SCOTUS for law students: Supreme Court mysteries and the justices’ papers

SCOTUS for law students: Supreme Court mysteries and the justices’ papersIn the month of June, when the Supreme Court issues dozens of decisions to conclude its term, who would not want to be a fly on the wall inside the conference of the justices trying to understand what compromises were made or why cases came out as they did? Rarely has this been more true […]

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SCOTUS for law students: Supreme Court mysteries and the justices’ papers

In the month of June, when the Supreme Court issues dozens of decisions to conclude its term, who would not want to be a fly on the wall inside the conference of the justices trying to understand what compromises were made or why cases came out as they did?

Rarely has this been more true than this past month, in which a seemingly large number of the court’s most closely watched cases produced decisions that decided much less than was anticipated by court-watchers and litigants.

What is one to do to satisfy curiosity about why, for example, the court yet again declined to confront questions about the constitutionality of political gerrymandering of legislative districts?

The short answer is wait. Wait for what, you ask? Often, the answers to nagging mysteries about what happened inside the court and why can only be answered by historians who some time in the future get to pore over the papers of justices who have long since retired or died.

How does this process work and what might one learn from the papers of the justices?

The first thing to know is that there is no uniformity of any kind among the justices and their files and records. Justices are free to save or destroy whatever records they choose, to donate them wherever they want, to make them available whenever they want and to include whatever content they like.

This thoroughly unregulated field is in marked contrast to the papers of presidents, which are governed by federal law. Under presidential records statutes, every piece of paper must be saved and preserved. The Supreme Court, however, has no such statute, and so it is up to each justice to decide what to do with his or her files.

What has this meant in recent decades? Justices have spread their papers around the country. The largest single repository of justices’ papers is the Manuscript Division of the Library of Congress, housed in the Madison Building in Washington, D.C. There, one can find the papers, among others, of Chief Justices Earl Warren, Fred Vinson, Harlan F. Stone and William Howard Taft, and Associate Justices William J. Brennan, Thurgood Marshall, Harry Blackmun, Hugo Black, William O. Douglas, Byron White, Arthur Goldberg and many more.

Among the most recent departures from the court, Justices Sandra Day O’Connor and John Paul Stevens have given their papers to the Library of Congress, but those collections remain closed until some future date specified by the individual justices. The papers of the late Justice Antonin Scalia, who died in February 2016, have been donated to Harvard University and are closed. Justice David Souter, who left the court in 2009, donated his papers, which are closed to the public until 2059, to the New Hampshire Historical Society. The papers of the late Chief Justice William Rehnquist went to the Hoover Institution at Stanford University, while those of the late Chief Justice Warren Burger rest at the College of William and Mary. Some of Rehnquist’s papers are available; Burger’s are not. Justice Lewis Powell’s papers are at Washington and Lee University and are highly accessible through online digitization. Justice Felix Frankfurter split his papers, which are available, between the Library of Congress and Harvard University. (As far as I can tell, Justice Anthony Kennedy has not publicly announced what will happen with his papers, and his chambers did not respond to an inquiry.)

Besides deciding for themselves where to donate their papers, the justices are also free to decide what to donate, which goes more directly to the question of how to solve the mysteries of what happened inside the court. There is a range of possible materials that could be saved in a justice’s files.

These include files on each decided case, which may contain draft opinions as a decision goes through different stages, as well as letters back and forth among the justices asking for changes in drafts, or joining an opinion or advising of plans to dissent or concur separately. Some of these files contain communications between a justice and her law clerks as changes are made, but some justices’ chambers do not save those communications.

Another source of potentially valuable insights is the conference notes of the justices. When the justices meet privately together to discuss and vote on cases, most justices take handwritten notes on what their colleagues said in those discussions. Some researchers consider these files to be the gold standard in historical records, because they place the reader inside the most private court discussions. Others consider these files less reliable because the notes are not verbatim accounts of what was said and reflect the subjective filtering of the note taker.

Either way, these conference notes may be viewed as the most sacrosanct of materials. Justice Hugo Black before his death in 1971 asked his son to burn his conference notes, believing that no one should ever be able to eavesdrop, even years later, on the private discussions of the justices. On a recent trip to the Court of Justice of the European Union in Luxembourg, I learned that records of the deliberations of the justices on that court are supposed to be permanently protected from disclosure.

There are other portions of justices’ files, less relevant to this discussion. Files contain correspondence, speeches, calendars and memos related to governance of the court or the judiciary generally.

What can one learn from a justice’s papers, especially in the “fly on the wall” category?

Justice Stephen Breyer is fond of telling audiences that the story of the Supreme Court is that there is no story, that everything is in the published opinions of the court. It is difficult to reconcile that view, however, with the curiosity and fascination with what happens inside the court when the outcomes are different than what was likely or expected.

