case as well. And even if there is no influence at all, the opportunity to be heard is fundamental to effective government and is most important when the affected citizens do not prevail.

Voices briefs can be powerful, even heart-wrenching, and they may even have some influence, but are they appropriate advocacy? The time has come to ask some tough questions: Are they legally permissible? Theoretically legitimate? How do they compare with non-record sources commonly consulted by appellate courts, including internet explorations performed by judges at their own computers and experiments orchestrated in chambers? Are voices briefs really so different from the policy arguments we have accepted without blinking for over 100 years?

These foundational questions quickly take us into even deeper waters — legal theory, framing, narrative theory and cognitive science. The briefs prompt us to look at constitutional deliberation in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around.

In an article published in the Yale Journal of Law and Feminism, I’ve argued that voices briefs are not as radically new, at least in function, as they first appear. And because they are offered publicly, unlike internet research done privately in chambers, they are less problematic than many other sources that clearly influence today’s Supreme Court. What’s more, cognitive science has shown that, far from introducing bias to a neutral process, voices briefs may be the only way to counter the pre-existing values bias that always accompanies human deliberation. And irrespective of outcome, voices briefs can encourage the court to write opinions that respect and value all sides of an issue, thus modeling better discourse in today’s polarized public square.

Voices briefs do prompt some misgivings. Like all briefing strategies, they can be misused, raising concerns about reliability, relevance, and the role of legislative facts on appeal. The article recognizes these concerns and proposes normative practices to improve reliability and utility.

Constitutional decisions should not be made either by polling citizens or by emotional reactions to tearful stories. Far from it. But neither should we entertain the fantasy that legal decisions can ever be made in a hermetically sealed environment. Especially when the briefs offer perspectives that may be outside the personal and professional experiences of the justices, there is little to lose and much to gain when amicus filers share their stories.

The post Academic highlight: Telling stories in the Supreme Court appeared first on SCOTUSblog.

from http://www.scotusblog.com

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 […]

The post Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument appeared first on SCOTUSblog.

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.

The post Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument appeared first on SCOTUSblog.

from http://www.scotusblog.com

Why justices attend the State of the Union: Two political scientists focus on positivity bias

Why justices attend the State of the Union: Two political scientists focus on positivity biasArticle II of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union.” House Speaker Paul Ryan, a Republican of Wisconsin, has invited President Donald Trump to deliver his first official “State of the Union” address on January 30, 2018. Just as the […]

The post Why justices attend the State of the Union: Two political scientists focus on positivity bias appeared first on SCOTUSblog.

Why justices attend the State of the Union: Two political scientists focus on positivity bias

Article II of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union.” House Speaker Paul Ryan, a Republican of Wisconsin, has invited President Donald Trump to deliver his first official “State of the Union” address on January 30, 2018.

Just as the Constitution does not require a speech by the president (some have sent written messages), the justices of the Supreme Court do not have to show up for the event. There isn’t a time-honored, consistent norm of judicial attendance in American history. As Chief Justice John Roberts said in a 2010 interview, whether to attend is “up to each individual member of the Court.” Why a justice might make that decision – and why a majority of justices may have chosen to go to the past six speeches – is the subject of a recent article published by the Justice System Journal, “Keeping up Appearances: Non-Policy Court Responses to Public Opinion.”

Ryan Williams and Jacob Smith, two political scientists at the University of North Carolina, report empirical evidence suggesting that “the Court thinks attending the State of the Union can help to preserve its long-term legitimacy.”

These findings seem to substantiate the “strategic” model of judicial behavior, which presents the justices “as strategic actors who attempt to transform their policy preferences into law while operating within a system of constraints,” including the court’s institutional support from the president, Congress and the public. As Justice Felix Frankfurter famously noted in his dissent in Baker v. Carr (cited by the authors), “the Court’s authority—possessed of neither purse nor sword—ultimately rests on sustained public confidence in its moral sanction.”

Williams and Smith propose that the “strategic behavior” of the justices is not limited to legal work, such as their written opinions, but also includes their selective engagement in non-legal settings, such as the State of the Union.

