Court adds four new cases to merits docket

Court adds four new cases to merits docketThis morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review. The highest-profile grant of the day came in United States v. Microsoft Corp., in which […]

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Court adds four new cases to merits docket

This morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review.

The highest-profile grant of the day came in United States v. Microsoft Corp., in which the justices agreed to decide whether an email provider who has been served with a warrant must provide the federal government with emails, even when the email records are stored outside the United States. The case arose when the federal government asked for a warrant that would require the software behemoth to disclose information about a specific email account, which the government believed was being used for drug trafficking. The government relied on the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act, which authorizes the government to use a warrant to obtain email records when it has probable cause to believe a crime is being committed. A federal judge issued the warrant, which was served on Microsoft at its headquarters in Washington state.

Microsoft refused to hand over the contents of the emails in the accounts. It argued that, because the emails were stored overseas, the SCA did not apply to them. The company was unsuccessful at the trial level, but it found a more sympathetic audience in the U.S. Court of Appeals for the 2nd Circuit, which declined to enforce the warrant. An evenly divided full court of appeals denied rehearing en banc.

The federal government took its case to the Supreme Court. The United States complained that, as a result of the 2nd Circuit’s ruling, “the government cannot require a U.S. service provider to disclose to the government, in the United States, emails and related information that the provider, for its own business reasons, has stored abroad.” Describing that holding as “unprecedented,” the government told the justices that “the decision is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.” “Under this opinion,” the government continued, “hundreds if not thousands of investigations of crimes—ranging from terrorism, to child pornography, to fraud—are being or will be hampered by the government’s inability to obtain electronic evidence.”

Today the justices granted the government’s petition. As this blog’s John Elwood reported last week, there is apparently no division among the lower courts on the question that the justices have agreed to review – suggesting that the justices regard the issue as particularly important.

In Dahda v. United States, the justices will interpret a provision of the Omnibus Crime and Safe Streets Act of 1968, which gives a judge the power to issue a wiretap order to intercept communications within the territorial jurisdiction of the court on which the judge sits. The same law, however, also allows courts to suppress those communications if (among other things) the order that approved the interception was “insufficient on its face.”

In this case, Los and Roosevelt Dahda – twin brothers – were indicted on charges that they had conspired to distribute illegal drugs. In the case against the Dahdas and their co-defendants, the federal government relied heavily on evidence obtained by tapping several cellphones, including the brothers’, pursuant to wiretap orders issued by a federal district court in Kansas. The twins argued that the evidence should be suppressed because the order allowed the government to intercept their communications even if the phones were outside Kansas. But the trial court rejected that argument, and both were found guilty; Los was sentenced to 189 months in prison, while Roosevelt was sentenced to 201 months.

The U.S. Court of Appeals for the 10th Circuit upheld the decision to allow the evidence from the cellphones to be used against the twins. The court of appeals agreed with the Dahdas that the wiretap orders were, on their face, insufficient because they allowed the government to intercept the cellphones even when they were not in Kansas. But, the court continued, the evidence from the wiretaps could still come in. The court reasoned that Congress had enacted the law to advance two “core concerns” – privacy and uniformity – that were not implicated by the Dahdas’ argument that the order exceeded the Kansas district court’s jurisdiction. Describing the question presented by their case as one of “immense practical importance for criminal defendants” because of both the growing use of wiretaps and the central role that evidence derived from wiretaps often plays at trial, particularly in conspiracy cases, the Dahdas asked the Supreme Court to review their case, which it agreed to do today. Justice Neil Gorsuch recused himself, presumably because he sat on the 10th Circuit panel that heard oral argument in the Dahdas’ case, although he was not involved in the lower court’s ruling.

Ohio v. American Express Co. has its roots in the credit-card network’s “anti-steering” rules, included as part of its contracts with the merchants who accept AmEx cards. The rules prohibit the merchants from showing a preference for other, cheaper credit cards (like Visa or MasterCard) or offering their customers discounts or incentives to use those cards. In 2010, the federal government and a group of states went to court, charging AmEx with a violation of Section 1 of the Sherman Act, which prohibits agreements that restrain trade.

To determine whether a practice violates Section 1, courts normally employ a standard known as the “rule of reason,” which looks at the history and justifications for the practice, as well as its economic costs and benefits. For the case to proceed, the plaintiffs must first show that the practice is, on its face, anti-competitive. If they can do so, the burden then shifts to the defendant to show that there is a “pro-competitive justification” for the practice.

Applying the rule of reason, the district court in this case ruled that AmEx’s “anti-steering” rules violated Section 1. The U.S. Court of Appeals for the 2nd Circuit reversed, however. For the court of appeals, it wasn’t enough that the anti-steering rules inhibited price competition among credit-card networks, which led to merchants and customers paying more. The plaintiffs would also have to show, the court ruled, that the anti-competitive effects outweighed the benefits – such as “cash-back” rewards and airline miles – to AmEx cardholders.

Ohio and a group of other states went to the Supreme Court, asking it to clarify how the rule of reason should be applied. Review was also essential, the states argued, because the question is “important to the national economy”: The 2nd Circuit, they contended, “should not have the final say over the prices of everyday retail transactions across the whole country.”

During the Obama administration, the federal government had joined the states in their lawsuit and even asked (unsuccessfully) the 2nd Circuit to reconsider its ruling. But in a brief filed in August 2017, the federal government urged the justices to deny review, even though it agreed with the states that the lower court’s decision “seriously departed from sound antitrust principles” and “leaves in place restraints that thwart price competition in an important sector of the economy and inflate the retail prices paid by all consumers.” The case, the government explained, did not meet the Supreme Court’s normal standards for granting review, particularly because neither the Supreme Court nor other lower courts had considered some of the “novel legal issues”’ in the case.

The Constitution’s double jeopardy clause protects a defendant from repeat prosecutions for the same offense. Whether the clause precludes a retrial can be a fairly straightforward question when a defendant is tried on a specific charge and then acquitted; prosecutors cannot then retry him on the same charge. But it can become more complicated when a defendant is indicted on multiple charges and consents to having them tried separately: In that case, does he benefit from an acquittal at the first trial, or do the protections of the double jeopardy clause evaporate? That is the question that the Supreme Court has agreed to review in Currier v. Virginia.

