Criminal cases in the October 2018 term: A law professor’s dream

Criminal cases in the October 2018 term: A law professor’s dreamApplying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more will be granted in the “long conference” order list to be released September 27.) This is about average: Between a quarter to a […]

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Criminal cases in the October 2018 term: A law professor’s dream

Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more will be granted in the “long conference” order list to be released September 27.) This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases” last month, October Term 2018 might be described as a criminal law professor’s dream.

First-year criminal law: What are the “elements” of burglary and robbery?

This question may take lots of lawyers back to fond, or painful, memories of their 1L law school year. In every criminal case, the prosecution is constitutionally required to prove the “elements” of the crime – that is, the “facts necessary to constitute the crime,” as the court put it in 1970 in In re Winship. “What are the elements of Crime X?” is the stuff of first-year final exams, as well as multiple-choice questions found on the Multistate Bar Exam.

On October 9, the court will spend two hours hearing oral arguments in three cases (two are consolidated) that ask what the “generic” elements of the common law crimes of “robbery” and “burglary” are. The answer to that question is needed in order to apply the Armed Career Criminal Act, a federal law that dramatically enhances prison sentences for persons who unlawfully possess a firearm and who also have been previously convicted of three drug crimes or violent felonies. “Violent felony” is statutorily defined to include the state-law offense of “burglary,” and also any crime that “has as an element the use … or threatened use of physical force,” which normally includes robbery.

The Supreme Court has ruled that because state-law definitions of crimes may differ among the states, federal courts should use the “generic” definition of burglary or robbery. But what that definition is, precisely, has repeatedly split lower federal courts. On October 9, the justices will wrestle with that question, first as it applies to robbery, in Stokeling v. United States, and then, in two consolidated cases, Stitt and Sims v. United States, in the context of burglary.

The common law distinguished robbery from simple theft by requiring an element of force. Over time, a number of jurisdictions have ruled that even minimal force can count, which allows “snatchings” of purses or necklaces to qualify for the enhanced sentences that a robbery conviction often permits. Other jurisdictions disagree. Denard Stokeling was previously convicted under Florida’s robbery law, which defines force as “sufficient to overcome a victim’s resistance.” But should that be the “generic” federal definition? Because the ACCA requires a “categorical” approach to deciding what types of felonies permit its enhanced federal sentences, the court is asked to decide whether “minimal force” suffices and how it should be defined for the national federal statute.

Right after Stokeling, the court will consider similar questions regarding burglary. Although the common law applied the crime of burglary strictly to invasion of homes, most modern statutes have extended the crime to the entry of a “structure” with the intent to commit a crime inside it. (“Intent to commit a felony therein” is the first introduction of many law students to “legalese” that horrifies and amuses their nonlawyer friends.) In Victor Stitt’s home state of Tennessee, the statutory requirement of “habitation” has been interpreted to include vehicles. In Jason Sims’ home state of Arkansas, the statutory term is “residential occupiable structure,” which has been interpreted to include a car or a boat if a person is even occasionally living in it. As in Stokeling, the court here must decide whether the “categorical” definition of burglary should encompass the broad modern definitions that have extended the crime beyond its common-law borders.

All three of these cases may be further influenced by the fact that the proper interpretation of the ACCA has troubled the court for decades now, so much so that in 2015, in Johnson v. United States, the court declared a nearby definitional subsection of the statute invalid as unconstitutionally vague.

“Double jeopardy,” “excessive fines” and the death penalty

After the first year of law school, most law students have to take criminal procedure, affectionately shortened to “Crim Pro.” I like to call that class “Constitutional Law III: The Fun Parts!” At least four cases to be argued this fall suggest that OT 2018 will be a joy for us Crim Pro professors as well.

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”

For example, two states may prosecute the same person for a kidnapping-murder in two trials, one after the other, one in each state, and upon conviction impose two independent sentences for the same crime. Similarly, a state may prosecute someone for the same crime that the federal government has already tried the person for, and vice versa: Those of us old enough to recall the 1991 Rodney King police assault case remember the federal government prosecuting the offending officers after they had already been tried and acquitted by the state.

Although there is no lower-court split of authorities on this question, scholars have long criticized this “separate sovereigns” atextual exception to the double jeopardy clause. My guess (and it is only a guess) is that last spring, when the pace of certiorari grants was slow, “textualist” and due-process-oriented justices alike were able to agree to revisit the question this term.

Meanwhile, Timbs v. Indiana will address another persistent question that has appeared on bar exams for years: “[W]hat provisions in the Bill of Rights have not yet been ‘incorporated’ against the States?” “Incorporation” is the legal doctrine developed in the mid-20th century that holds that various protections found in the federal Bill of Rights may also be applied to conduct by the states, by “incorporating” those protections into the “[n]o State shall … deny due process” guarantee of the 14th Amendment. In McDonald v. Chicago, the court in 2010 ruled that the Second Amendment applies against the states, so now only three provisions in the Bill of Rights have not been incorporated. Timbs will address one of these: the “no excessive fines” provision in the Eighth Amendment. (The other two? The grand jury clause, see 1884’s Hurtado v. California, and the Third Amendment’s rule against quartering troops in times of peace, which has never arisen in a Supreme Court case, although lower courts have suggested that it is “incorporated.”)

Timbs now seeks to eliminate that easy Crim Pro exam question. The context is criminal asset forfeiture. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The state trial court ruled that “[w]hile the negative impact of [drug] trafficking … is substantial, … a forfeiture of approximately four times the maximum monetary fine is disproportional” under the Eighth Amendment. The Indiana court of appeals agreed that the excessive fines clause should be applied (incorporated) against the states. But the Indiana Supreme Court reversed, ruling that it would not “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led to a grant of certiorari here.

Finally, another aspect of the Eighth Amendment, the constitutional administration of capital punishment, finds a spot on the Supreme Court’s docket almost every year. This term the court will hear argument in two cases involving the death penalty. On the second day of the term, October 2, in Madison v. Alabama, the court will consider whether the Eighth Amendment permits the execution of a prisoner whose severe and deteriorating medical condition leaves him mentally disabled such that he is unable to remember his offense. Bryan Stevenson, the founder of the Equal Justice Initiative in Alabama, will be arguing for Vernon Madison. The court has previously ruled that the state may not constitutionally execute the mentally insane (Ford v. Wainwright, in 1986) nor the mentally disabled (Atkins v. Virginia, in 2002). But in 2007, in Panetti v. Quarterman, the court declined to set specific standards for evaluating mental competency-to-be-executed claims. Madison provides an opportunity to further develop this constitutional concept. (The 2007 decision was written by Justice Anthony Kennedy, who left the court in July  — whether he will be replaced by October 2 is presently unsettled.)

In a second death penalty case, to be argued on November 6, the court will consider, once again, the appropriate rules for challenging a “method of execution.” In Glossip v. Gross, the court in 2015 issued a lengthy 5-4 decision attempting to set constitutional standards and litigation rules for lower courts to follow when an inmate contends that the method by which the state proposes to execute him is “cruel and unusual.” Glossip also approved “lethal injection” as a generally acceptable method. Russell Bucklew, however, suffers from an unusual medical condition (cavernous hemangioma) that he alleges “makes it very likely that his execution by Missouri’s lethal injection protocol will be gruesome and involve excruciating suffering.” In Bucklew v. Precythe, Bucklew argues that an execution by lethal gas will be far more humane for him, and that Missouri is constitutionally required to use that method instead. Missouri law allows execution by either method, although it has no written protocols for gas executions. The Eighth Circuit twice affirmed denials of Bucklew’s challenges, but the Supreme Court twice issued last-minute stays before finally granting review.

