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

Legal scholarship highlight: Justice, interrupted – Gender, ideology and seniority at the Supreme Court

Tonja Jacobi is a professor at Northwestern Pritzker School of Law. Dylan Schweers is a J.D. candidate at Northwestern Pritzker School of Law. Are men and women equal at the Supreme Court? The Supreme Court bench remained an exclusively male domain for almost two centuries, and even now only four of the 112 justices have […]

The post Legal scholarship highlight: Justice, interrupted – Gender, ideology and seniority at the Supreme Court appeared first on SCOTUSblog.

Tonja Jacobi is a professor at Northwestern Pritzker School of Law. Dylan Schweers is a J.D. candidate at Northwestern Pritzker School of Law.

Are men and women equal at the Supreme Court? The Supreme Court bench remained an exclusively male domain for almost two centuries, and even now only four of the 112 justices have been female. Now three female justices sit on the bench, suggesting that gender equality on the court is suddenly within reach. But equality is not just a question of representation – our new research shows that even when women become justices of the Supreme Court, they are given less respect than the male justices give one another, and receive less deference from male advocates.

Our empirical study examines interruptions among justices, and between the justices and the advocates, during Supreme Court oral arguments. It shows that women still do not have an equal opportunity to be heard on the highest court in the land. In fact, as more women join the court, the reaction of the male justices and the male advocates has been to increase their interruptions of the female justices.

For example, in the 2015 term, Justice Elena Kagan was interrupted ten times or more each by Chief Justice John Roberts and by Justices Samuel Alito and Anthony Kennedy. Justice Sonia Sotomayor was interrupted 15 times by Kennedy, 14 times by Alito and 12 times by Roberts. Kennedy also interrupted Justice Ruth Bader Ginsburg 11 times. Only two male justices suffered interruption by another justice at the double-digit level, despite there being twice as many men as women on the court. The most any woman interrupted any individual male justice during that term was seven times.

Such behavior matters beyond simple rudeness: Oral arguments shape case outcomes. This pattern of gender disparity in interruptions could create a marked difference in the relative degree of influence between the male and female justices. Furthermore, oral arguments serve other purposes, including: focusing the justices’ minds, helping them gather information to reach decisions as close as possible to their desired outcomes, and providing an opportunity to communicate and persuade their colleagues. When a justice is interrupted, her point is left unaddressed, and her ability to influence the outcome of a case or the framing of another justice’s reasoning is undermined.

Psychological and linguistic research has long shown that gender plays a significant role in interruptions. In groups or one-on-one conversations, in social or professional contexts, women are disproportionately interrupted, by both men and women. This is not because women are more talkative (a common misconception): Men actually talk more than women (and our data confirms this for the Supreme Court). Those who study the phenomenon regard interruptions as assertions of power through verbal dominance. But that should mean that women in positions of power are interrupted less – and there are few more powerful positions than being a Supreme Court justice. Yet the female justices are just like other women: talked over by their male colleagues.

The 2015 term marked the apex of inter-justice interruptions, but it was not an outlier. In the last 12 years, when women made up on average 24 percent of the bench, 32 percent of interruptions were of the female justices, yet only 4 percent of interruptions were by the female justices. That means each woman was interrupted on average three times more often than each of her male colleagues.

These results are not limited to the Roberts court. We conducted an in-depth analysis of the 1990, 2002 and 2015 terms, to see whether the same patterns held when there were fewer female justices on the court. We found a consistently gendered pattern: In 1990, with one woman on the court (Justice Sandra Day O’Connor), 35.7 percent of interruptions were directed at her; in 2002, 45.3 percent were directed at the two female justices; in 2015, 65.9 percent of all interruptions on the court were directed at the three women on the bench.

Figure 1 shows the division of interruptions in those terms. Even without adjusting for the low representation of women, the effect is stark. On average, women constituted 22 percent of the court, yet 52 percent of interruptions were directed at them. Overwhelmingly, it was men doing the interrupting: Women interrupted only 15 percent of the time and men interrupted 85 percent of the time, more than their 78 percent representation on the court.

Figure 1: Gender of interruptee and interrupter, 1990, 2002, 2015 terms

Male justices are not the only individuals who interrupt the female justices at disproportional rates. Despite strict rules mandating that advocates stop talking immediately when a justice begins speaking, interruptions by male advocates account for approximately ten percent of all interruptions during this period; interruptions by female advocates account for approximately zero percent. With more women on the court, the situation only seems to be getting worse. In 2015, male advocates interrupting Sotomayor were the most common interruptions on the bench, and accounted for eight percent of all interruptions.