The petitioner in the case, Michael Currier, was indicted on three charges arising out of the theft of a safe that contained a large amount of cash and 20 guns: breaking and entering, grand larceny, and being a felon in possession of a firearm – the guns inside the safe. To avoid having the jury’s verdict on the theft charges tainted by the knowledge that Currier had previously been convicted of a felony, prosecutors and Currier agreed to try those two charges first, followed by a separate trial on the felon-in-possession charge. The central question in the first trial was whether Currier was involved in stealing the safe; Currier’s lawyers argued that he was not, and the jury agreed, finding him not guilty of both charges.

Prosecutors opted to move forward with the felon-in-possession charge, despite Currier’s contention that the double jeopardy clause barred them from trying to persuade a second jury that he had been involved in the theft of the safe. If Currier did not steal the guns, he emphasized, he could not have possessed them. Prosecutors relied on “the same basic theory as the first trial” – that Currier had helped to break into the home where the safe was stored and helped to steal it. This time Currier was convicted and sentenced to five years in prison.

Both the trial court and the appeals court rejected his argument that the prosecution violated his rights under the double jeopardy clause. Even if the jury in the first trial had rebuffed the theory on which prosecutors relied in the second trial, they reasoned, the double jeopardy clause was still not implicated because prosecutors had opted for two separate trials to protect Currier, rather than because they were “overreaching” – which, the lower courts contended, is one of the other evils against which the double jeopardy clause is intended to guard. Currier then went to the Supreme Court, where he told the justices that the federal courts of appeals and state supreme courts are divided on the question presented by his case. Virginia conceded that there is a “limited split of authority,” but it contended that the split is “neither a pronounced nor a mature” one – and, in any event, it added, the ruling below is correct. Now the justices will have the last word.

The justices declined to step into two related Florida death-penalty cases, over two separate dissents. In both Truehill v. Florida and Oliver v. Florida, the inmates challenged their sentences in the wake of Hurst v. Florida, the court’s 2016 decision holding that the state’s capital-sentencing scheme, in which a jury renders an “advisory sentence” but a judge must independently weigh the aggravating and mitigating factors before entering a sentence of life or death, violates the Sixth Amendment. Justice Sonia Sotomayor dissented from the denial of review in the two cases, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. In Sotomayor’s view, Truehill and Oliver had also raised “a potentially meritorious Eighth Amendment challenge to their death sentences” – specifically, the idea that a jury that only recommends a death sentence but does not have the final say violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Supreme Court, Sotomayor contended, should have sent the case back to the Florida Supreme Court for it to consider the Eighth Amendment question. Breyer also wrote a separate dissent echoing the Eighth Amendment concerns.

And in Scenic America v. Department of Transportation, an administrative-law dispute over digital billboards, the court’s newest justice, Neil Gorsuch, wrote a statement respecting the court’s denial of review that was joined by Chief Justice John Roberts and Justice Samuel Alito. Under the court’s 1984 decision in Chevron v. Natural Resources Defense Council, courts should defer to an agency’s interpretation of an ambiguous law as long as it is reasonable. This is an area of the law in which Gorsuch displayed a keen interest while a judge on the U.S. Court of Appeals for the 10th Circuit. He has suggested that the days of the “Chevron doctrine” should come to end because it is the job of a courts, rather than an administrative agency, to say what the law means. If Congress doesn’t like the courts’ interpretation, in his view, it can change it.

In 1965, Congress enacted the Highway Beautification Act to (among other things) “promote the safety and recreational value of public travel, and to preserve natural beauty.” The HBA allows the Federal Highway Administration to reduce a state’s federal highway funding if the state does not maintain “effective control” over outdoor billboards. One way for a state to maintain that “effective control” is to enter into an agreement with the FHWA that sets standards for signs on major highways. Most of the agreements currently in place bar signs with “flashing,” “intermittent” or “moving” lights. In a memorandum issued in 2007 as “guidance” for its internal staff, the FHWA interpreted the agreements to allow digital billboards.

In 2013, Scenic America – which describes its mission as seeking to “preserve and improve the visual character of America’s communities and countryside” – filed a lawsuit against the federal government, challenging the guidance on digital billboards. After the lower courts ruled for the government, Scenic America asked the justices to review the ruling against it by the U.S. Court of Appeals for the District of Columbia Circuit. The group argued that the court of appeals should not have deferred to the FHWA’s conclusion on digital billboards because it was interpreting only the agreements – to which it was a party – rather than the FBA itself.

After taking the unusual step of requesting a reply (which is optional under the court’s rules) when Scenic America failed to file one last spring – which, according to John Elwood, was only the second time they had done so since 2001 – the justices today denied review. In his three-page statement, Gorsuch suggested that the question whether “Chevron-type deference warrants a place in the canons of contract interpretation is surely open to dispute” and is “important.” But, he continued, Scenic America’s case is not the right one in which to consider that issue, because (among other things) the case is “factbound” – that is, it hinges on the application of law to specific facts. Therefore, he concluded, he was “persuaded that the proper course is to deny certiorari in this particular case even though the issues lying at its core are surely worthy of consideration in” an appropriate case in the future.

The justices will not meet for a private conference this week; their next conference is scheduled for October 27.

This case was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in Ohio v. American Express; however, I am not affiliated with the firm.]

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OT2017 #3: “Nowheresville” (ft. Nina Totenberg)

OT2017 #3: “Nowheresville” (ft. Nina Totenberg)The October sitting has ended—and we’re here to wrap it up for you. On this episode, we begin by discussing the biggest news of the month: our new microphones, brought to you courtesy of our Patreon supporters. We also break down the December argument calendar (warrantless location tracking, cake-as-speech, federalism, and gambling) as well as […]

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OT2017 #3: “Nowheresville” (ft. Nina Totenberg)

The October sitting has ended—and we’re here to wrap it up for you. On this episode, we begin by discussing the biggest news of the month: our new microphones, brought to you courtesy of our Patreon supporters. We also break down the December argument calendar (warrantless location tracking, cake-as-speech, federalism, and gambling) as well as the court’s long-awaited disposition of the travel-ban case.

We’re also joined this week by Nina Totenberg, who talked with us about how the first month looked from her (very nice) seat in the courtroom. Justice Gorsuch’s manner at oral argument: discussed. The reaction of the “reasonable party-goer” to marijuana: discussed. The extent to which the background of the court’s members creates a pro- or anti-“corporate” tilt: also discussed.