The rest of the Supreme Court’s criminal law docket this term

Here are brief descriptions of the other six criminal-law-or-related cases on the Supreme Court’s docket (so far) this term:

  1. Gundy v. United States (Oct. 2 argument): Does Congress’ delegation of authority to the attorney general to set sex-offender regulations, including deciding whether to retroactively apply the criminal statute, violate the Constitution’s “nondelegation” principle? (There hasn’t been a successful nondelegation case since 1935, so this case carries special interest for constitutional law professors.)
  2. Nielsen v. Preap (Oct. 10 argument): Is a criminal alien exempt from otherwise mandatory detention if, after the person is released from criminal custody, the Department of Homeland Security does not immediately take the person into custody?
  3. Garza v. Idaho (Oct. 30 argument): Does the “presumption of prejudice” regarding a lawyer’s ineffective assistance apply, when a defense lawyer was instructed by the defendant to file an appeal but the lawyer did not file an appeal because the plea agreement contained an appeal waiver?
  4. Herrera v. Wyoming: Did Wyoming’s admission as a state, or the statutory establishment of the Bighorn National Forest, abrogate the Crow Tribe’s 1868 federal treaty right to hunt on “unoccupied lands of the United States,” thereby permitting the criminal conviction of Clayvin Herrera, a Crow Tribe member, who was allegedly engaged in subsistence hunting for his family?
  5. Lorenzo v. Securities and Exchange Commission.: May the government’s securities-fraud claim that does not meet the elements that 2011’s Janus Capital Group v. Derivative Traders requires for “fraudulent statements” be filed as a “fraudulent scheme” claim and thereby avoid the bar of Janus?
  6. Nieves v. Bartlett: Is a First Amendment claim for retaliatory arrest automatically defeated because there was probable cause for the arrest? (This is a follow-on to the unanswered question in last term’s Lozman v. Riviera Beach.)

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Academic highlight: Greenhouse and Siegel on the past, present and future of Roe v. Wade

Academic highlight: Greenhouse and Siegel on the past, present and future of <em>Roe v. Wade</em>The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wade – the standard position of all recent Republican […]

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Academic highlight: Greenhouse and Siegel on the past, present and future of <em>Roe v. Wade</em>

The future of a constitutionally protected right to abortion is uncertain now that Justice Anthony Kennedy has retired from the Supreme Court, leaving a vacancy for President Donald Trump to fill. During the campaign, Trump promised to appoint justices who would vote to overturn Roe v. Wadethe standard position of all recent Republican nominees for president. Members of the Senate Judiciary Committee questioned Judges Neil Gorsuch and Brett Kavanaugh closely on the matter, and many legal scholars have opined that Roe is at risk of either outright reversal or gradual erosion with the addition of a new justice to the bench. At a time when the future is unknown, it is worth considering Roe’s past.

In “The Unfinished Story of Roe v. Wade,” a chapter in the forthcoming book “Reproductive Rights and Justice Stories” (Melissa Murray, Kate Shaw & Reva Siegel eds.), Linda Greenhouse and Reva Siegel provide a fascinating account of the abortion debate before and after Roe that upends some of our basic assumptions about the politics of abortion. Today, Roe is as much a symbol as a legal precedent. For some, the case exemplifies the Supreme Court’s essential role in protecting freedom and equality for those who lack political power. For others, it is a prime example of judicial overreach, and illustrates the backlash that can result when the court inserts itself in politics. But in Greenhouse and Siegel’s account, the focus on Roe v. Wade overstates the court’s role in the abortion debate. They describe how the views of the public, political parties and religious groups shifted both before and after the court’s decision in Roe, and often independent of it. And they explain that many of the battles took place in state legislatures, not before the nine justices.

Although abortion was not a crime at the time of the Constitution’s ratification, by the late 19th century it was criminalized in every state. Even so, by the middle of the 20th century approximately one in four pregnancies ended in an abortion. Upper-class women were able to obtain abortions relatively safely, but the poor could not, and an estimated 10,000 women died from abortions every year.

Alarmed by these statistics, medical providers were the first to call for reform. Not surprisingly, they sought to give doctors, not pregnant women, the power to decide who could obtain an abortion. In 1970, the American Medical Association authorized its members to perform therapeutic abortions, but only in appropriate cases, and they were told not do so in “mere acquiescence to the patient’s demand.” Only in the 1960s did feminists begin to frame the repeal of laws criminalizing abortion as about “freedom,” “equality” and women’s right to exercise control over their bodies and reproduction — the standard rhetoric of -abortion-rights advocates today.

The movement against abortion looked very different in the years before Roe than it does today. Leaders of the Catholic Church mobilized against reform of abortion laws in the late 1960s, but polls showed that more than half of all Catholics disagreed with the church’s official position. The Republican Party before 1972 was not opposed to abortion, nor were evangelicals, and a significant majority of Americans supported abortion. In a Gallup poll taken in August 1972, 64 percent of Americans agreed with the statement that “abortion should be a matter for decision solely between a woman and her physician,” and significantly more Republicans than Democrats took that view (68 percent of Republicans as compared to 59 percent of Democrats).

Despite broad popular support, reforms stalled in the early 1970s. The New York legislature repealed a reform measure it had enacted two years before (though the governor vetoed the repeal), and reform failed to pass in Michigan. Greenhouse and Siegel attribute these losses to “the ability of a mobilized minority, committed to a single issue and institutionally funded and organized, to thwart reforms that have broad public support.” Stymied by the political process, abortion-rights supporters turned to the courts.

The justices were well aware that public support for abortion was growing ever stronger; Justice Harry Blackmun, the author of Roe v. Wade, kept a copy of the 1972 Gallup poll results in his files. Greenhouse and Siegel suggest that such polls may have influenced the court to issue a broader opinion than it otherwise might have. By a 7-2 vote, the court proclaimed a constitutionally protected right to privacy that entitled women to obtain abortions in the first trimester of pregnancy. The court grounded this right in the Ninth and 14th Amendments and derived it from earlier decisions protecting intimate family choices. Yet the court’s opinion relied more on medical evidence and the role of doctors than on women’s autonomy. As Greenhouse and Siegel explain, that rationale is not surprising considering that the decision came in 1973, before the bulk of the court’s jurisprudence protecting women against discrimination based on sex.

Contrary to the conventional view, Greenhouse and Siegel argue that Roe did not produce a public or political backlash — at least, not immediately. Three years after Roe was decided, public support had only grown. In a February 1976 nationwide survey, 67 percent of respondents agreed that the “right of a woman to have an abortion should be left entirely up to the woman and her doctor.” Nor did abortion appear to be a particularly polarizing or significant issue. At his confirmation hearing in 1975, John Paul Stevens was not asked a single question about abortion.