Within the parameters of the strategic model, the theory of positivity bias suggests that the public’s “exposure to legitimizing symbols of law and courts” reinforces the perception that courts are apolitical and the public’s “underlying support for the Supreme Court’s legitimacy.” At the State of the Union – “the only regularly scheduled political event in which members of the Supreme Court appear on television” – “the appearance of the justices in their judicial robes, their conspicuous seating apart from members of Congress, and their refusal to participate in the standing ovations, clapping, and cheering that are hallmarks of the address expose the public to legitimizing symbols of the judiciary.”

Using data from 1974 through 2014, Williams and Smith analyzed the attendance of the individual justices in light of a “public opinion” variable. They created this variable by estimating the percentage of people expressing confidence in the Supreme Court one week before the State of the Union through survey questions reported to Gallup and other survey organizations. The authors also included other control variables “related to personal considerations facing the justices,” such as the number of confirmation votes a justice received and the length of tenure of a justice.

Across four logistic regression models, Williams and Smith found that “as the percentage of respondents who expressed a great deal or quite a lot of confidence in the Supreme Court increases, a justice is less likely to attend the State of the Union address.”

Williams and Smith also found an important countervailing measure: Justices are less likely to attend the State of the Union as the House of Representatives, the setting for the address, becomes more polarized. This finding also follows the expectations of the theory of positivity bias because justices do not want to be associated with partisanship, so they avoid polarized environments. Justice Clarence Thomas, who has attended less than a third of his possible State of the Union addresses, has said that he stopped attending because the speeches have “become so partisan and it’s very uncomfortable for a judge to sit there.”

Chief Justice John Roberts has called the State of the Union “a political pep rally.” In contrast to Thomas, though, Roberts maintains a perfect attendance record. Williams and Smith found evidence that chief justices – who “are particularly concerned with public opinion in order to protect the legitimacy of the Court,” according to earlier research — are more likely than associate justices to attend the State of the Union.

Another primary model for explaining judicial action isn’t supported by Williams and Smith’s findings. The “attitudinal” model assumes that justices are not constrained by a need to maintain public legitimacy because “the institutional structure of the American political system affords the Court sufficient insulation from the constraining influences of Congress and the president.” Under this model, justices make non-legal decisions (like attending speeches) for personal, ideological reasons rather than out of general concern about the court’s perceived standing. As a result, justices would be expected to attend speeches given by presidents with whom they agree and to avoid speeches by other presidents. The authors did not find a statistically significant relationship for this effect.

When asked whether the results of the study might be used after January 30, if a majority of the court attends Trump’s address, to infer that the justices are concerned about their own perceived legitimacy, Williams called that “a fair narrative.” “We see as an empirical fact that a majority of justices attend the State of the Union during times in which public confidence is lower,” he continued.

Williams cautioned against drawing hasty inferences from his and Smith’s research. For one thing, the authors did not ask any of the justices about their reasons for attending. “We don’t have a direct connection to the minds of the justices; we can’t provide irrefutable evidence that they attend to try to shore up their legitimacy,” he said.

The authors did provide a quotation from Justice Stephen Breyer, who has attended 95 percent of the State of the Union addresses given during his tenure on the court, in which he explains his plans to attend the 2011 speech in a way that accords with the theory of positivity bias:

I think it’s very, very, very important … for us to show up at that State of the Union, because people today, as you know, are more and more visual. I’d like them to read, but they are visual. And what they see in front of them in that State of the Union is the federal government, every part—the president, the Congress, the cabinet, the military, and I would them to see the judges, too, because federal judges are also part of that government.”

Williams also clarified that he and Smith studied the justices’ perception that attending the speech may increase the public’s sense of their legitimacy. They did not address whether the justices’ attendance in fact does have that effect.

Finally, Williams questioned the predictive powers of the findings given that the current president “has been a vocal critic of rulings on his immigration executive order, has called Ruth Bader Ginsburg ‘an incompetent judge,’ and has made other attacks on the judicial system.”

“Ultimately, our results suggest competing considerations for justices, particularly for an address given in a hyper-partisan environment and by an atypical president,” Williams suggested. “Justices can either attempt to mitigate low public confidence in the institution by participating in a high-profile event and emphasizing the Court’s uniqueness, or they can avoid the address for partisan, ideological, or strategic reasons.”