Last week, the court heard oral argument in Jesner v. Arab Bank, PLC, a major case about human-rights litigation and the Alien Tort Statute, and we discuss how the argument went in some detail. The court also heard argument in a case about the extent to which a time limit in a rule of appellate procedure is jurisdictional, and (ever on-brand) we discuss that case in nearly equal detail. Finally, we wrap things up with some listener hotline calls, including one about what liberals put on their steak.

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Relist Watch

Relist WatchJohn Elwood reviews Tuesday’s relists. If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is […]

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Relist Watch

John Elwood reviews Tuesday’s relists.

If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is weird – it is a time when you can no longer count on basic things you took for granted.

But at least (cue obvious segue) we can count on one thing: The Supreme Court will relist a mess of new cases just as you’re trying to prepare for oral argument. This week is no exception: By my count, we have a whopping 10 new relists (to say nothing – and I do intend to say nothing – of four returning relists). And these are not small cases. For example, a case with a caption like United States v. Microsoft Corporation, 17-2, just sounds epic. And an epic case it is, presenting the issue of whether Microsoft must comply with a probable-cause-based warrant for email records that the company maintains in Ireland. The U.S. Court of Appeals for the 2nd Circuit concluded that Microsoft was not required to comply with the warrant, and Uncle Sam seeks to challenge that conclusion. The petition is also the rare relist that involves a case for which there is not – at least so far as I have found – a square circuit split on the narrow question presented. The case thus is seeking a position on the docket with Carpenter v. United States16-402, as a case so important that the Supreme Court takes it even in the absence of a square split.

And then there is a group of three cases out of U.S. Court of Appeals for the 9th Circuit that challenge a California law that requires licensed pregnancy-related clinics to disseminate a notice about the availability of publicly funded family-planning services, including contraception and abortion, and requires unlicensed clinics to provide extensive disclaimers. In National Institute of Family and Life Advocates v. Becerra, 16-1140, A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153, pro-life pregnancy centers challenge the law on compelled-speech and viewpoint-discrimination grounds, arguing that California enacted the law specifically to target such pro-life centers. These cases were originally conferenced back in June, and the Supreme Court has already called for and received the record in all three, so it’s clear the justices have been keeping a close eye on them.

The interesting free-speech issues do not end there: Minnesota Voters Alliance v. Mansky, 16-1435, presents another juicy one. Minnesota law forbids voters from wearing political badges, buttons and insignia at polling places. The U.S. Court of Appeals for the 8th Circuit upheld the law against a free-speech-clause challenge. The petitioners contend that the First Amendment doesn’t permit states to make even polling places “speech-free zones.”

And that is just the tip of the proverbial iceberg. The rest of the relists all concern criminal law. If I were not so busy, I’d tell you all about the fascinating double jeopardy case, the interesting wiretap case with the funny name, the state-on-top habeas cases and the court’s latest encounter with the much-litigated Armed Career Criminal Act. But I’ve gotta go now – those animal videos are not going to like themselves.

Thanks to Kent Piacenti for compiling the cases in this post.

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New Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6 conference)

 

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146 

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6 conference)

  

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6 conference)

  

Currier v. Virginia, 16-1348

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

(relisted after the October 6 conference)

 

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6 conference)

 

Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6 conference)

 

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6 conference)

 

United States v. Microsoft Corporation, 17-2

Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

(relisted after the October 6 conference)

 

Dahda v. United States, 17-43

Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

(relisted after the October 6 conference)

 

Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6 conference)

 

Returning Relists

Scenic America, Inc. v. Department of Transportation, 16-739

Issues: (1) Whether treatment under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA, or whether deference, if any, is owed under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); (2) whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

(relisted after the September 25 and October 6 conferences)

 

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

(relisted after the September 25 and October 6 conferences)

 

Ohio v. American Express Co., 16-1454

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any pro-competitive benefits from the provisions to American Express.

(relisted after the September 25 and October 6 conferences)

 

Truehill v. Florida, 16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, where the jury was repeatedly advised by the court that its advisory sentencing recommendation was nonbinding.

(relisted after the September 25 and October 6 conferences)

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Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdiction

Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdictionThe scope of the federal government’s regulatory authority under the Clean Water Act has long been controversial. Stretch it too far, and it appears that the federal government can regulate every puddle in the nation; narrow it too much, and the government is left unable to protect the quality of interconnected waters. For that reason, […]

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Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdiction

The scope of the federal government’s regulatory authority under the Clean Water Act has long been controversial. Stretch it too far, and it appears that the federal government can regulate every puddle in the nation; narrow it too much, and the government is left unable to protect the quality of interconnected waters. For that reason, each time the government has promulgated a rule defining the act’s geographic scope — as it did in the 2015 “Clean Water Rule” — lawsuits quickly follow. In yesterday’s argument in National Association of Manufacturers v. Department of Defense, the Supreme Court considered the preliminary question of whether those lawsuits should be filed in district courts or courts of appeals.

Rachel P. Kovner, assistant to the U.S. solicitor general (Art Lien)

As described in my preview, the case hinges on a provision of the statute, 33 U.S.C § 1369(b)(1), which specifies seven actions by the Environmental Protection Agency that are reviewable directly in the courts of appeals. The petitioners — a varied group including the National Association of Manufacturers, states, environmental groups, electric utilities and agricultural companies — all argue that the Clean Water Rule does not fall within any of the EPA actions on the list, so lawsuits challenging the rule should be filed in district court. The United States, along with fellow-respondents the Natural Resources Defense Council and the National Wildlife Federation, argues that the rule does fall within the provisions that trigger direct appellate review. Specifically, the government argues, the rule falls within Subsection (E), which covers EPA actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title”; as a fallback, the government also argues that the rule is within the scope of Subsection (F), which covers EPA actions “in issuing or denying any permit under section 1342 of this title.”