Having lost before the Supreme Court, abortion opponents shifted the fight to Congress and state legislatures. They succeeded in ending Medicaid funding for abortions and obtaining passage of state and federal laws restricting access to abortion. In 1992, in a challenge to such a law in Pennsylvania, the Supreme Court reaffirmed Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, but it abandoned Roe’s trimester framework for an “undue burden” standard permitting states to regulate abortion. Greenhouse and Siegel observe that in Casey, unlike Roe, the court framed its decision around “[r]espect for the equal citizenship of women” — an argument “barely acknowledged” in Roe.

Casey further opened the door to regulation incrementally cutting back on access to abortion, which has been the focus of much of the abortion-related litigation for the last 25 years. Legal experts expect that trend to speed up once a new justice appointed by Trump joins the court. Gillian Metzger, a professor at Columbia Law School, explained that she does not expect to see Roe and Casey reversed immediately, but “incremental pullback” will mean that “in practice it will become even more difficult, and in some states practically impossible, for women to exercise the right recognized in Roe and Casey of making the ultimate choice of whether or not to bear a child.”

Greenhouse and Siegel do not try to predict the future of Roe and Casey, but their historical account demonstrates that the abortion debate has followed a long and winding road. Over the last 60 years, the arguments made for and against access to abortion, the public’s support for those arguments, and even the parties on either side of the issue have shifted significantly. The Supreme Court has played a role, but it has shared influence with many players in the past, and likely will continue to do so. As Greenhouse and Siegel conclude, “[t]hese are conflicts that law can shape—but cannot settle.”

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Government asks justices to act in document dispute in transgender-ban case

Government asks justices to act in document dispute in transgender-ban caseThe federal government today asked the Supreme Court to intervene in a dispute over documents in a lawsuit challenging the ban, announced in 2017, on open service in the U.S. military by transgender Americans. The case came to the Supreme Court from the U.S. District Court for the Western District of Washington, where a federal […]

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Government asks justices to act in document dispute in transgender-ban case

The federal government today asked the Supreme Court to intervene in a dispute over documents in a lawsuit challenging the ban, announced in 2017, on open service in the U.S. military by transgender Americans.

The case came to the Supreme Court from the U.S. District Court for the Western District of Washington, where a federal judge in December 2018 blocked the government from implementing the ban. The district court declined to revisit that ruling after the government argued the case was moot because the original policy had been changed, and the government appealed to the U.S. Court of Appeals for the 9th Circuit, which rejected the government’s request to put the lower-court ruling on hold during the appeal.

The dispute now before the Supreme Court centers on a district-court order that requires the government to create and submit a log of the documents that the government regards as protected from disclosure because they contain communications made directly to the president. Such a “privilege log” would allow the district court to determine whether a document is indeed protected from disclosure by the “presidential communications” privilege and, if so, whether the plaintiffs have demonstrated a sufficient need for the document to trump the privilege. The district court also directed the government to turn over other documents that the government had previously withheld on the ground that they reflected discussions by government officials as part of the government’s decisionmaking process. For both sets of documents, the district court set a deadline of October 10.

The federal government, in a brief signed by U.S. solicitor general Noel Francisco, went to the Supreme Court today, arguing that a 2004 decision by the court in a case involving then-Vice President Dick Cheney “squarely forecloses the burdensome and intrusive discovery obligations” that the district-court order would impose. This is particularly true, the government argues, because the district-court’s ruling that the plaintiffs in the case need access to these documents flows from the court’s ruling on the plaintiffs’ request to block the transgender ban, which the government has appealed.

The government’s request for relief went to Chief Justice John Roberts, who since the retirement of Justice Anthony Kennedy has been responsible for emergency appeals from the 9th Circuit. Roberts could refer the request to the full court or (as he did over the weekend in another case) rule on it alone. And although the government’s brief focused primarily on asking the Supreme Court to block the district-court’s orders on discovery, it also suggested that the court could take broader action, including by agreeing to review the merits of the district-court’s decision blocking the government from implementing the ban. Whatever Roberts and the court decide to do, though, they are likely to act relatively quickly.

This post was originally published at Howe on the Court.

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Enhanced “Constitution Annotated” available from Cornell Legal Information Institute

Enhanced “Constitution Annotated” available from Cornell Legal Information InstituteOn the occasion of Constitution Day, Cornell Law School’s Legal Information Institute today released an enhanced digital version of the “Constitution of the United States of America: Analysis and Interpretation,” often known more simply as the “Constitution Annotated” or “CONAN.” Regularly prepared and updated by the Congressional Research Service of the Library of Congress for […]

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Enhanced “Constitution Annotated” available from Cornell Legal Information Institute

On the occasion of Constitution Day, Cornell Law School’s Legal Information Institute today released an enhanced digital version of the “Constitution of the United States of America: Analysis and Interpretation,” often known more simply as the “Constitution Annotated” or “CONAN.”

Regularly prepared and updated by the Congressional Research Service of the Library of Congress for over 100 years, the “Constitution Annotated” currently provides Congress and the public with analysis of thousands of Supreme Court cases interpreting the Constitution.

The contribution made by the Legal Information Institute – after a group of Cornell Computing and Information Science students developed software to convert the PDF into usable data – is to present this unwieldy 2,882-page document in a reader-friendly format that is clearly navigable.

Importantly, LII has interwoven the document with its many web pages for Supreme Court cases.

For example, the section on the First Amendment features 1,638 footnotes, many to Supreme Court decisions. LII has linked its case pages to these footnotes so that viewing source material for the “Constitution Annotated” requires only a click, not access to the U.S. Reports or other outside materials.

LII began in 1992 by mailing CD-ROMs containing statutes and case law to subscribers. Subsequent versions of its “Constitution Annotated” will further integrate its data with other online resources.

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Chief justice puts donor-disclosure ruling on hold

Chief justice puts donor-disclosure ruling on holdLast month a federal district court invalidated a Federal Election Commission regulation governing when political nonprofit groups, sometimes referred to as “dark money” groups, must disclose their donors. On Friday, one of the groups at the center of the ruling urged the Supreme Court to put the decision on hold, calling the district court’s ruling […]

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Chief justice puts donor-disclosure ruling on hold

Last month a federal district court invalidated a Federal Election Commission regulation governing when political nonprofit groups, sometimes referred to as “dark money” groups, must disclose their donors. On Friday, one of the groups at the center of the ruling urged the Supreme Court to put the decision on hold, calling the district court’s ruling “unprecedented” and its timing – so close to the November elections – “extraordinary.” On Saturday, Chief Justice John Roberts granted the group’s request, allowing the existing regulation to stay in effect for at least the foreseeable future.

The emergency application came from Crossroads Grassroots Policy Strategy, a nonprofit linked to American Crossroads, a “super PAC” started by Karl Rove. The Internal Revenue Service allows groups like Crossroads Grassroots to spend money on elections as long as it is not their “primary purpose.” The FEC has long interpreted federal election laws to require such groups to disclose their donors only when the donors’ contributions were earmarked for a specific “independent expenditure” – communications that expressly urge voters to vote for or against candidates. (The ruling does not affect communications known as “issue ads,” which may discuss policies or candidates but don’t explicitly support or oppose a candidate.)