The post Why justices attend the State of the Union: Two political scientists focus on positivity bias appeared first on SCOTUSblog.

from http://www.scotusblog.com

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 […]

The post Academic highlight: Vázquez and Vladeck on the constitutional right to post-conviction review appeared first on SCOTUSblog.

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.

The post Academic highlight: Vázquez and Vladeck on the constitutional right to post-conviction review appeared first on SCOTUSblog.

from http://www.scotusblog.com

Legal scholarship highlight: Justice Scalia’s textualist legacy

Legal scholarship highlight: Justice Scalia’s textualist legacyJonathan R. Siegel is Professor of Law at George Washington University Law School. The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed […]

The post Legal scholarship highlight: Justice Scalia’s textualist legacy appeared first on SCOTUSblog.

Legal scholarship highlight: Justice Scalia’s textualist legacy

Jonathan R. Siegel is Professor of Law at George Washington University Law School.

The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed that when a court interprets a statute, its job is to implement “legislative intent.” Courts often paid more attention to statutory purpose and legislative history than to statutory text.

Scalia rebelled against these interpretive methods. He believed that when a court interprets a statute, the court’s job is to read the statutory text and do what it says.  Even if what it says is stupid. Even if what it says is not what anybody intended. The text of a statute, Scalia believed, is the law.

In a recent article, I chronicle and assess Scalia’s campaign for “textualism.” In the end, I suggest, Scalia both won and lost. He had tremendous influence over interpretive methodology. But he never convinced the Supreme Court, or federal judges generally, to adopt his textualist ideal that “the text is the law.” In some cases, federal courts still depart from statutory text in order to implement legislative intent or statutory purpose.

The way things used to be

In the period preceding Scalia’s arrival on the Supreme Court, the court used interpretive methods that are almost unimaginable today. It often gave itself up to wholly unrestrained reliance on extratextual considerations, especially legislative history. For example, in 1978, in Monell v. Department of Social Services of City of New York, the court considered whether a municipality is a “person” subject to suit under 42 U.S.C. § 1983. With barely a glance at the statutory text, the court launched into an analysis of legislative history that was so long it had to begin with an overview. The Court devoted 18 pages to recounting congressional debates blow by blow and concluded that Congress “intend[ed]” municipalities to be covered. In Citizens to Preserve Overton Park, Inc. v. Volpe, in 1971, the court made the now-incredible remark that because the legislative history of the statutes at issue was ambiguous, the court would have to look to the statutes themselves to find the legislative intent. Truly, as Scalia later complained, the legal culture was such that “lawyers routinely … ma[d]e no distinction between words in the text of a statute and words in its legislative history.”

Enter Justice Scalia

Scalia started his protests against these interpretive methods modestly. In the 1989 case Blanchard v. Bergeron, he challenged the Supreme Court’s reliance on legislative history, but primarily on the ground that legislative reports are an unreliable guide to legislative intent. He said that committee reports had become “increasingly unreliable evidence of what the voting Members of Congress actually had in mind,” thereby implicitly accepting that a court should care what members of Congress had in mind.

Scalia’s opinions evolved over the next decade and took on a sharper tone. In 1993, in Conroy v. Aniskoff, he said, “The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators.” Scalia crystalized his thoughts into a set of lectures delivered at Princeton in 1995, which later appeared in book form. He complained particularly about reliance on legislative history, but that was merely one detail in the bigger picture. The bigger picture was that “[t]he text is the law, and it is the text that must be observed.”

Scalia employed this textualist philosophy from that point forward. Legislative history always remained a particular sticking point. Even when Scalia joined an opinion, he made a point of refusing to join portions that relied on legislative history — a practice he continued over decades. But more generally, he argued that the goal of statutory interpretation is to implement the meaning of statutory text, not the intent behind the text.

Assessing Scalia’s influence

Scalia’s textualist campaign was tremendously influential. He changed the way courts interpret statutes. His influence is visible in virtually every Supreme Court opinion interpreting statutes today. Consider, for example, the 2010 case Bilski v. Kappos, which tested whether a business method can constitute a patentable “process.” For over a century, courts applied patent law with a rich awareness of the history, policies and background understandings of the patent system, which frequently caused courts to gloss, strain and even depart from the patent statute’s text. In Bilski, however, the Supreme Court simply consulted “dictionary definitions,” “common usage” and the interpretive canon against statutory redundancy. Gone were appeals to history, policy and background understandings. Cases like Bilski are far more common today than cases like Monell or Overton Park.