The oral argument focused largely on whether the government’s position can be squared with the text of Section 1369(b)(1). Timothy Bishop, arguing for NAM, began by stressing that his position is consistent with the act’s text: The Clean Water Rule simply isn’t an “effluent limitation or other limitation,” and it is not promulgated “under” section 1311. Justice Sonia Sotomayor, however, suggested — echoing the government’s position — that perhaps the rule is such a limitation. After all, she noted, “[o]nce you define navigable waters you say where an effluent applies or doesn’t.” Rachel Kovner of the U.S. solicitor general’s office, representing the United States, stressed that point: The rule is a limitation because it restricts where pollutants can be discharged. As for whether the rule was promulgated “under” section 1311, Justice Elena Kagan asked whether “under” could mean “regulating actions taken under” section 1311 — which would seem to cover the rule. Kovner also argued that the rule is “under” section 1311 in the sense that it was promulgated under the authority of section 1311. On the whole, however, the government’s textual argument faced an uphill battle, and it was likely not a good sign for Kovner when Justice Stephen Breyer remarked that it was “hard to agree” with the government’s position.

Timothy S. Bishop for petitioner (Art Lien)

But if the petitioners had the textual advantage, they faced harder questions about whether the statute makes any sense under their reading. As Justice Ruth Bader Ginsburg pointed out, NAM’s position means that individual permit decisions go to appellate courts, whereas broad definitional pronouncements like the Clean Water Rule go to the district court, and “[o]ne would think it would be just the other way around.” Bishop conceded that he was not aware of any explanation for why Congress had assembled this seemingly incongruous list of actions that get direct appellate review. This led Kagan to ask whether Bishop’s position was that the court should “just resign [itself] to thinking of this as having no particular rationale. Congress said what it said … It’s all a themeless pudding and that’s just what it is?” Bishop said yes, stressing that the best way to handle seemingly puzzling language is to stick to the text. Ohio Solicitor General Eric Murphy, sharing argument time with Bishop, suggested that a unifying theme for the list is that each of the seven subsections refers to a specific action that Congress was instructing the EPA to take. Perhaps those, above others, were actions that Congress thought should receive direct appellate review.

The argument also brought to the surface two broader and competing concerns. On one hand, several questions pointed out the inefficiency of NAM’s approach. Chief Justice John Roberts, for example, observed that NAM’s position calls for district courts around the country to review the agency’s entire administrative record, and then for appellate courts to review the exact same record “all over again.” This led him to ask, “You’ll agree that it’s inefficient, won’t you?” In response, both Bishop and Murphy suggested that their rule actually fosters efficiency by creating a clearer jurisdictional test. Kovner resisted that characterization, arguing that, to the contrary, the government’s rule “is very clear”: It just asks “does it impose a limitation under section 1311?”

But would the government’s position raise problems under the due process clause? This argument, which Murphy identified, flows from Section 1369(b)(2)’s limitation on future litigation: When direct appellate review applies, Section (b)(2) says that challenges must occur within 120 days of the relevant action, and litigants may not later challenge the EPA decision at issue if they could have obtained review within that 120-day period. What if, Roberts asked, the government brings an enforcement action against “a farmer in Kansas” who doesn’t think he’s within the Act’s geographic scope — is that farmer barred from challenging the rule as a defense? Kovner explained that the Supreme Court has previously left open whether applying a similar bar in enforcement situations would raise due-process concerns. She urged that if due-process concerns did exist (she did not take a firm position on whether they did), the solution would be to construe Section (b)(2) narrowly — an approach that doesn’t bear on the proper meaning of Section (b)(1). Justice Neil Gorsuch seemed to suggest, however, that this due-process carve-out from appellate jurisdiction dimmed the government’s purportedly bright-line rule.

Finally, the justices inquired about the case’s potential mootness. The Trump administration has already proposed rescinding the Clean Water Rule, and Kovner opined that this case would become moot if that rescission occurred before the court reached a decision. But, as both she and Bishop pointed out, the administration’s repeal process will take an unknown amount of time, and this controversy remains live in the interim.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm.]

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Argument analysis: Corporate liability for violations of international law on shaky ground

Argument analysis: Corporate liability for violations of international law on shaky groundThe Supreme Court was divided today on whether corporations can be held liable in U.S. courts under a federal law dating back over two centuries. After an hour of oral argument by three excellent advocates, and five years after they considered the question for the first time, several of the justices appeared to be ready […]

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Argument analysis: Corporate liability for violations of international law on shaky ground

The Supreme Court was divided today on whether corporations can be held liable in U.S. courts under a federal law dating back over two centuries. After an hour of oral argument by three excellent advocates, and five years after they considered the question for the first time, several of the justices appeared to be ready to hold that the Alien Tort Statute does not allow lawsuits against corporations for serious violations of international law. Some of the other justices seemed to be trying to salvage a ruling that might eventually end this lawsuit while leaving the door open for some lawsuits against corporations, but it was not at all clear that they could garner five votes for that result.

Jeffrey L. Fisher for petitioners (Art Lien)

The plaintiffs in Jesner v. Arab Bank are the victims of terrorist attacks that occurred over a 10-year period in Israel, the West Bank and Gaza. They allege that Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers. They filed lawsuits under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS was enacted as part of the Judiciary Act of 1789 but was largely dormant for nearly 200 years, until a federal appeals court allowed a lawsuit against a former Paraguayan police official living in the United States to go forward on the ground that the complaint alleged torture, which violates the “law of nations.” Since then, the ATS has been frequently cited as the basis for lawsuits – against both foreign governments and multinational corporations – filed in U.S. courts seeking compensation for human-rights violations.

In 2004, the Supreme Court ruled that the universe of claims that can be brought under the ATS is limited to claims that are easily defined and commonly regarded as violations of international law. In making that determination, the justices added, courts should also consider “the practical consequences of” allowing a claim to go forward, along with whether international law would allow a particular defendant to be held liable for violating it. Eight years later, the court agreed to decide the question at the center of this case: whether corporations can be held liable under the ATS. After oral argument in that case, though, the justices asked the two sides to weigh in on whether the ATS allows lawsuits based on actions that take place in another country. In an opinion by Chief Justice John Roberts, the court concluded that the principles underlying the general presumption that U.S. law does not apply outside the United States also apply to the ATS.

Arguing for the plaintiffs, attorney Jeffrey Fisher contended that the text of the ATS leads to a “straightforward result”: a presumption that corporations can be held liable for violations of international law. Concerns about the effect that lawsuits like this one may have on the relationship between the United States and other countries, Fisher suggested, do not justify a categorical ban on lawsuits against corporations. And even when such concerns are valid, he continued, there are other legal theories – such as the presumption that the ATS does not apply to conduct that occurs outside the United States – that can be applied to address those concerns.