But U.S. District Judge Beryl Howell rejected the FEC’s interpretation on August 3, concluding that nonprofits like Crossroads Grassroots should be required to disclose any donors who give at least $200 toward any independent expenditures. If allowed to stand, the ruling would be significant: Political nonprofits have spent over $700 million on “independent expenditures” since 2010.

Howell stayed her order for 45 days, but neither Howell nor the U.S. Court of Appeals for the District of Columbia Circuit would further extend the stay, which ends on Monday, September 17. On Friday, Crossroads Grassroots went to the Supreme Court for relief, telling Roberts (who is responsible for emergency appeals from Washington, D.C.) that the FEC regulation had been used in 19 previous elections, “and there is no compelling reason to hastily throw the clear reporting standards it provides to donors and speakers into confusion just prior to a national election.” Roberts could have referred the request to the full court, as justices often do, but instead he opted to act alone, in a brief one-sentence disposition that indicated that the district court’s decision was “stayed pending further order of the undersigned or of the Court.” Roberts’ quick action may have stemmed from a desire to bring clarity to the situation as far in advance of the Monday deadline as possible, but it may also reflect his frustration at the D.C. Circuit’s failure to act on Crossroads Grassroots’ request.

This post was first published at Howe on the Court.

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Six Connecticut judges remember arguments before the U.S. Supreme Court

Six Connecticut judges remember arguments before the U.S. Supreme CourtSix current Connecticut judges argued before the U.S. Supreme Court between 1981 and 1991. Their recollections of those arguments – prepared by Judge Jon Blue of the Connecticut Superior Court for the annual Connecticut Judges Institute – present a portrait of the justices at work in an earlier era. Judge Julia DiCocco Dewey argued before […]

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Six Connecticut judges remember arguments before the U.S. Supreme Court

Six current Connecticut judges argued before the U.S. Supreme Court between 1981 and 1991. Their recollections of those arguments – prepared by Judge Jon Blue of the Connecticut Superior Court for the annual Connecticut Judges Institute – present a portrait of the justices at work in an earlier era.

Judge Julia DiCocco Dewey argued before the court in a Fifth Amendment case about the admissibility of a criminal defendant’s statements when she was about eight months pregnant. She remembers a marshal informing her that a nurse was waiting in the anteroom in case she went into labor. The first argument that day – in Wimberly v. Labor and Industrial Relations Commission of Missouri – happened to address a woman’s claim for unemployment benefits after she was not rehired following her pregnancy leave for lack of an open position. The advocate argued that “pregnancy was an emotional, physical, and mental disability that required preferential treatment,” and Dewey remembers the sense that all of the justices, especially Justice Sandra Day O’Connor, were looking at her throughout the argument. (O’Connor wrote an opinion in Wimberly holding that Congress in the Federal Unemployment Tax Act intended to prohibit states from singling out pregnancy for unfavorable treatment, not to mandate preferential treatment.)

Judge Robert Genuario, who lost the argument against Dewey when the justices ruled that the defendant had voluntarily waived his right to counsel and his statements were therefore admissible, recalls answering questions about the facts from O’Connor, who as second-most junior justice sat on the far left of the bench. He heard a “booming voice,” like “a chain around [his] neck,” “jerking him back to the righthand side of the room.” It was Justice Antonin Scalia, the most junior justice, demanding, “that’s not what happened, counsel, is it?” The argument “went downhill from there.”

Other memories are less reverent: Justice Potter Stewart, who had just quit smoking, chewing rubber bands during oral argument; or Chief Justice Warren Burger, who, rumored to ask at least one “dumb question” every argument, fulfilled that prediction during Little v. Streater, in Blue’s estimation.

The judges and their cases are as follows:

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Empirical SCOTUS: Supreme Court all-stars 2013-2017

Empirical SCOTUS: Supreme Court all-stars 2013-2017Success in the Supreme Court is hard to define because it can be viewed in a variety of ways. Few attorneys have the opportunity to try cases there, and even fewer argue multiple cases. Part of success therefore is simply getting a case or cases to the court. Once the court agrees to hear a […]

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Empirical SCOTUS: Supreme Court all-stars 2013-2017

Success in the Supreme Court is hard to define because it can be viewed in a variety of ways. Few attorneys have the opportunity to try cases there, and even fewer argue multiple cases. Part of success therefore is simply getting a case or cases to the court. Once the court agrees to hear a case, the case’s history comes with it; that is to say, attorneys do not all start with an equal likelihood of winning because often one side’s position is stronger than the other’s at the outset. With this caveat in mind, attorneys often view case outcomes dichotomously – as wins or losses. This post looks at attorneys who have argued cases across the last five Supreme Court terms, from 2013 through 2017. It uses a dataset of attorneys and firms that was merged with the Supreme Court Database and focuses on regular players who have been most successful in terms of case wins.

Participation

To get the lay of the land, the first chart takes a look at the most active attorneys before the Supreme Court in terms of oral arguments between the 2013 and 2017 terms.

Click graph to enlarge.

This figure includes attorneys from the U.S. Office of the Solicitor General. Because OSG is involved in more cases than any other player before the court each term, attorneys from OSG make up half of the attorneys in the figure, with former solicitor general Donald Verrilli leading the way. No private-practice attorney tried more cases than Neal Katyal, who argued four more cases than the next most frequent arguing attorney, Seth Waxman. Along with the OSG attorneys, including veterans Edwin Kneedler and Michael Dreeben, three other elite Supreme Court attorneys make the list – Jeff Fisher, Paul Clement and Tom Goldstein.

When we shrink the timeline to the last two terms, there are some similarities but many differences. This shorter, more recent time frame also helps show who we might expect to argue multiple cases in the terms to come. For this reason, OSG attorneys are removed from this figure.

Click graph to enlarge.

The three top attorneys were also in the list for the previous figure, with Neal Katyal now tied with Paul Clement atop the rest. Along with the other attorneys from the previous figure are five new attorneys. Of these five, former Texas solicitor general Scott Keller is ahead of this pack, with Adam Unikowsky and Kannon Shanmugam close behind. Following Seth Waxman are Colorado solicitor general Frederick Yarger, as well as Josh Rosenkranz and Shay Dvoretzky.

In terms of gender equity in Supreme Court arguments, a topic previously covered in Empirical SCOTUS, these two figures are somewhat alarming. The only female attorney on either figure for most arguments is Ann O’Connell, who argued on behalf of OSG. No female attorneys in private practice had enough oral arguments to make the threshold for these figures. Even with stellar Supreme Court advocates like Lisa Blatt, Kathleen Sullivan and Allyson Ho, the vast majority of argument slots are still filled by male attorneys.

On the law-firm side of things there are strong correlates with the arguing attorneys, but the ordering shifts around because of firms with multiple attorneys who argued cases between the 2013 and 2017 terms. OSG was removed from this figure.

Click graph to enlarge.

Attorneys from WilmerHale argued the most cases during this period, with arguments from Seth Waxman, Danielle Spinelli, Catherine M.A. Carroll, Mark Fleming, Thomas Saunders and Craig Goldblatt. Along with Neal Katyal’s many oral arguments for Hogan Lovells, Catherine Stetson, Dominic Perella and Frederick Liu (now at OSG) also argued cases for that firm. Both Bancroft PLLC and Kirkland & Ellis can attribute multiple arguments to Paul Clement.