We found that the power dynamic does not only affect women: In a court that has been dominated by Republican appointees for over half a century, conservative justices have also dominated liberal justices by interrupting them. We expected cross-ideological interruptions to occur more often than interruptions within ideological camps, and this is true: 62 percent of interruptions cross ideological lines, compared to 38 percent within an ideological camp. However, the effect does not go in both directions: 70 percent of interruptions were of liberals, and only 30 percent of conservatives. Once again, advocates display the same tendency. Advocates interrupting the liberal justices account for over ten percent of interruptions, yet advocate interruptions of the conservative justices account for less than three percent of interruptions.

We also considered the possibility that the apparent gender effect may simply be a product of seniority, because two of the three female justices – Kagan and Sotomayor – are very junior and each is interrupted more frequently than the more senior Ginsburg. Senior justices do interrupt junior justices more frequently than vice versa, and the difference is statistically significant. However, there is no comparison in the size of the effect between seniority on one hand and gender and ideology on the other: Gender is approximately 30 times more influential than seniority.

But that does not mean that the length of a justice’s tenure on the court does not matter. Time on the court gives women a chance to learn how to avoid being interrupted – by talking more like men. Early in their tenures, female justices display a tendency to frame questions politely, using prefatory words such as “may I ask…”, “can I ask…”, “excuse me” or beginning with the advocate’s name. This provides an opportunity for another justice to jump in before the female justice gets to the substance of her question. We found that women gradually learn to set aside such politeness. Figure 2 illustrates the rate at which various justices use these framing words and phrases over time.

Figure 2: Frequency of select justices using polite words

Three of the four women who have served on the court show clear downward trends in their use of polite phrasing. Very few of the men show similar patterns – most male justices look like Kennedy and Alito, with flat slopes that indicate little change in behavior. Furthermore, as women adapt their behavior, their rates of polite language usage approach those of men, but do not always reach the low levels at which many male justices start off. For instance, after more than 30 years on the Court, Ginsburg still uses polite language more than either Kennedy or Alito did immediately upon joining the court. Reducing use of polite phrasing does not entirely prevent interruptions: Women continue to be interrupted more than men, and Sotomayor is interrupted despite minimal use of this language. But both O’Connor and Ginsburg were interrupted less over time, even as interruptions increased. This suggests that Kagan would be wise to continue absorbing the lesson that her more senior female colleagues have learned.

Women changing their questioning techniques is not the only possible solution to this problem. The chief justice could play a larger role as referee. The chief justice should enforce the existing rule that prohibits advocates from interrupting the justices. This would set an example for the advocates, the public watching or listening to the arguments, and quite possibly even the other justices.

The chief justice could also be more assertive in preventing an interrupting justice from continuing with his question, by directing the advocate back to the interruptee. Roberts does this occasionally, but sometimes he gives the floor to the interrupter instead of the interruptee. If he were more aware of the gender and ideological imbalance of interruptions, he would likely be more evenhanded. Research like ours has the potential to open the eyes of the justices to what are probably subconscious biases.

The post Legal scholarship highlight: Justice, interrupted – Gender, ideology and seniority at the Supreme Court appeared first on SCOTUSblog.

from http://www.scotusblog.com

Legal scholarship highlight: The Supreme Court, the media and public opinion

Legal scholarship highlight: The Supreme Court, the media and public opinionKaterina Linos is a professor at UC Berkeley Law School. Kimberly Twist is an assistant professor of political science at San Diego State University. Does the Supreme Court, the most trusted branch of the federal government, influence ordinary Americans’ opinions? When the Supreme Court upholds same-sex marriage, Obamacare or controversial immigration restrictions, does it increase […]

The post Legal scholarship highlight: The Supreme Court, the media and public opinion appeared first on SCOTUSblog.

Legal scholarship highlight: The Supreme Court, the media and public opinion

Katerina Linos is a professor at UC Berkeley Law School. Kimberly Twist is an assistant professor of political science at San Diego State University.

Does the Supreme Court, the most trusted branch of the federal government, influence ordinary Americans’ opinions? When the Supreme Court upholds same-sex marriage, Obamacare or controversial immigration restrictions, does it increase public support for these policies? The answers to these questions are vitally important, because they shape the legitimacy of the court and the likelihood that court decisions will meet political resistance.