Justice Samuel Alito was doubtful that the potential foreign-relations implications of such suits could be so easily minimized. When courts are deciding whether to recognize claims under the ATS, he told Fisher, there will definitely be lawsuits that, if allowed to go forward, will create friction with other countries. But will there really be cases on the other end of the spectrum, Alito queried, in which dismissing the lawsuit will create foreign-relations problems?

Fisher later responded that the answer to Alito’s question was “yes,” telling the justices in his rebuttal that Israel – where several of the attacks that led to this lawsuit took place, and whose citizens are plaintiffs in the case – would certainly complain if the case were dismissed. But Roberts seemed to share Alito’s skepticism, telling Assistant to the Solicitor General Brian Fletcher (who argued on behalf of the United States) that the United States would likely be held “accountable” if it does provide a forum and a remedy in cases like this one.

Brian H. Fletcher, assistant to the U.S. solicitor general (Art Lien)

The court’s newest justice, Neil Gorsuch, was even more unsympathetic to the plaintiffs. He repeatedly pressed Fisher to explain whether the plaintiffs’ interpretation of the ATS was consistent with what Congress intended when it enacted the law in 1789, and he seemed unconvinced by Fisher’s answers. When Fisher at one point cited a seminal Supreme Court opinion from 1900 to bolster his argument, Gorsuch pushed back, asking Fisher how we could know whether that was the understanding of Congress in 1789.

A central issue at today’s oral argument was exactly how to characterize the court’s inquiry in this case: Should it look at whether there is a consensus that financing terrorism is generally accepted as a violation of international law, or instead at whether there is a consensus that corporations can be held liable for such violations? For Paul Clement, who argued on behalf of Arab Bank, the answer was the latter. And, he stressed repeatedly in his half-hour at the lectern, there is no specific and widely accepted norm of international law that would allow corporations to be held liable for financing terrorism.

Paul D. Clement for respondent (Art Lien)

Justice Sonia Sotomayor did not agree. She told Clement that there is no specific norm for holding people liable either. The norm, she said, focuses on conduct – for example, should you or shouldn’t you finance terrorism or be a pirate?

Justice Elena Kagan echoed Sotomayor’s thoughts, telling Clement that the question of whether specific conduct constitutes a violation of international law is different from the question of who can be held liable for that conduct. Other countries’ views on the liability question are certainly relevant, she acknowledged, but where do you get the idea, she asked Clement, that there has to be consensus on the liability question?

Justice Stephen Breyer also seemed to be in the plaintiffs’ camp on this issue. If you have a rule of international law that prohibits the financing of terrorism, he asked somewhat rhetorically, to whom would it apply besides corporations and the occasional billionaire?

Perhaps most crucially, the bank found a friendlier audience in Justice Anthony Kennedy, who asked relatively few questions. Unlike Sotomayor, Kagan and Breyer, Kennedy seemed unpersuaded by the plaintiffs’ efforts to distinguish between conduct and who can be held liable for that conduct. Allowing corporate liability under the ATS does impose a norm, he told Fisher, because it tells corporations how to run their business. “Norms control behavior,” he repeated, and we would be saying that corporations “now must conform their behavior. That seems to me to be a norm.”

With Kennedy having possibly shown his hand, Kagan seemed to turn to triage, hoping to avoid a ruling that establishes a categorical bar on corporate liability, even if it comes at the expense of the plaintiffs in this case. “You have plenty of things to gripe about,” she told Clement: This is a “foreign-cubed” lawsuit – one involving foreign plaintiffs, a foreign defendant and conduct that largely happened overseas. But the question of corporate liability, she continued, is not one of them. Why on earth, she asked Clement, is there any reason to distinguish between an individual and corporation when it comes to who can be held liable? To hammer her point home, she offered a hypothetical involving a corporation that uses citizens of another country for slave labor in the United States. Was Clement really saying that the ATS would not provide a basis for a lawsuit in such a case?

Clement acknowledged that Kagan’s hypothetical was a “tough” one, but he countered that the slaves could sue the individuals responsible for their plight in the United States – who, he assured Kagan, would have sufficiently “deep pockets” to satisfy a judgment for the plaintiffs.

To the extent that Kagan’s goal was a ruling for the bank – for example, because the mere fact that the bank may have routed foreign transactions in dollars through its U.S. branch does not establish the kind of connection to the United States that the Supreme Court’s earlier cases require – that leaves the door open for lawsuits against other corporations in the future, it may be a tough sell. The United States had advanced a similar argument, but made little headway today with Roberts and Alito. Kagan may have been hoping that the argument would gain more traction with Kennedy, but we likely won’t know until next year whether she succeeded.

This post was originally published at Howe on the Court.

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Justices end 4th Circuit travel-ban challenge

Justices end 4th Circuit travel-ban challengeOne of the challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” came to an end at the Supreme Court today, at least for now. In a brief order issued this evening, the justices sent Trump v. International Refugee Assistance Project back to the U.S. Court of Appeals for […]

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Justices end 4th Circuit travel-ban challenge

One of the challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” came to an end at the Supreme Court today, at least for now. In a brief order issued this evening, the justices sent Trump v. International Refugee Assistance Project back to the U.S. Court of Appeals for the 4th Circuit with instructions to dismiss the case as moot – that is, no longer a live controversy. The justices did not act on Trump v. Hawaii, the challenge that it had agreed to review along with Trump v. IRAP last June. The likely explanation for the different treatment of the two cases is that the Hawaii case challenges a provision of the March 6 order that is still in effect, but will expire later this month. This means that the justices could also dismiss that case, but even if they do, they are probably not done with the issues at the heart of both cases – whether the Trump administration’s restrictions on entry into the United States violate the Constitution or exceed the president’s authority. Those questions are likely to return to the court soon, perhaps even this term.

Both of the challenges were filed after the president’s March 6 order imposed a 90-day freeze on the entry into the United States by travelers from six Muslim-majority countries: Somalia, Sudan, Libya, Yemen, Syria and Iran. The Hawaii case also challenged a provision of the order that suspended the admission of refugees into the United States for 120 days. On September 24, as the 90-day period was due to expire, however, Trump issued a new proclamation that restricted travel to the United States by nationals from five of the six countries on his March 6 list (Somalia, Syria, Libya, Iran and Yemen) and added three more countries: North Korea, Venezuela and Chad. Trump explained that the federal government had, as directed in the March 6 order, evaluated the procedures that it used to vet travelers to the United States. Although the country as a whole “has improved its capability and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat,” he indicated, travel restrictions are still necessary for these eight countries.