Focusing on the last two terms, the impact of Paul Clement’s move to Kirkland is more acute.

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Clement’s new home made Kirkland the most active firm at oral argument these past two terms, with Hogan Lovells and Stanford’s Supreme Court Litigation Clinic coming in the second and third spots. All firms on this list had at least one attorney in the figures for most active attorneys.

Parsing wins

Based on the previous figures, it should be clear that some attorneys are much more active before the Supreme Court than others. With this in mind it seems unfair to focus on aggregate wins as a feature of interest. Instead, this post focuses on wins in certain types of cases, which helps further distinguish particular attorneys and firms from the rest of the pack. To avoid confusion on the winning party in a case, I used the coding from the Supreme Court Database.

One way to separate out attorneys is to look at those who have been successful in cases that came down to close votes. This is also a way to gauge some of the most proficient Supreme Court attorneys. The following figure tracks attorneys who won two or more cases decided by a five-vote majority between the 2013 and 2017 terms.

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Neal Katyal, Paul Clement and Scott Keller each had three wins in closely decided cases. Several other attorneys had two wins in this category, including Elaine Goldenberg and Malcolm Stewart from OSG.

The firms with multiple five-vote majority wins are shown below.

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Neal Kayal’s firm, Hogan Lovells, is atop this figure with four such wins, followed by Gibson Dunn, Kirkland & Ellis, Texas’ S.G.’s office and WilmerHale. Other entities in this figure not yet mentioned in this post are California’s S.G.’s office, the Office of the Federal Defender, Jenner & Block and the National Right to Work Legal Defense Foundation.

Along with justices’ votes, another way to compare attorneys and firms is by the issues involved in the cases they try (The coding for issue is also through the Supreme Court Database.). Because some of the court’s most salient recent decisions, such as Janus v. American Federation of State, County, and Municipal Employees, Council 31 and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, have been in the area of First Amendment rights, this seemed an appropriate place to start.

First, a look at attorneys with the most wins in this area between the 2013 and 2017 terms.

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Only three attorneys have multiple wins in this area across this time period. None of these three – David Cortman, Noel Francisco (who argued cases for Jones Day and as the U.S. solicitor general) or William Messenger – was mentioned in previous figures. Many of the other attorneys who won cases in this area specialize in this type of law, while others, like Deepak Gupta, Erin Murphy and David Frederick, among others, are generally well known for their Supreme Court practices.

The firms with multiple wins in this area track closely to the attorneys at the top.

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The leader in this area, Alliance Defending Freedom, with four wins, had David Cortman as the lead attorney in two of these cases. Next come OSG, Stanford’s Supreme Court Litigation Clinic and the National Right to Work Legal Defense Foundation (where William Messenger works).

Moving to another area with multiple cases before the Supreme Court each term, the next two figures look at attorneys and firms that tried Fourth Amendment cases between the 2013 and 2017 terms.

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Although several attorneys won a single case in this area, none won multiple cases. The list of attorneys includes oral-argument veterans like Charles Rothfeld, Ian Gershengorn and Tom Goldstein, and well as newcomers to the oral argument circuit like Orrick’s Bob Loeb.

Firms that were successful in this area predominantly did not have multiple wins.

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California’s S.G.’s office is the only firm or group with two Fourth Amendment wins across this period, as all other players in these cases, including the United States, amassed a single win apiece. The non-private-law-firm presence in this figure and in the First Amendment firm figure are both in fairly stark contrast to the most frequent attorneys and firms before the court over this time period generally. This hints at the diversity of lawyers trying cases (or defending rulings, in the case of state and federal governmental entities) in these areas.

One other area of interest during the last few terms has been intellectual-property law. With cases ranging from copyright protection in Star Athletica, LLC v. Varsity Brands to patent review in Oil States Energy Services v. Greene’s Energy, the Supreme Court decided many consequential issues in this area over the past five terms, with at least 22 decisions.

A wide group of attorneys were successful in these cases but only two had multiple wins.

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Goodwin Procter’s William Jay won the most such cases since 2013 with three wins, followed by Paul Clement with two. The list of attorneys with one win in this area includes many other prominent Supreme Court attorneys.

The successful firms in this area, not surprisingly, track closely to the successful attorneys.

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William Jay’s firm, Goodwin Procter, was the most successful thanks to Jay’s three argument victories. Aside from OSG and WilmerHale, which each had two wins, all the other firms in this area had one.

Winning percentages

Although winning percentages before the Supreme Court should be taken with a grain of salt, normalizing wins in cases argued provides a way to level the playing field a bit between attorneys with greater and fewer argument opportunities. A threshold was still set of at least four arguments and at least a 50-percent winning percentage in order to focus on a select group of attorneys and firms with notable performances over this five-year period. One caveat to keep in mind is that not all wins are necessarily losses for the opposing party. In many cases in which the court vacates the lower court’s decision, the opposing party is equally satisfied to have the case retried by a lower court with directions from the Supreme Court.

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Only one attorney with at least four arguments over the past five terms had a perfect record. That attorney was Jenner & Block’s Adam Unikowsky, with six wins in six cases: Sveen v. Melin, Artis v. District of Columbia, Kokesh v. Securities and Exchange Commission, Honeycutt v. U.S., Howell v. Howell and Puerto Rico v. Sanchez Valle. William Jay was successful in four of five decisions over this period, while Andrew Pincus, Eric Schnapper and Stephen McAllister were each successful in three of four. Two attorneys also made the list who should be recognized due to the size of their operations. Both John Bursch, who previously served as Michigan’s solicitor general, and Dan Geyser, who worked for the firm Stris & Maher, have also seen success in their small operations since splitting off from somewhat larger entities. Bursch was successful in three of five decisions across both roles and Geyser in two of four.

The top firms and groups before the Supreme Court for this period are somewhat telling of the direction the court is moving.

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The top-performing firm was the Alliance Defending Freedom, which argues in favor of religious freedom, including in last term’s case Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The alliance won all four of its cases before the court during the five-year period. Rounding out the five top-performing firms in terms of winning percentages are Goodwin Procter, Jenner & Block, Perkins Coie and Orrick Herrington. Of those firms, attorneys from Jenner & Block argued the most cases with 18. The firm with the next most among those five is Orrick, with 10 arguments. The firm in this figure with the most arguments, however, is, as previously mentioned, WilmerHale, with 27 – the most for firms in this period.

These statistics provide a way of gauging the most formidable attorneys and firms before the Supreme Court between the 2013 and 2017 terms. The rich data behind these statistics can and likely will be examined along various other dimensions in the near future. As discussed, gauging wins at the Supreme Court is an imperfect art, but it helps distinguish among players in ways that the number of arguments alone cannot. These numbers not only showcase the effectiveness of veteran Supreme Court counsel like Paul Clement and Seth Waxman, but also point to those who may become much more prominent before the Supreme Court in coming years.

This post was originally published at Empirical SCOTUS.