If Americans take cues from Supreme Court rulings when forming or updating their opinions on policy, this would suggest that initially unpopular policies may gain widespread public acceptance if they come before the court and are upheld. Exerting this kind of influence would enable the court to function as a “Republican schoolmaster” and as a vehicle for social change, as scholars from Robert Dahl in 1957 to Nate Persily in 2013 have suggested. Court decisions are less likely to be resisted by bureaucrats and politicians if those decisions are supported by a majority of the American public. Legal scholars have argued that this in turn could allow for greater judicial independence and for an effective system of checks and balances in American politics.

If Americans do not respond to court rulings, however, each of these possibilities is, at best, a “hollow hope.” And indeed, many believe that the court is both counter-majoritarian – because unelected justices review the actions of popularly elected politicians – and unresponsive to shifts in public opinion.

Existing scholarship on whether the Supreme Court can actually affect public opinion is extensive, but divided. Our study overcomes measurement issues that prior work faced: The biggest problem has been a lack of survey data from just before and after court rulings. Researchers have, in the past, needed to rely on data collected months or years on either side of court decisions. This has made causal claims difficult, if not impossible, as changes in opinion could be due to court rulings or to dozens of other intervening events.

Substantively, the work on the court and public opinion has overlooked a major actor: the media. How newspapers, television programs and Internet sources translate and disseminate court decisions is a critical question. Unlike the president or members of Congress, Supreme Court justices do not hire publicists to reduce their opinions to soundbites, nor do they buy advertisements to spread messages widely. Instead, Supreme Court justices write long and technical opinions, which then must be interpreted and distilled for public consumption by the media. Indeed, research on the Supreme Court has called the media, and, in particular, television, the “most critical conduit” by which the American public learns about the court’s actions.

In a recent article published in the Journal of Legal Studies, we conducted studies of public opinion before and after two major 2012 Supreme Court rulings: National Federation of Independent Business v. Sebelius and Arizona v. United States. In the first ruling, the court upheld the most controversial Obamacare provision – the individual mandate – while striking down other parts of the law, such as Medicare expansion. In the second ruling, the court upheld the most controversial provision of Arizona’s restrictive immigration law – the “show-your-papers provision” – while striking down other important provisions. We surveyed a nationally representative sample of 1,000 respondents in May 2012, right before the decisions were released, and re-interviewed these respondents in the days following the June 2012 court rulings. We asked all respondents about their level of support for or opposition to the relevant provision for that study: For health care, we asked whether federal legislation should require all Americans to purchase health insurance, and for immigration, whether state laws should require police to investigate a person’s immigration status during a traffic stop (given “reasonable suspicion” that person was in the United States unlawfully).

Before asking for the respondents’ opinions during the second survey in June, we randomly assigned respondents to receive either no further information about the ruling, or one of three experimental treatment messages: 1) that the court had upheld the individual mandate (or the “show-your-papers” provision); 2) the first message, plus an argument from the court’s majority opinion; or 3) the second message, plus an argument from the court’s health-care dissent or immigration concurrence.

In addition, to evaluate the effects of real-world media exposure, student coders classified the evening news transcripts from six networks (ABC, CBS, NBC, CNN, Fox News and MSNBC) on the days of the health care and immigration rulings. We identified commonly-used frames in these transcripts, such as reporters discussing the individual mandate as a tax or talking about the potential for racial profiling in Arizona, and, based on the coders’ reports, tagged each as either positive (supportive of the court ruling), negative (critical of the court ruling), or neutral. Using a survey question about news attentiveness and the television news programs watched by respondents, paired with our content analysis of the evening news programs, we then categorized respondents based on the messages they received from our study and from their real-world news sources – no news, uncritical coverage of the court ruling, or critical coverage of the court ruling.

Through the combination of experimental data and content analysis of television news, we were able not only to explore how the media cover court rulings, but also to analyze the effects that media outlets’ translations of court decisions have on public opinion. First, we found that journalists are unusually deferential to the Supreme Court. Whereas two-sided coverage of executive and legislative decisions is fundamental to journalistic ethics, one-sided coverage of court decisions is surprisingly common. Journalists often present only the frame chosen by the court majority, and ignore the frame chosen by dissenting justices.