One day after Trump issued his proclamation, the Supreme Court removed the travel-ban cases, which had been scheduled for oral argument on October 10, from its argument calendar. The justices also instructed the two sides to file briefs, due last week, addressing whether the challenges are moot in the wake of Trump’s proclamation and the scheduled expiration of the March 6 order’s temporary suspension of the admission of refugees on October 24.

In the briefs that they filed last week, the two sides disagreed on two central questions: Whether the cases are moot and, if they are, the fate of the lower-court decisions ruling for the challengers. The federal government insisted that the two cases “are now or soon will be moot,” because the 90-day suspension on the entry of nationals from the six Muslim-majority countries has already expired (and been replaced by the September 24 proclamation), while the 120-day suspension of the admission of refugees into the United States will expire on October 24. And the government urged the court to vacate the lower courts’ decisions, so that they would not carry any legal weight in the future, describing such a step as essential to avoid “‘legal consequences’ in future cases, on critical issues including justiciability and the President’s authority to protect national security.”

The challengers countered that the disputes are not moot and should be returned to the court’s calendar for oral argument and an eventual decision on the merits. Part of the March 6 executive order remains in place, they reasoned, while the September 24 proclamation restores and even extends many other parts of that order. But even if the disputes were moot, they argued, the court should not vacate the decisions below (which would give the challengers useful precedent to use in litigation over the September 24 proclamation), because doing so would effectively reward the government for its efforts to manipulate the litigation and the timing of the order to make the disputes moot in the first place. Instead, the challengers urged, the justices should dismiss the cases as “improvidently granted” (that is, on the ground that it was a mistake for the court to have agreed to review them), an outcome that would leave the decisions below in place, and allow the two sides to renew their dispute in litigation over the newest proclamation.

Explaining that the freeze on the entry of travelers from the six countries “‘expired by its own terms’ on September 24” and therefore “no longer presents a live case or controversy,” the court agreed with the federal government that the 4th Circuit’s ruling for the challengers should be vacated. Justice Sonia Sotomayor was the only justice to note her disagreement with this outcome; she would have dismissed the case as improvidently granted.

If the justices are indeed waiting for the 120-day suspension of the refugee program to expire on October 24, there may not be any action on the Hawaii case in the Supreme Court until then. However, litigation challenging the September 24 proclamation could be well under way in the lower courts by that point. Attorneys in both Trump v. Hawaii and Trump v. IRAP have sought to amend their original complaints (here and here) to challenge the new proclamation, while another group – the Council on American-Islamic Relations – has filed its own challenge.

This post originally appeared at Howe on the Court.

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Argument analysis: Alito and Ginsburg spar over the rules for timely appeals

Argument analysis: Alito and Ginsburg spar over the rules for timely appealsTuesday’s argument in Hamer v. Neighborhood Housing Services of Chicago was unique in several respects. Justice Stephen Breyer did not ask any questions; Justices Anthony Kennedy and Neil Gorsuch, ordinarily active participants in arguments who stake out staunch positions, asked about one issue each. Justices Ruth Bader Ginsburg and Samuel Alito dominated the argument, with […]

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Argument analysis: Alito and Ginsburg spar over the rules for timely appeals

Tuesday’s argument in Hamer v. Neighborhood Housing Services of Chicago was unique in several respects. Justice Stephen Breyer did not ask any questions; Justices Anthony Kennedy and Neil Gorsuch, ordinarily active participants in arguments who stake out staunch positions, asked about one issue each. Justices Ruth Bader Ginsburg and Samuel Alito dominated the argument, with the latter challenging Hamer’s counsel, Jonathan Herstoff, and the former offering numerous comments and questions to support Herstoff’s argument and to guide his answers on issues.

The question in this case is the proper characterization and application of Federal Rule of Appellate Procedure 4(a)(5)(C), which allows a district court to extend the time for an appellant to file a notice of appeal on a showing of excusable neglect or good cause, but for no more than 30 more days beyond the prescribed time of 30 days from entry of the judgment appealed from. The question for the Supreme Court is whether that rule is jurisdictional and whether it is subject to waiver, forfeiture or equitable exception.

Herstoff led with his core argument – the time limit cannot be jurisdictional because it appears in a court-promulgated rule of procedure rather than a congressionally enacted statute. Justice Elena Kagan and Alito wondered whether that must be true and why. Herstoff responded that it derives from Article III of the Constitution, which grants Congress the power to set the jurisdiction of the lower federal courts, and from a “long line of cases,” including, as Ginsburg highlighted, Justice Clarence Thomas’ decision in Bowles v. Russell. Ginsburg then set Herstoff to discuss the 1991 amendments to 28 U.S.C. § 2107(c), which removed from the statute an identical 30-day limit on extensions of time; under her questioning, Herstoff argued that Congress made significant, more-than-technical changes, eliminating statutory support (and jurisdictionality) from the extension limit.

There followed a lengthy exchange in which Alito suggested that a (nonjurisdictional) “mandatory claim-processing rule” must have some teeth, such as by the rulemaker making the rule not subject to waiver or forfeiture. Ginsburg jumped in to suggest that calling a claim-processing rule mandatory means it must be applied where raised, but not that it is non-waivable or non-forfeitable; otherwise, it would be the same as declaring the rule jurisdictional, which judge-promulgated rules are not supposed to do. Alito then asked who the extension limit in Rule 4(a)(5)(C) is designed to protect; when Herstoff responded that it protects both the appellee and the court of appeals, Alito asked why the court of appeals cannot “put some teeth” in the rule, not by labeling it jurisdictional, but by placing a “thumb certainly on the scale” in applying it. This followed on Kennedy’s one line of questioning from earlier in the argument, as to whether the parties could ask the district court not to enter judgment on an order, lengthening the time for appeal for months or years. Herstoff argued that the doctrines of extraordinary circumstances and bad faith limit such gamesmanship.