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Kavanaugh responds to post-hearing questions

Kavanaugh responds to post-hearing questionsLast week the Senate Judiciary Committee held a hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy. After the hearing ended, senators submitted written questions – over 1,200 in all – to Kavanaugh, who responded last night. The senators’ questions address everything from Kavanaugh’s reaction when he was approached at the […]

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Kavanaugh responds to post-hearing questions

Last week the Senate Judiciary Committee held a hearing on the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy. After the hearing ended, senators submitted written questions – over 1,200 in all – to Kavanaugh, who responded last night. The senators’ questions address everything from Kavanaugh’s reaction when he was approached at the hearing by the father of a school-shooting victim to Kavanaugh’s personal finances; the questions and Kavanaugh’s responses comprise over 250 pages.

As he had at the hearing, Kavanaugh declined to respond to a number of questions on the ground that the issue “could well come before me in future litigation”; Kavanaugh also repeatedly referred the senators to his previous answers at the hearing regarding, for example, whether he had known in 2002 that a Republican Senate staffer had accessed the email accounts of Democratic Judiciary Committee staffers without their knowledge. Other responses contained more details, however, as Kavanaugh:

  • Stated that, when he used the term “abortion-inducing drugs” at his hearing to discuss his opinion in a challenge by religious nonprofits to the Affordable Care Act’s birth-control mandate, he was “accurately describing the plaintiffs’ position”; he “was not expressing an opinion on whether particular drugs induce abortion.”
  • Explained that, when he was approached by Fred Guttenberg, whose daughter Jaime was killed in the shooting at Marjory Stoneman Douglas High School this year, he “did not recognize” Guttenberg and “assumed he was a protestor.” “In a split second,” Kavanaugh continued, “my security detail intervened and ushered me out of the hearing room.” “If I had known who he was,” Kavanaugh stressed, “I would have shaken his hand, talked to him, and expressed my sympathy. And I would have listened to him.”
  • Announced that if confirmed he would step down from the board of the Washington Jesuit Academy, a Catholic school for boys from lower-income families. Kavanaugh declined to say whether, because the school accepts vouchers from the D.C. government to pay for tuition, he would recuse from any cases involving school vouchers; instead, he wrote that he would “consider that question as appropriate.”
  • Addressed questions about his finances, including substantial credit-card debt – later paid off – that he had previously described as arising from (among other things) his purchase of season tickets for Washington’s professional baseball team. Kavanaugh noted that he and his wife currently have “no debts other than our home mortgage,” and he provided a list of examples of the couple’s spending on home maintenance. “We have not received financial gifts other than from our family which are excluded from disclosure in judicial financial disclosure reports,” Kavanaugh wrote. “Nor,” he added, “have we received other kinds of gifts from anyone outside of our family, apart from ordinary non-reportable gifts related to, for example, birthdays, Christmas, or personal hospitality.” Kavanaugh also stressed that he had “not had gambling debts or participated in ‘fantasy’ leagues.”

When the Senate Judiciary Committee met this morning, committee chairman Charles Grassley announced that the committee would vote on Kavanaugh’s nomination next Thursday, September 20. But even with a date set for a committee vote, the battle over the documents relating to Kavanaugh’s service in the White House is likely to continue.

This post was originally published at Howe on the Court.

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Will Kavanaugh’s confirmation hearing provide any useful information?

Supreme Court nominees’ confirmation hearings involve much dialogue between nominees and senators.  The dialogue, though, hardly ever provides substantive information about the nominees. In two chaotic days of the Senate Judiciary Commission’s hearing on the nomination of Judge Brett Kavanaugh, we have seen a full spectrum of behavior from both sides of the aisle. Showboating […]

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Supreme Court nominees’ confirmation hearings involve much dialogue between nominees and senators.  The dialogue, though, hardly ever provides substantive information about the nominees. In two chaotic days of the Senate Judiciary Commission’s hearing on the nomination of Judge Brett Kavanaugh, we have seen a full spectrum of behavior from both sides of the aisle. Showboating aside, this is a genuinely important hearing for a crucial seat on the Supreme Court and hence emotions are running high. Although much of the discussion leading up to the hearing surrounded how nominees do not answer substantive questions, many still hope that this time around things may be different. As scholars Paul Collins and Lori Ringhand have shown in a series of articles (for example), much can be learned about what we can expect from studying past confirmation hearings.

This post crunches data from the transcripts of the past four confirmation hearings — those for Justices Neil Gorsuch, Elena Kagan, Sonia Sotomayor and Samuel Alito– to see how senators’ speaking patterns and interactions with Supreme Court nominees shape the process. These four hearings are a nice mix because they showcase nominees from two Democratic and two Republican presidents. This analysis also shows how we can leverage more information from the transcripts than may be readily apparent from watching the hearings on TV.

The post looks at three main features from these hearings: the speech and interaction patterns, talking statistics and tone or sentiment of each speaker’s comments. The underlying data, which consists of several hundred transcript pages per nominee, includes senators’ opening remarks and interaction with the nominees, which were run through a package called qdap in R. The analysis ends before additional witnesses are called (Some witnesses are incorporated in the analysis, though, if they spoke on the first or second day of the hearings.).

Based on this analysis and the current state of politics, we can expect an even more polarized process than we have seen in previous hearings, in which it should be hardly recognizable that Democratic and Republican senators are speaking to the same nominee.

The post looks at these four nominees in chronological sequence based on the order in which they were nominated.

Alito

Graphs that track speech patterns look at the number of words spoken by each speaker and at the order of speakers. Moving sequentially through the nominees, we begin with Alito.

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Senator Arlen Specter of Pennsylvania presided over Alito’s hearing. As such, he (and all other chairpersons in these analyses) spoke the most of the senators present at the hearing. Senator Orrin Hatch, R-Utah, and Senator Patrick Leahy, D-Vt., both took more opportunities to interject during the proceedings than their fellow senators.

Breaking this down to the word statistics shows the amount of speech per senator. The row categories are n.tot for total utterances, n.sent for number of sentences, n.words for word count, n.state for statement count, and n.quest for question count.

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In terms of amount of speech, an interesting pattern is clear from these hearings. After Specter, the chairperson, the next four most active speakers were Democrats Leahy, Chuck Schumer of New York, Russell Feingold of Wisconsin, and Edward Kennedy of Massachusetts. Schumer asked the most questions after Specter, followed by Senators Lindsey Graham, R-S.C., and Leahy. Schumer also had the most statements after the chairperson, followed by Leahy and Kennedy. Based on these statistics alone, we can see that the type and intensity of engagement differs between Republicans and Democrats.

Especially because of the hyper-polarization of modern confirmation hearings, the amount of speech from a given senator says little about how he or she will vote. In this instance, all members of the Senate Judiciary Committee voted along party lines, with Republicans voting in support of Alito’s confirmation and Democrats voting against it.

How about the tone of the senators’ comments? Note that the sentiment dictionary is not law- or politics-specific and so it might not pick up on all of the linguistic nuances. It does provide a useful gauge of the relative tone of each senator’s comments, though. The scores range from +1 for a positive sentiment to -1 for a negative sentiment, with zero as neutral.