Even partisan networks, such as Fox News and MSNBC, did not choose to devote all of their time to criticisms of court decisions with which they vehemently disagreed (such as MSNBC on the “show-your-papers” provision and Fox News on the individual mandate). Instead, we saw reporting based on the court majority’s opinion mixed with criticisms of the decision. Fox News and MSNBC opted for more heavily one-sided coverage when they agreed with the court’s decision. The other four networks (ABC, CBS, NBC and CNN) consistently presented the court’s ruling alongside mostly positive arguments from politicians.

Second, we found that ordinary Americans will only change their minds when they are exposed to one-sided coverage of court decisions. We found large and significant shifts both when viewers received one-sided messages from the news programs they typically watch, and when we randomly exposed a representative sample of Americans to a one-sided message. This finding suggests that a court decision upholding a particular policy can increase the level of public support for that policy. The one exception to this finding concerned Latino respondents, who consistently showed lower levels of support for the “show-your-papers” provision after the court ruling.

Two-sided coverage, which discussed both the frame used by the court majority and that used by the dissent (or, in the case of the immigration ruling, the concurrence), reduced the impact of the court decision on opinion change. After hearing a mix of positive and critical coverage, these respondents were likely to keep their original views of the individual mandate and the “show-your-papers” provision.

We found that the Supreme Court can shift Americans’ views – and did in fact significantly increase the popularity of the individual mandate. This effect, however, is driven by one-sided media coverage – by a choice media outlets often make to treat Supreme Court decisions with far more deference than they treat presidential and congressional choices. Given sufficient media coverage for a particular court case, this choice on the part of the media means the court does have the ability to lead public opinion.

The post Legal scholarship highlight: The Supreme Court, the media and public opinion appeared first on SCOTUSblog.

from http://www.scotusblog.com

Academic highlight: Bray on reforming the national injunction

Academic highlight: Bray on reforming the national injunctionShould a single district court judge issue a nationwide injunction against the federal government? That question was front and center in the aftermath of the Supreme Court’s tie vote in United States v. Texas, which left in place a nationwide preliminary injunction barring the Obama administration from granting a temporary reprieve from removal to certain unauthorized immigrants. Would-be beneficiaries […]

Academic highlight: Bray on reforming the national injunction

Should a single district court judge issue a nationwide injunction against the federal government? That question was front and center in the aftermath of the Supreme Court’s tie vote in United States v. Texas, which left in place a nationwide preliminary injunction barring the Obama administration from granting a temporary reprieve from removal to certain unauthorized immigrants. Would-be beneficiaries of President Barack Obama’s initiative have filed lawsuits in Illinois and New York, arguing that the injunction should not apply outside the states that were parties to the lawsuit. The propriety of nationwide injunctions has come up recently in other contexts as well. Over the past few months, district courts have issued nationwide injunctions barring implementation of the Labor Department’s “persuader rule” and the Education Department’s transgender bathroom policy. Did these courts overstep their bounds?

In a new paper, UCLA School of Law professor Samuel Bray examines the history of nationwide injunctions, as well as their costs and benefits. He concludes with a sensible proposal for limiting such injunctions and argues that the Supreme Court has both the power to impose such a rule and the incentive to do so to ensure that legal issues have a chance to percolate in the courts of appeal.

Bray’s research shows that nationwide injunctions have a weak historical pedigree. The conventional wisdom is that federal courts have the power to issue national injunctions because their decisions bind the parties, and thus are not limited by geography. Historically, however, injunctions restrained the defendant’s conduct vis-à-vis the plaintiff, not the world, and Bray has found that nationwide injunctions did not become commonplace until the latter half of the 20th century.

As Bray explains, nationwide injunctions raise a number of concerns: They encourage forum-shopping, as undoubtedly occurred in United States v. Texas (Judge Andrew Hanen was on record in a previous case as critiquing the Obama administration’s immigration policies); they allow one judge to derail a federal program, delaying that program’s implementation for months or years – long enough at times to wait out a change in administration; and they arrest the development of the law – a problem that should particularly concern the Supreme Court, which prefers to hear and decide cases after they have percolated in the lower courts.

Furthermore, federal district courts could issue conflicting nationwide injunctions, leaving the parties (and all citizens) uncertain about what rule to follow. This possibility is particularly worrisome when, as is currently the case, the Supreme Court has an even number of justices, increasing the likelihood that a case asking the court to resolve a conflict between inconsistent injunctions could end in an inconclusive tie. Although Bray thinks that this “doomsday scenario” is unlikely, it is easy to imagine in the wake of United States v. Texas.