Damien Stewart, representing Neighborhood Housing Services of Chicago, argued that NHSC could win if the court labels the rule either jurisdictional, as the U.S. Court of Appeals for the 7th Circuit did, or a mandatory claim-processing rule that was not waived or forfeited, because it was asserted in pre-merits briefing in the court of appeals. But Ginsburg jumped on NHSC’s failure to notify the district court that the order was defective in giving Hamer 60 additional days to appeal. This “allows the defendant to create a trap” by not raising the erroneous extension until more than 30 days have passed and it is too late for the district court to correct its error. Stewart responded that expecting NHSC to alert the district court to the error “ignores the realities of litigation,” in which parties focus more closely on the rules at certain points than at others. NHSC did not look at the rules immediately upon receiving the district court time-extension order (a point that drew an incredulous “You didn’t have an opportunity to look at the rules?” from Ginsburg). Instead, it focused on and argued the unlawful extension in pre-merits briefing in the court of appeals, although only after an erroneous docketing statement that mistakenly conceded the timeliness of the notice of appeal. This caused Justice Sonia Sotomayor and Ginsburg to take turns asking whether forfeiture resulted from the docketing statement conceding jurisdiction and NHSC not raising timeliness until tipped off by the court of appeals; Stewart insisted that cases support his argument that parties preserve issues by raising them in merits briefing and that NHSC had done so even earlier in this case, in pre-merits briefing.

Ginsburg, Kagan and Sotomayor then pushed Stewart on the meaning and significance of the 1991 amendments to Section 2017(c), whether legislative history showed that the removal of the statutory extension limit was inadvertent, and whether Congress could change a rule from jurisdictional to nonjurisdictional by amending the statute. Gorsuch’s lone question came near the end of Stewart’s argument, asking why NHSC did not raise the timeliness issue by cross-appealing the extension order to the 7th Circuit, which Hamer argued in briefing constituted forfeiture. Stewart replied that a cross-appeal is necessary only when an appellee seeks to enlarge its own rights or to lessen the appellant’s rights. Gorsuch responded that NHSC did seek to lessen Hamer’s rights, by extinguishing the longer time to file the appeal that the district court had granted. Stewart argued that the district court lacked the authority to grant that extra time, which relieved NHSC of the duty to cross-appeal.

On rebuttal, Herstoff argued to Alito that NHSC forfeited the challenge to the time extension after the 30th day from the original appeal deadline, the point at which any appeal no longer could be timely under the rules. Alito questioned how requiring appellees to call an invalid time extension to the attention of the court and the opposing party conforms to the adversarial system; Herstoff argued a prevailing party must do so if it wishes to enforce Rule 4(a)(5)(C). Herstoff then engaged with Chief Justice John Roberts and Alito about what NHSC would have cross-appealed from and about the distinction between the court of appeals affirming the district court’s grant of summary judgment and the court of appeals dismissing Hamer’s appeal as untimely. He argued, referring to Gorsuch’s earlier question to Stewart, that NHSC sought to limit Hamer’s rights by getting the court to dismiss the appeal without considering whether summary judgment was properly granted.

The tenor and amount of questioning hints at a court inclined to reverse the 7th Circuit’s conclusion that Rule 4(a)(5)(C) is jurisdictional; Kagan even asked Stewart whether he no longer was relying on that position. Only Alito seemed dubious of Herstoff’s arguments, and his concerns focused more on waiver and forfeiture than jurisdictionality. One open issue, raised by Ginsburg early in Herstoff’s argument, is whether the justices will resolve the waiver and forfeiture issue or remand for the 7th Circuit to conduct that analysis, as it did not do previously.

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When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution

When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. ConstitutionThe first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and […]

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When the chief justice serves as secretary of state: Saikrishna Prakash on separation of personnel in the U.S. Constitution

The first three articles of the U.S. Constitution establish the three branches of the federal government – legislative, executive and judicial. This separation of powers provides a check on the consolidation of control over the government. Montesquieu, a source of inspiration for the framers at the constitutional convention, worried about the loss of liberty and the rise of tyranny should any person or body control more than one of these sources of authority.

Presumably, then, the chief justice of the United States cannot serve as the president’s secretary of state. Au contraire, argued professor Saikrishna Prakash last week in a lecture at the court sponsored by the Supreme Court Historical Society. And in fact this very situation occurred in the nation’s early history. John Jay, who had been the secretary of foreign affairs under the Articles of Confederation, continued to fulfill this role in an acting capacity during the nation’s transition to the new federal government, even after he became the first chief justice. John Marshall, after becoming the fourth chief justice, also continued to serve as secretary of state for President John Adams (and briefly for President Thomas Jefferson). Perhaps more striking than these temporary overlaps, three of the first four chief justices – Jay, Marshall and Oliver Ellsworth – negotiated treaties as special envoys to foreign nations.

What to make of this double duty? Prakash suggested that these overlapping appointments reveal conceptual differences between the 18th century and today about the independence of judicial power.

Even at the start of the republic, Prakash explained, not everyone approved of this practice. Perhaps the most notorious founding father, Sen. Aaron Burr of New York – later vice president, killer of Alexander Hamilton and defendant on charges of treason – led a 1794 Senate campaign against Jay, whom President George Washington had nominated as a special envoy to negotiate a treaty with Great Britain.

Prakash quoted Burr as calling the appointment of a sitting judge to an executive-branch position “contrary to the spirit of the Constitution,” “mischievous and impolitic.” Burr and his Senate allies presented a series of arguments against Jay that may seem intuitive to a modern American audience.

Most generally, the anti-Jay forces contended that the possibility of obtaining a position within a presidential administration would corrupt judges into ruling in such a way as to impress the president and other executive officials. In addition, the supremacy clause of the Constitution declares that treaties with sovereign nations are the law of the land. As a special envoy, Jay would make law that he would then interpret as a judge. Burr and his allies pointed out as well that a chief justice who also served in a presidential cabinet might be unable to preside impartially over a president’s impeachment trial in the Senate. Finally, they wondered whether the Supreme Court needed more work if its chief justice had time to take on an additional assignment.

In contrast, Prakash maintained, Washington – the “general contractor” of the Constitution, as professor Edward Larson argued in a different society lecture – evidently did not see a constitutional problem with nominating Jay, nor did Jay with accepting the nomination. In the end, even the Senate did not object, and it sent Jay off to conduct the negotiations.

A provision in the Constitution prohibits legislators from serving in either of the two other branches. But, Prakash observed, no clause similarly limits judges from engaging in executive functions, or vice versa. Prakash noted that some delegates to the constitutional convention in Philadelphia did propose such a rule, but the group never even voted on the idea.