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First of all, although all senators incorporate words with a negative sentiment into their speech, all of the average sentiments were at least neutral (which tends to be the case across nominees). This also shows, at least at first blush, that the senators’ parties did not lead to their ranking in terms of the relative positivity in their remarks. Although four Democrats — Leahy, Dick Durbin, D-Ill., Joe Biden, D-Del., and Schumer — ranked low on positive tone relative to other senators, so did two Republicans: Tom Coburn, R-Okla., (who had the lowest sentiment score) and Mike DeWine, R-Ohio. Although Democratic Senator Herb Kohl of Wisconsin was not the most active speaker at the hearings, he had the most positive sentiment score of the senators followed by the chairperson, Specter. Senator Frank Lautenberg, D-N.J., did not sit on the Judiciary Committee.

 

Sotomayor

 

Leahy was the chairperson for Sotomayor’s hearing. He spoke the most of the senators, as is evident in the figure below.

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Senator Jeff Sessions, R-Ala., took the most interaction turns with Sotomayor, although many senators took multiple speaking opportunities during the hearing. The word statistic data further bears this out.

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Following the pattern of Alito’s hearings, after the chairperson, Leahy, eight Republicans spoke more actively than the most active Democrat, Feingold (Feingold spoke 1,000 fewer words than Specter, who was the next most active speaker.). Graham, Hatch, Coburn and John Cornyn of Texas, all Republicans, asked the most questions at these hearings. Clearly, members of the opposing party from the nominating president were more active at the hearings so far reviewed in this post.

Although most senators on the Judiciary Committee voted along party lines as they did in Alito’s case, Graham, the most active speaking Republican senator, voted in support of Sotomayor’s confirmation.

The senators’ relative sentiments were more predictable along party lines in these hearings than in Alito’s.

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As with the Alito hearings, the speakers’ sentiments in Sotomayor’s hearings were neutral to positive. The eight most positive senators in Sotomayor’s hearings were Democrats. Although Durbin ranked most negative in sentiment, the next six most negative sentiments were all from Republican senators, with Senator Jon Kyl of Arizona as the next most negative after Durbin.

Kagan

The speech patterns from Sotomayor’s hearing were similar to those in Kagan’s hearing.

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Leahy once again was the most active senator speaking. Sessions once again was one of the most active speakers as well.

As with Sotomayor’s hearing, at Kagan’s hearing the most active speakers after the chairperson were Republican senators.

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In terms of overall speech, after the chairperson, seven Republicans spoke more words and on more occasions than the most active Democratic senator. Graham had far more questions than any other senator, followed by fellow-Republican senators Grassley and Coburn. Again, Graham was the only Republican member of the Judiciary Committee to break with his party and vote in support of Kagan’s confirmation. Graham also had the most questions for Kagan.

The senators’ sentiment scores for Kagan’s hearings were somewhere in between those for Alito and Sotomayor.

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The tones were mainly neutral to positive. Although the most negative sentiments were mainly from Republicans and the most positive were mainly from Democrats, there were a few anomalies. Four of the five most negative overall sentiments were from Republican senators, although Democratic Senator Al Franken of Minnesota had the second most negative sentiment score. Similarly, nine of the top 10 most positive sentiments were from Democrats.

Gorsuch

Grassley was the chairperson for the most recent hearing before Kavanaugh’s, and many senators who were present during Gorsuch’s hearings did not participate in the previous confirmation hearings.

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These speech statistics include the opening remarks of Neal Katyal and the one line from then-White House Counsel Michael McGinley, which was “I never thought I would carry a bag after graduating law school.” The senators appear to have evenly engaged Gorsuch in the hearings, although some of the distinctions are made more evident through the word statistics.

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After the proceedings’ chairperson, Grassley, four of the five most active speakers were Democrats, with Senators Richard Blumenthal of Connecticut and Sheldon Whitehouse of Rhode Island topping this ranking. After those two senators, though, Senator John Kennedy, R-La., was the next most active speaking senator. The seven most reticent senators at the hearing were all Republicans. Blumenthal and Graham had the most questions for Gorsuch.

The sentiment scores were only somewhat useful in deciphering the senators’ views of Gorsuch.

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Although the bottom three scoring senators were all Democrats (Durbin, Franken and Feinstein), the fourth lowest-scoring senator was Grassley. Further, when looking at the top-scoring members of the Judiciary Committee, Senator Chris Coons, D-Del., was atop the list and voted against Gorsuch. The next three highest-scoring senators, however, were all Republican (Ted Cruz of Texas, Mike Crapo, R-Idaho, and Kennedy) and all voted in support of Gorsuch’s confirmation.

 

What This Tells Us About Kavanaugh

 

Some patterns are clear from these four previous hearings, and we should expect similar output this time around.

 

  • Members of the opposing party (to the nominating president) tend to have more to say. This includes the combination of opening remarks and discussion with the nominees.
  • The senators differentially engage the nominees. Some take multiple opportunities throughout the hearings, while others speak mostly during their designated slots.
  • Although members of the opposing party tend to ask more questions, this is not universally the case, as some senators are uniquely engaged in questioning the nominees.
  • The sentiments or tone of the senators’ remarks are sometimes, but not always, telling of their party and how they will vote. Senators may grill Kavanaugh with questions without largely negative tones in their remarks. Sentiment, along with substance, provides more information on the senators’ positions, but sentiment alone does shed light on many senators’ views of the nominees.
  • Polarization is really the name of the game. Party identification is the most telling piece of information on the senators’ past votes. Inevitably this facet will be more heightened this time around. Especially with the failed nomination of Judge Merrick Garland and the potential of this nomination to shift the ideological orientation of the court, we can expect party to play an even greater role in senators’ votes. Even if senators’ votes do not clearly represent all senators’ views of the nominee, senators are facing incredible pressure to vote along party lines, as one vote could tip the balance in favor or against Kavanaugh’s confirmation.

This post was first published at Empirical SCOTUS.

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Judge Kavanaugh’s fight for stronger jury rights

Judge Kavanaugh’s fight for stronger jury rightsOrrin Hatch is the senior member of the Senate Judiciary Committee. A focus of many, including myself, in evaluating Judge Brett Kavanaugh’s judicial record and philosophy has been his opinions, both judicial and academic, on the constitutional separation of powers. And rightly so, as a demonstrated commitment to our constitutional structure should be a prerequisite for anyone nominated to the Supreme Court. […]

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Judge Kavanaugh’s fight for stronger jury rights

Orrin Hatch is the senior member of the Senate Judiciary Committee.

A focus of many, including myself, in evaluating Judge Brett Kavanaugh’s judicial record and philosophy has been his opinions, both judicial and academic, on the constitutional separation of powers. And rightly so, as a demonstrated commitment to our constitutional structure should be a prerequisite for anyone nominated to the Supreme Court.

But the Supreme Court’s docket is not limited to broad structural questions, however important they may be, and neither is that of the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh’s decisions have spanned the full spectrum of cases and controversies, including those that impinge on the liberty of some of the most overlooked individuals in America — criminal defendants. One example, especially important to me, is his objection to basing prison sentences on conduct for which a defendant has been acquitted by a jury. It’s a practice as outrageous as it sounds.