Bray notes that nationwide injunctions do have some benefits, such as promoting uniformity. If Hanen had limited the scope of his injunction to the 26 states that challenged the Obama administration’s immigration initiative, the resulting patchwork implementation would have treated similarly-situated people differently depending on where they lived. In addition, the plaintiffs in United States v. Texas argued that a nationwide injunction was necessary to prevent unauthorized immigrants from obtaining protection from removal in states that supported the Obama program and then moving to one of the plaintiff states.

Bray concludes that the costs of nationwide injunctions outweigh these benefits. He proposes a new principle: In cases involving a federal defendant, district courts should be limited to granting a “plaintiff-protective injunction” that controls the defendant’s conduct only with respect to the plaintiff. The Supreme Court or Congress could establish such a rule. Alternatively, the court could adopt narrower rules – such as heightening the standard of review for nationwide injunctions and requiring that district courts draft their own injunctions rather than adopting the plaintiffs’ versions – which would also limit the practice.

Finally, Bray notes that one’s views on nationwide injunctions should not turn on party affiliation or ideological preferences. Today, Texas district courts are issuing nationwide injunctions halting Obama’s initiatives, but in the past, California’s district courts used the same tool against President George W. Bush, and in the future, they may use it against President Donald Trump. The potential for ideological forum-shopping is perhaps the best reason for restricting nationwide injunctions going forward.

from http://www.scotusblog.com

Legal scholarship highlight: The Amicus Machine

Legal scholarship highlight: The Amicus MachineAllison Orr Larsen is a Professor of Law and Neal Devins is the Sandra Day O’Connor Professor of Law at William & Mary Law School. We are living in the age of the Supreme Court amicus. Last term, amici curiae, or “friends of the court,” filed 863 briefs at the court – an average of […]

Legal scholarship highlight: The Amicus Machine

Allison Orr Larsen is a Professor of Law and Neal Devins is the Sandra Day O’Connor Professor of Law at William & Mary Law School.

We are living in the age of the Supreme Court amicus. Last term, amici curiae, or “friends of the court,” filed 863 briefs at the court – an average of 13 per case argued – and the justices cited these briefs in 54 percent of the cases they decided. This is the new normal. Over the past six terms, as Anthony Franze and R. Reed Anderson have shown, approximately 800 amicus briefs were filed in 93-98 percent of all cases, with marquee end-of-June cases attracting briefs in the triple digits. That is over an 800-percent increase in submissions from the 1950s and a 95-percent increase from 1995. Although nobody can say for sure whether these briefs actually change case outcomes, it is clear that the justices are citing them regularly and that there are more and more “friendly” briefs from which to choose. The amicus growth spurt is significant and shows no sign of slowing down.

The real surprise, however, is the story behind the scenes – a story that amplifies fundamental changes in both lawyering before the Supreme Court and, more significantly, Supreme Court decision-making. We tell this story in our forthcoming Virginia Law Review article, “The Amicus Machine.” After interviewing over two dozen Supreme Court advocates, we offer a new description of the origin of many amicus briefs today. The prevalent account portrays motivated interest groups urging their policy positions on the justices in much the same way they lobby Congress. But even though the rise of amicus filings is partially linked to interest-group activity, the most notable aspect of the growth and, in particular, the influence of amicus filings is the dramatic spike in activity by the so-called Supreme Court bar. Today, elite, top-notch lawyers help shape the court’s docket by asking other elite lawyers to file amicus briefs supporting their petitions for certiorari. When the court takes a case, these same lawyers strategize about which voices they want the court to hear, and they assign the chosen groups to other Supreme Court specialists, who craft amicus briefs designed to bolster their chances of victory.

The end result is orchestrated and intentional. Skilled advocates find the arguments that matter, the clients that matter, and the lawyers that matter – and then they match them up and package them for the justices. A successful venture at the Supreme Court, in other words, requires a sophisticated amicus strategy. Specifically, as experienced Supreme Court practitioner Pam Karlan helpfully puts it, a good Supreme Court advocate needs both an “amicus wrangler” (someone to recruit the right amici) and an “amicus whisperer” (someone to coordinate the message). Take, for example, King v. Burwell, last year’s high-stakes decision about the Affordable Care Act. Breaking from tradition, the government used an outside member of the private Supreme Court bar to recruit and coordinate amicus briefs in support of its case. These amicus efforts (which journalist Linda Greenhouse says “were no accident”) made a real difference: Chief Justice John Roberts cited two pro-government briefs in his opinion for the court, including one (filed on behalf of economists) on which he appeared to place substantial reliance.