Although some state constitutions in the 18th century did specifically bar judicial-executive double-duty, overlap of personnel was common, Prakash reported. For instance, the governor of New Jersey at that time served as chancellor of the state’s court of appeals.

Prakash argued that the framers’ apparent acceptance of overlap between judicial and executive positions reveals that legal conceptions at the time of the framing differed from our current understanding. Within English law, the judicial power historically constituted a subcomponent of executive power. Even an independent judiciary maintains a close connection to the executive function because both involve the application of laws. James Madison once described the two sources of authority as representing “two shoots from the same stalk.”

In Prakash’s telling, Congress took other actions that reflect this conceptual merging of the two powers. For example, Congress formed two executive committees – a “sinking fund” committee to buy up debts and a minting committee to verify coins. By statute, the chief justice served on both of these committees.

Returning to Jay, Prakash suggested that political more than constitutional concerns motivated Burr and his associates, who feared Jay was too pro-British to negotiate a favorable treaty. Indeed, popular opinion largely denounced the resultant Jay Treaty. Jay – once widely seen as the natural successor to Washington as president – found his national reputation ruined. Jay did maintain popularity in New York, and he resigned from the Supreme Court to serve as the state’s governor. (However, Prakash noted, nothing in New York or constitutional law would have technically forbidden him from keeping both jobs.)

Prakash closed by acknowledging that contact between the executive and judicial branches is frowned upon today – a contrast from Washington’s frequent practice of turning to Supreme Court justices for advice.

Prakash spoke as part of the historical society’s 2017 Leon Silverman Lecture Series, which this year focuses on Supreme Court justices and presidential cabinets. On October 18, professor Cynthia Nicoletti will give a lecture entitled “Salmon Chase and the Permanency of Union.” More information is available on the society’s website.

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Court issues orders from last week’s conference

Court issues orders from last week’s conferenceThe justices this morning issued orders from their October 6 conference. They did not act on the two challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” nor did they grant review in any new cases. However, they did call for the views of the U.S. solicitor general in […]

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Court issues orders from last week’s conference

The justices this morning issued orders from their October 6 conference. They did not act on the two challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” nor did they grant review in any new cases. However, they did call for the views of the U.S. solicitor general in one case and set two original-jurisdiction cases for oral argument “in due course.”

On Thursday of last week, the two sides in the dispute over the travel ban weighed in on the future of the challenges in the wake of Trump’s September 24 proclamation, which restricted travel to the United States indefinitely by nationals from eight countries (Somalia, Syria, Libya, Iran, Yemen, North Korea, Venezuela and Chad). The September 24 proclamation came as a provision of the March 6 order that suspended travel by nationals from six Muslim-majority countries (Libya, Iran, Somalia, Syria, Sudan and Yemen) was due to expire. The Supreme Court removed the two cases, which had been scheduled for oral argument today, from its oral argument calendar and directed the federal government and the challengers to file briefs addressing whether the disputes are moot in light of the September 24 proclamation and the looming expiration of another provision of the March 6 order that suspended the admission of refugees into the United States. The justices did not take any action on the disputes in their regular order list, but a separate order could come later.

The justices called for the views of the U.S. solicitor general in Apple Inc. v. Pepper, in which the computer giant has asked the Supreme Court to review a ruling by the U.S. Court of Appeals for the 9th Circuit on who qualifies as a “direct purchaser” and can therefore file an antitrust case seeking damages. The plaintiffs in the case, purchasers of iPhones and iPhone apps, contend that Apple monopolized the market for the apps; Apple counters that the 9th Circuit’s decision allowing the suit to go forward is a “dangerous” one because of the “explosive growth of electronic commerce.” There is no deadline for the federal government to file its brief in the case.

The court also put two original-jurisdiction cases, Florida v. Georgia and Texas v. New Mexico, on a path toward oral argument. As Stephen Wermiel explained nearly three years ago, original-jurisdiction cases are lawsuits – usually, although not always, between two states – filed directly in the Supreme Court. Original-jurisdiction cases frequently involve disputes over water rights, as both of these cases do. Although the Supreme Court could in theory hold a trial itself in an original-jurisdiction case, it generally will instead appoint a special master to gather evidence and put together a report, to which both sides can respond. The justices will now hold oral arguments, presumably this term, on the questions raised in the parties’ responses to reports by the special masters in the two cases.

The justices also denied review in several noteworthy cases, including al Bahlul v. United States, in which a Yemeni national held at Guantanamo Bay had asked the court to decide whether military tribunals can try detainees for violations of U.S. law, and Conagra Brands v. Briseno, a class action filed by purchasers of Wesson Oil, who allege that Conagra misleadingly marketed the oil as “100% natural” when it was not. Conagra had argued that the trial court should not certify a class of purchasers, because it is impossible to reliably identify who bought the cooking oil during the time frame at issue, but the district court certified the class, and the 9th Circuit affirmed.

This post was originally published at Howe on the Court.

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OT2017 #2: “Who is the River Master?”

OT2017 #2: “Who is the River Master?”The Supreme Court is one week into the new term, and we’re here to catch you up. We recap last week’s arguments, including the major partisan gerrymandering case, Gill v. Whitford. Wisconsin Solicitor General Misha Tseytlin, who argued the case for the state, joins us as a guest to help walk us through what went down at […]

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OT2017 #2: “Who is the River Master?”

The Supreme Court is one week into the new term, and we’re here to catch you up. We recap last week’s arguments, including the major partisan gerrymandering case, Gill v. WhitfordWisconsin Solicitor General Misha Tseytlin, who argued the case for the state, joins us as a guest to help walk us through what went down at the argument—and to help us figure out what the justices might be thinking. We also discuss whether Justice Neil Gorsuch tipped his hand in either of the reargued immigration cases, Jennings v. Rodriguez and Sessions v. Dimaya; and what the law of contracts can tell us about the plea-bargaining case Class v. United States. We also briefly preview this week’s arguments, including Jesner v. Arab Bank, an important case about the scope of the Alien Tort Statute.

And, of course, we try to solve a lot of mysteries, too. Who is the mysterious River Master, and how can you become one? Why were all the justices but one recused from a case on the orders list? What the heck is going on with the new Supreme Court transcriptionist? Why does the solicitor general’s office have an award named after Orestes “Minnie” Miñoso? And are the Firsties drunk-dialing the First Mondays hotline?

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