Imagine that you’re a defense attorney. Your client, Antwuan Ball, was charged with distributing a few grams of crack cocaine in addition to conspiring with an extensive network of crack dealers. You know your client is small-time and hadn’t gotten caught up with the crime ring, and you fight to get him off. After a drawn-out trial, where you blast the prosecution for failing to present any definitive proof of conspiracy, you sit next to your nervous client and wait for the jury to announce his fate. Twelve men and women file into the courtroom. You hold your breath as the foreman announces Ball guilty of individually distributing crack. You look at your client, but his face is buried in his hands. Conviction on the distribution count will probably lead to a few years in prison, but the conspiracy charge carries a much longer sentence. What will the jury say? “Not guilty, your Honor.” Acquittal! This time, your client looks at you, tears of relief in his eyes. The jury simply didn’t believe, beyond a reasonable double, that your client was a conspirator.

​You tell your client to be optimistic about his sentence. The judge can only punish him for the few grams he distributed himself because the jury acquitted him of conspiracy. That turns out to be false comfort: The jury’s acquittal is little more than a speed bump at sentencing. The judge finds, using the lower preponderance-of-the-evidence standard that applies at sentencing, that your client played a role in the conspiracy and holds him responsible for distributing over 500 grams of crack. He sets the sentence at nearly 20 years — more than a decade longer than he would have faced for the sole distribution charge the jury convicted him of.

​Ball, whose story is real, was punished for committing a crime that the jury found there was at least reasonable doubt he did not commit. I think that’s a problem, and so does Kavanaugh.

​A brief aside on the history of federal sentencing law is appropriate to understand how it is that acquitted conduct can be considered at sentencing, and why this practice is constitutionally suspect. The Fifth and Sixth Amendments, which guarantee “due process of law” and the right to a jury trial for the criminally accused, respectively, are the foundation of our criminal justice system. Together, they protect defendants from conviction unless found guilty, beyond a reasonable doubt, by an impartial jury. As Alexander Hamilton wrote in Federalist No. 83, juries prevent “arbitrary punishments upon arbitrary convictions [that] have ever appeared to me to be the great engines of judicial despotism . . . .” Justice depends on conviction by a jury, not a judge.

Once convicted, however, a defendant’s sentence is generally up to the judge, not the jury. Historically, statutes set out broad sentencing ranges that left the judge free to choose a sentence that suited the defendant’s individual circumstances. Judicial discretion to sentence defendants within those statutory ranges has ebbed and flowed in recent decades, most notably with the establishment of the mandatory Sentencing Guidelines in 1987 and the Supreme Court’s 2005 ruling in United States v. Booker that made those Guidelines advisory, not binding.

A constant in federal sentencing over the years — both before and since the Guidelines went into effect — is the standard of proof that applies to the judge at sentencing. While the reasonable-doubt standard applies to factual findings made by a jury at the guilt stage of a criminal prosecution, the lower preponderance-of-the-evidence standard applies to factual findings made at the sentencing stage of a criminal case.

The difference in those standards of proof means that a sentencing court can consider acquitted conduct. Under 18 U.S.C. § 3661, Supreme Court precedent, and the Sentencing Guidelines, a judge is free to consider a wide range of relevant conduct for the purpose of determining an appropriate sentence. Relevant conduct can include evidence that a defendant has committed other crimes, including the very crimes for which a jury acquitted the defendant. Like other factual findings at sentencing, the judge must simply find by a preponderance of the evidence that the defendant has committed the crime that the jury acquitted him of.

Every single circuit court has found it “reasonable” for a judge to enhance a sentence based on acquitted conduct. This follows the Supreme Court’s 1997 decision in United States v. Watts, which upheld the use of acquitted conduct against a double jeopardy challenge because “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” The court thought that statutory sentencing ranges would keep sentences proportional to the convicted offenses. But the broad ranges embraced by our criminal code make it easy to separate crime from its punishment.

The bottom line is that defendants like Ball can be punished for doing something that the jury isn’t sure they did. Even though a defendant can’t be convicted for that conduct, the ties between crime and punishment must be tight to be fair. In the current system, a judge can inflate a defendant’s sentence for a convicted crime to make up for the jury’s decision to acquit him of a separate charge. Judges should not wield that kind of veto.

​I’m troubled by the consequences this has on the venerated role of juries in criminal justice. Beyond these policy problems, which are in my purview as a legislator, are constitutional concerns, which have rankled Kavanaugh’s judicial sensibilities. His understanding of the Fifth and Sixth Amendments has caused him to question why “many key facts used to calculate the sentence are still being determined by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”

In 2015, Kavanaugh wrote separately to build on Judge Patricia Millett’s excoriation of the acquitted-conduct doctrine. In his customary clear prose, he explained that the law allows “a judge [to] impose a sentence higher than the sentence the judge would have imposed absent consideration of…acquitted conduct.” To point out the constitutional paradox, he asked why, if a defendant may have a right to “have a jury find beyond a reasonable doubt the facts that make [him] guilty [and] receive[d], for example, a five-year sentence, why [doesn’t he] have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?” ​

I find it remarkable that Kavanaugh, despite his open campaign against the use of acquitted conduct at sentencing, has rebuffed the easy temptation of judicial activism. In the 2015 case United States v. Bell, he agreed that current precedent prevented the D.C. Circuit from reviewing the issue. The only appropriate action, he said, was for sentencing judges to think twice before choosing to consider acquitted conduct. Only a few months ago, he again wrote separately in an acquitted-conduct case to reaffirm that precedent tied his hands, dissenting in part in United States v. Brown. But he didn’t abandon his drumbeat for change through the proper channels. He concluded, “If th[e] system seems unsound—and there are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness—Congress and the Supreme Court may fix it, as may individual district judges in individual cases.”

Bound by current law, Kavanaugh joined the opinion that upheld Ball’s sentence. Ball asked the Supreme Court for review, but his request was denied after only three justices voted to grant certiorari. Justices Clarence Thomas and Ruth Bader Ginsburg joined Justice Antonin Scalia’s acerbic dissent, which noted that the only reason Ball received such a long sentence was the judge’s finding that he was a co-conspirator. Of course, that was the very finding the jury had rejected at trial. And it would appear to be at odds with Supreme Court precedent that “any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.” As Scalia wrote, “This has gone on long enough.” Indeed.

​The Supreme Court’s evolving jurisprudence on the appropriate roles of judge and jury as factfinders for the purpose of sentencing has dovetailed with my own reconsideration of the use of acquitted conduct at sentencing. In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct. But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law. I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.” The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.

​Sure, it would be much easier to let circuit judges reverse sentences that were based on acquitted conduct. Introducing a bill, as I plan to do, can be tedious and hard work. I’m happy to take on the task for an important issue like this, but meanwhile, defendants are serving time for crimes they didn’t do. It’s frustrating to me, and it’s frustrating to Kavanaugh. But he has prudently declined to step outside of his constitutional role. Time and time again, he has respected precedent and affirmed the repugnant power of sentencing judges to consider acquitted conduct. However, Kavanaugh has wisely used his judicial platform to shed light on troubling law that shackles the rights of criminal defendants. His legal acumen, compassion, and respect for the judicial role assure me, and should assure you, that he will be an excellent, fair, and faithful justice.

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