Brennan’s papers, to which this writer had access, provide many interesting historical footnotes. They show, for example, how Brennan took over the completion of the case of Brandenburg v. Ohio in 1969 after the resignation of Justice Abe Fortas, who had been drafting the decision. The final version is unsigned by the justices, a per curiam decision, meaning “for the court.” The ruling is a pillar of contemporary free speech law, defining the line between unprotected incitement of illegal action and protected strong dissent and passionate advocacy.

Other examples are in the papers of Marshall, who died in 1993 just two years after leaving the court in 1991, and whose papers immediately became public under the terms of his gift to the Library of Congress.

One very specific example involved an appeal over the Justice Department’s controversial approval of a joint operating agreement between the Detroit Free-Press and the Detroit News. In 1989, the Supreme Court upheld the JOA by a 4-4 tie vote. In that situation, the court gives no information to the public; which justices voted on which side, and perhaps why, remain secret. But in Marshall’s papers, newspaper reporters were able to find out that the 4-4 tie occurred because Blackmun changed his mind at the last moment from approving to opposing the JOA. The vote, it was reported from Marshall’s papers, ended up with Rehnquist, O’Connor, Scalia and Kennedy in favor of approving the agreement, and Stevens, Brennan and Marshall, joined by Blackmun, opposing it. The tie had the effect of upholding the lower court’s approval of the JOA.

Relate those small examples to what we wish we knew today. On June 11, the Supreme Court affirmed by a 4-4 tie a ruling of the U.S. Court of Appeals for the 9th Circuit in Washington v. United States. Kennedy recused himself, discovering that he had taken part in a much earlier version of the case when he was a judge on the 9th Circuit years ago. The affirmance was a victory for tribal fishing rights, but why, how, and what does it mean for future cases? For now, those questions are unanswerable.

On June 4, the court in an unsigned per curiam decision declined to rule on the merits of a case in which federal courts allowed a pregnant minor in immigration detention to obtain an abortion, over the objections of the U.S. Department of Health and Human Services. Although the issue is likely to arise again, the court essentially vacated the rulings in the minor’s favor and ordered the lower courts to dismiss the case as moot. Why did the court not take on this seemingly important and timely issue or address the government’s claim that lawyers for the minor acted unethically? Those questions, too, are unanswerable for now.

And what of the gerrymandering cases? Long divided over whether partisan gerrymandering raises any constitutional issue that federal courts should decide, the justices raised the expectations of the legal and political communities by agreeing to hear two appeals, Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland. But after weeks of anticipation, the justices decided that the challengers in the Wisconsin case did not have sufficient legal injury to challenge the gerrymandering, and then disposed of the Maryland case in an unsigned procedural ruling. Why did the justices decide they were not ready to tackle the constitutionality of political gerrymandering, after so many thousands of words were written in briefs and spoken in arguments? Who blinked?

Legal historians may be able to answer these questions someday, but for now, we wait.

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SCOTUS for law students: Supreme Court celebrity

SCOTUS for law students: Supreme Court celebrityJustice Ruth Bader Ginsburg may be the most “notorious” Supreme Court justice, but she is not the first to achieve some media celebrity while a sitting justice. To be sure, no other justice has been the focus of a box office hit the way Ginsburg is featured in the documentary “RBG.” According to film industry […]

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SCOTUS for law students: Supreme Court celebrity

Justice Ruth Bader Ginsburg may be the most “notorious” Supreme Court justice, but she is not the first to achieve some media celebrity while a sitting justice.

To be sure, no other justice has been the focus of a box office hit the way Ginsburg is featured in the documentary “RBG.” According to film industry reports, the movie was recently showing at more than 400 theaters nationwide and topped $5 million in gross sales. “RBG, a Documentary about Ruth Bader Ginsburg, Has Become an Unlikely Box-Office Hit,” Vanity Fair recently declared.

Who came before Ginsburg? The first answer is Justice William O. Douglas. During his Supreme Court tenure from 1939 to 1975, still the longest in history, Douglas wrote more than 30 books. Among his “firsts” was what most identify as the first television interview of a sitting justice. Aired on ABC on May 11, 1958, “The Mike Wallace Interview” featured a 30-minute discussion with Douglas, primarily focused on a book the justice had just published, “The Right of the People.” The interview focused on threats to American freedom and liberty and was not about the Supreme Court or Douglas as a justice.

Douglas would later publish what is considered by many to be the first memoir written by a sitting Supreme Court justice. (Justice Felix Frankfurter recorded a series of oral histories, which were edited in 1960 into “Felix Frankfurter Reminisces,” covering the period before his Supreme Court appointment in 1939.) “Go East, Young Man,” by Douglas was published in April 1974 and spent several weeks on best-seller lists. The book centered on Douglas’ life before the Supreme Court but still was unusual at the time. A second volume, “The Court Years,” was published posthumously in 1980.