With regard to legislative history, Scalia’s most particular concern, the Supreme Court still consults it, but in a somewhat apologetic way. Often it adds a disclaimer such as “for those who consider legislative history relevant.” The practice of putting legislative history on a par with statutory text has been repudiated.

Nonetheless, the Supreme Court, and federal courts generally, have never fully accepted Scalia’s textualist ideal that “the text is the law.” Justice Elena Kagan, in a lecture at Harvard Law School, recently said that thanks to Scalia, “we are all textualists now.” Kagan, however, is correct only in a relative sense. We are all textualists now compared with the 1960s and 1970s. It is now generally agreed that when interpreting a statute, a court should start by reading the statutory text and should not lightly depart from the text. But we are not all textualists by Scalia’s definition. There is not general agreement that “the text is the law.” Recent cases show that courts are not committed to following statutory text no matter what.

For example, two years ago in Yates v. United States, the Supreme Court determined that a fish is not a “tangible object” within the meaning of a statutory prohibition against impeding a federal investigation by destroying or concealing “any record, document, or tangible object.” The four-justice plurality observed that the statute in question, the Sarbanes-Oxley Act, was passed primarily to combat financial fraud and held that it did not apply to the case, far removed from its purpose, of a ship’s captain who ordered fish thrown overboard to thwart an investigation into catching undersized fish.

Similarly, in the monumental 2015 case of King v. Burwell, the Supreme Court held that a health-care exchange created by the federal government was an “Exchange established by the State” within the meaning of a provision of the Affordable Care Act that provided subsidies only for health insurance purchased on such an exchange. The statutory text suggested that subsidies were not available in states that had not set up their own health care exchanges, but the court gave the statute a broader reading in light of the essential role that the subsidies played in the overall statutory scheme.

Lower courts also depart from statutory text when the occasion demands. For example, from 2005 to 2008, numerous courts of appeals held (over one fiery textualist dissent) that a provision of the Class Action Fairness Act that allowed certain appeals to be taken “not less than 7 days after” entry of a district court’s order really required such appeals to be taken not more than 7 days after entry of the order. The statutory text was so obviously a drafting error (appeals are always subject to a time limit, not a waiting period) that the courts read it to mean the opposite of what it said.

These and similar cases show that courts do not really believe that “the text is the law” — at least, not always. Scalia’s Supreme Court colleagues did not share his devotion to his textualist ideal. It seems that the newest justice, Justice Neil Gorsuch, may step into Scalia’s textualist role, but the textualist ideal still remains a minority viewpoint.

Why do courts reject the textualist ideal? One reason is that legislatures act generally and in advance, whereas courts encounter statutes at the moment of their application to particular facts. This institutional structure guarantees that legislatures will fail to anticipate everything that statutory text will do and will pass statutes that require courts to deviate from the textualist ideal to reach sound results.

From an advocate’s perspective, the moral is that one must always deploy both textual and extratextual arguments in statutory cases. Advocates should start with the text, no doubt. But they should remember that most judges do not fully embrace the textualist ideal and they should also include extratextual arguments.

Scalia did an important service in recalling attention to the importance of text in statutory interpretation. But other considerations can be important too. There will always be room for debate as to how much judicial gloss on statutory text is permitted, but following statutory text no matter what is not the answer.

The post Legal scholarship highlight: Justice Scalia’s textualist legacy appeared first on SCOTUSblog.

from http://www.scotusblog.com

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 […]

The post Academic highlight: Schwartz on qualified immunity appeared first on SCOTUSblog.

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.

 

The post Academic highlight: Schwartz on qualified immunity appeared first on SCOTUSblog.

from http://www.scotusblog.com

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 […]

The post Academic highlight: Shaw on presidential speech and the courts appeared first on SCOTUSblog.

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.