Examples like this abound. Many will recall the amicus briefs filed on behalf of military leaders and corporations in the 2003 affirmative action case Grutter v. Bollinger. Justice Sandra Day O’Connor cited these briefs in her opinion for the court, referenced them in her oral bench statement when the decision was announced, and referred to one of them several times during the oral argument as the “Carter Phillips brief,” apparently alluding to the lawyer who helped draft it. Similarly and more recently, five justices repeatedly asked the advocates in Hollingsworth v. Perry, one of the court’s same-sex marriage cases, about standing arguments pressed by “the Dellinger brief” – referring to Walter Dellinger, another prominent Supreme Court expert.

These briefs were not organically developed by concerned interest groups who saw the case as an opportunity to press their policy positions. They were instead the product of targeted recruitment and design by Supreme Court experts. The fingerprints of experts like these can also be seen on other influential amicus briefs, such as the brief cited in the court’s opinion in Riley v. California, the 2014 cell phone search case, and the brief discussed at oral argument in Fisher v. University of Texas, the court’s most recent affirmative action case.

Coordinated amicus briefs are not entirely new, but the forces that now make them routine are new, and the cumulative effect of these forces – what we call the “amicus machine” – has so far gone unrecognized. Several modern dynamics keep the machine running. First, as Harvard law professor Richard Lazarus has documented and explained effectively, the rise of the Supreme Court bar over the last several decades has completely changed the nature of Supreme Court advocacy. As the repeat players before the court who comprise the Supreme Court bar solicit briefs from and write briefs for their cohorts, they both enhance their reputations and increase the ranks of other lawyers who help perpetuate the amicus machine.

Second, the court’s new hunger for information outside the record and the unprecedented rise in briefs conveying that information also fuel the amicus machine. Competing expert briefs on factual issues are now mainstream; the conventional wisdom suggests that you cannot win a big case without them. In fact University of Virginia law professor Dick Howard calls the modern array of expert amici an “arms race” between Supreme Court parties. Sophisticated players know they need a strategy to ensure that their chosen expert voices, as opposed to the many competing ones, are appropriately highlighted.

Finally, the modern Supreme Court itself embraces the work of the amicus machine. In their 2014 special report on the Supreme Court bar, Joan Biskupic and her colleagues at Reuters interviewed seven justices, and they learned that the justices prefer a system dominated by Supreme Court specialists who can be counted on for excellent advocacy. The justices look to these specialists’ briefs both for legal theories and for factual evidence, and they cite them at an increasingly high rate. In recent years, the court has also seemed to prefer deciding cases in a way that facilitates the declaration of broad legal rules rather than resolving narrow disputes. Because Supreme Court specialists are experts in identifying ways in which a case is a good or bad vehicle for establishing broad legal principles, the amicus machine helps the court identify which cases to hear and how to rule on those cases.

One’s initial reaction to this amicus machine might well be skepticism. Why should a main informational resource for the justices be filtered through an elite club of specialists? Several scholars and journalists have warned about the power of the Supreme Court bar and the possibility of the court’s docket being captured by an insular, pro-business cadre.

While these worries are significant, our article defends the amicus machine by highlighting several benefits it confers that are often overlooked. Specifically, we note three. First, the machine disperses the credibility interests long held by the solicitor general to a broader group of attorneys outside that office, thus increasing the number of specialists with reputation interests at stake who will avoid submitting unreliable factual information to the court. Second, the machine helps the justices’ law clerks to identify cases that are worthy of the court’s attention, an important function now that circuit splits are less common and reasons for certiorari more nuanced. And finally, the development of the machine complements an evolution in the court’s focus from resolving disputes to enunciating broad legal principles. Supreme Court specialists who understand the types of legal arguments and factual presentations that will be most useful to the justices best serve the objectives of the modern court.

To be sure, the amicus machine has downsides. It is clubby. It is elite. There is a risk that people who can afford the best advocates will get the ear of the justices, and the democracy-enhancing ideal of the amicus will be lost. But, we argue, it is a mistake to focus only on the costs and to overlook the benefits. We push back on claims that the Supreme Court bar is monolithically pro-business and that the specialist lawyers who populate it effectively dictate much of the court’s docket. In an era of infinite information and virtually limitless briefs, coordination efforts by Supreme Court experts are a controlling force on a potentially unruly system. At the end of the day, the amicus machine may be a virtue, and not a vice, of current Supreme Court practice.