The post Academic highlight: Shaw on presidential speech and the courts appeared first on SCOTUSblog.

from http://www.scotusblog.com

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,” […]

The post Academic highlight: Weil on denaturalization and the Supreme Court appeared first on SCOTUSblog.

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.

The post Academic highlight: Weil on denaturalization and the Supreme Court appeared first on SCOTUSblog.

from http://www.scotusblog.com

Legal scholarship highlight: Getting to know you – The unifying effects of membership stability

Rachael K. Hinkle is an Assistant Professor of Political Science at the University at Buffalo, SUNY. Morgan Hazelton is an Assistant Professor of Political Science and Law (by Courtesy) at St. Louis University. Michael J. Nelson is an Assistant Professor of Political Science and Affiliate Law Faculty at Pennsylvania State University. In the modern Supreme […]

The post Legal scholarship highlight: Getting to know you – The unifying effects of membership stability appeared first on SCOTUSblog.

Rachael K. Hinkle is an Assistant Professor of Political Science at the University at Buffalo, SUNY. Morgan Hazelton is an Assistant Professor of Political Science and Law (by Courtesy) at St. Louis University. Michael J. Nelson is an Assistant Professor of Political Science and Affiliate Law Faculty at Pennsylvania State University.

In the modern Supreme Court, public disagreement is often the order of the day. The current polarized political environment renders it natural to focus on what divides us rather than on what unites us. We reverse this focus in our research and explore centripetal social forces that draw people together. Specifically, we provide empirical evidence that increased interpersonal interaction between judges leads to greater consensus on federal appellate courts, even the Supreme Court.

Despite the old adage that familiarity breeds contempt, there is reason to believe that people who spend time together develop relationships that facilitate cooperation, compromise and agreement. Research indicates that early 19th-century legislators who both lived and worked together were more likely to reach consensus, even across party lines. Even Chief Justice John Marshall believed in the salutary effects of such an arrangement. According to G. Edward White, between 1815 and 1830 Marshall organized boardinghouse accommodations for the justices each year and ensured that all the justices stayed there together during the Supreme Court term. In a 1931 letter to Justice Joseph Story, Marshall explained his concern that geographic dispersal would undermine the unanimity of the court’s decisions. The data from Supreme Court terms during the relevant time period bear out this concern. As Figure 1 shows, dissenting votes decreased markedly in the 1816 term, after the justices began their new living arrangements. Conversely, dissenting votes spiked, and then began an increasing trend upward, in 1830, the final year that the justices lived together.

Figure 1: Dissenting votes in the U.S. Supreme Court during the 19th century

Although the age of the boardinghouse is long past, the spirit of the tradition lives on. Modern justices spend time together outside of work in many settings, including meals, social events and governmental functions. And, like Marshall, the justices believe that these experiences are important to the functioning of the court: Speaking about the role of food in the court’s history, Justice Ruth Bader Ginsburg referenced the boardinghouse era and noted the historical effectiveness of shared meals and lodging for fostering unanimity. The justices’ clerks also benefit from this experience. A former Supreme Court clerk who was initially skeptical about weekly happy hours wrote:

As things get busier and the amount of tension in the building increases, these happy hours serve as weekly reminders that, in fact, everyone still likes each other. No doubt, clerks continue to disagree — just like the Justices sometimes disagree. But the clerks disagree as colleagues, not enemies. […] Everyone is able to work together. The fact that every week, without fail, the clerks meet together in a social setting helps them get the job done at the end of the year when everyone is tired, stressed, and a little cranky.

These anecdotal accounts of court life, both past and present, suggest that justices (and appellate judges more broadly) may be less likely to dissent under conditions that facilitate closer relationships with their colleagues. Our research empirically examines how collegiality affects judicial consensus both in the Supreme Court and on the U.S. courts of appeals. We measure this effect by quantifying the duration and frequency of contacts between two judges. We hypothesize that a judge will be less likely to dissent from a majority opinion written by another judge when those two judges have had more extensive interactions. Federal circuit judges’ interactions vary quite a bit, but those of Supreme Court justices remain relatively stable. They all work in the same building and (mostly) hear the same cases. The length of time two justices have served together on the court necessarily varies over time, and some justices serve as long as three decades together. Analyzing the justices’ opinions in relation to the length of time they have spent together on the bench provides a way to explore whether any vestiges of the “boardinghouse effect” persist in an age of rising partisanship and polarization.

An increase in cotenure – the number of terms that two justices serve together on the Supreme court – should reduce the likelihood of dissent for at least two reasons. First, justices may suppress their dissent, signing on to a majority opinion they might otherwise dissent from because the social costs of a dissenting opinion outweigh the expressive benefits of publicly stating one’s dissatisfaction. Second, as two justices serve together for longer periods of time, their shared familiarity increases their ability to reach agreement. They gain a large store of information about each other’s likes and dislikes, knowing what their colleagues are likely to think on the issues that come before the court and, more importantly, what arguments and counterarguments are likely to sway them. In this sense, increased cotenure reduces the need to dissent because the potential dissenter is able to bargain with the opinion author, nudging the majority opinion toward her preferences.

An example of the voting behavior of two justices illustrates our theory. Chief Justice William Rehnquist and Justice Ginsburg sat together on the court for a relatively short period, just over a decade. Yet their dissenting behavior towards one another changed substantially from the first two years they shared on the bench to their last two years serving together. In the early years, Rehnquist dissented from 41 percent of Ginsburg’s majority opinions, and she dissented from 36 percent of his majority opinions. Yet in these justices’ final two years together those numbers fell to 24 percent and 25 percent respectively. The years did not erase the fundamental disagreements between Rehnquist and Ginsburg, but they do appear to have dampened their effect.

We estimated a statistical model of Supreme Court cases from 1955 to 2008 to test our theory more rigorously. A similar pattern emerges, even after controlling for other factors that influence the decision to dissent. Most importantly, we account for the relative ideological views of two justices (using Martin-Quinn scores). One might think that for two similarly minded justices, the passage of time may have little effect simply because they are very likely to agree from day one. Interestingly, such a conditional effect does not emerge. Increased time on the bench significantly decreases the probability of dissent both for pairs of justices with relatively similar political preferences and for pairs with fairly divergent views. These effects are illustrated in Figure 2. The solid red line shows that the probability that a judge dissents from an ideologically disparate colleague is always higher than the probability of dissenting from an ideologically similar colleague (the black line). Serving more years together on the court dampens the probability of dissent a similar amount in both instances. The size of the cotenure effect is somewhat moderate. A justice who has served with the majority opinion author for 30 years is about five percent less likely to dissent than he would be in his first year of service with the majority opinion author.

Figure 2: The effect of cotenure on the decision to dissent

The U.S. courts of appeals offer the opportunity to test more nuanced implications of our theory. In addition to cotenure, we measure variation in interpersonal interactions based on whether two circuit judges work in the same city or serve in a smaller circuit, where they are more likely to serve on a panel with any given colleague. As we hypothesize, these factors affect a circuit judge’s willingness to express dissent publicly. Judges who work in the same city, who have been on the circuit together longer and who have a higher probability of serving on the next panel with a colleague are all significantly less likely to dissent. Moreover, in this context, we find that such effects are conditioned by ideology. The extent of interpersonal interaction has a more substantial impact when two judges’ divergent ideology makes them particularly likely to disagree. In fact, the evidence indicates that in some cases the impact of increased collegial contact can even render the impact of ideology irrelevant to the decision to dissent. For example, the ideological distance between two judges is not a significant predictor of dissent when two judges have their chambers in the same city.

In short, our results suggest that the institution that stays together decides together. Elected officials are motivated to place relatively young justices on the Supreme Court to maximize their impact on the court’s jurisprudence. This move has the unintended consequence of leading to greater membership stability. Our research indicates that this stability can generate increased consensus over time, even between pairs of justices placed on the court by diametrically opposed political regimes. The primary factor that changes between two justices over time is how well they know each other. This suggests that our findings also indicate the importance of the many meals and other social events justices share over the course of each term. Although suggesting a return to the boardinghouse days of Chief Justice Marshall is hardly practical, there may be a good reason for the justices to linger over dessert or crack open another bottle of wine.

The post Legal scholarship highlight: Getting to know you – The unifying effects of membership stability appeared first on SCOTUSblog.

from http://www.scotusblog.com