Justice Hugo Black, the Alabaman former senator who served on the Supreme Court from 1937 to 1971, is credited with giving the first television interview in which a sitting justice discussed the court and his own judicial philosophy and views. On December 3, 1968, CBS aired a 32-minute prime-time interview with Black, conducted by correspondents Martin Agronsky and Eric Sevareid, and entitled “Justice Black and the Bill of Rights.” Black discussed his views of the First Amendment and freedom of speech. He defended his view that he did not need to examine the books, magazines and films that were at the center of controversial obscenity prosecutions at the time; because he believed obscene material was protected speech, there was no reason for him to view the evidence, he said.

Black’s interview did not afford him the celebrity that Ginsburg enjoys today, but it was highly unusual for the moment. Already approaching his twilight on the bench, Black reclaimed the limelight occasionally. On February 27, 1971, celebrating his 85th birthday, Black held an unusual press conference, asserting among other things that he had no plans to retire; ill health forced him to leave the court about seven months later.

The second Supreme Court memoir did not bring celebrity with it because it was released posthumously. “The Memoirs of Earl Warren” was published in 1977 after the chief justice’s death in 1974.

Perhaps the next Supreme Court celebrity was in the public eye by virtue of being the first woman appointed to the Supreme Court. Justice Sandra Day O’Connor was nominated to the court by President Ronald Reagan in 1981 and became a prominent figure in the Washington social scene and a much-sought-after speaker among women’s groups of lawyers, judges and other professionals. As the court’s first woman justice, O’Connor drew attention throughout the 1980s, well before she added to her image by publishing her autobiography in early 2002, “Lazy B: Growing Up on a Cattle Ranch in the American Southwest,” co-authored with her brother. To burnish her celebrity status even more, later in 2002, O’Connor published “The Majesty of the Law: Reflections of a Supreme Court Justice.” O’Connor served from 1981 to 2006 and remained a visible figure throughout her tenure.

Rivaling O’Connor’s celebrity, even exceeding it in some circles in the second half of the 1980s, was Justice William J. Brennan. For much of his tenure from 1956 to 1990, Brennan kept a low profile and was little known outside legal circles. Initially this was because he believed it was the proper role for justices to speak largely through their opinions or sometimes through speeches to bar groups, law schools and universities. Then from 1969 to 1982, while his wife, Marjorie, was suffering from cancer and until her death in December 1982, Brennan was rarely seen in public other than on the Supreme Court bench. In March of 1983, Brennan married his secretary, Mary Fowler, and he began a new era as a much more public and visible individual.

It was the confluence of two events that brought a celebrity status to Brennan. In 1986, he celebrated his 80th birthday on April 25 and his 30th anniversary on the Supreme Court in September, and he seemed to decide that it was time to enjoy some recognition for his years of writing important decisions. Suddenly Brennan was everywhere on television and in newspapers and magazines. He granted interviews to most major news organizations, both newspapers and television networks. He was featured in the New York Times Magazine on Sunday, October 5, 1986, portrayed in an iconic cover photo wearing his robe and looking defiant, with his arm stretched against one of the Supreme Court’s columns, as if at age 80 he was just reaching his prime and wanted Reagan to know that he had no plans to give up his seat. The article included a question-and-answer session about the court with Brennan’s former law clerk, Jeffrey Leeds.

In 1986, Brennan agreed to cooperate with this author on a biography that was eventually published in 2010, “Justice Brennan: Liberal Champion.” He also began cooperating with two different public television documentaries on his life.

Between Brennan’s celebrations of 1986 and the bicentennial of the Constitution in 1987, Brennan went from relative obscurity to high-profile celebrity. In May 1987, he appeared in a lengthy PBS interview with Bill Moyers as part of a series, “In Search of the Constitution,” in which some other justices also gave separate interviews, among them O’Connor and Justices Harry Blackmun and Lewis Powell.

Brennan undoubtedly would have liked to enjoy his celebrity for many years, but his health deteriorated, and he was forced to resign from the court in 1990.

The public exposure of justices, if not actual celebrity, has continued to increase in different ways. Chief Justice William Rehnquist published a book about the court in 1987, “The Supreme Court: How It Was, How It Is.” Later editions dropped the subtitle, and Rehnquist went on to write two other books. Justices Clarence Thomas and Sonia Sotomayor have published well-received autobiographies, telling of their lives before they reached the Supreme Court. Justice John Paul Stevens has written two books since he retired in 2010.

And the CBS program “60 Minutes” has become almost a must-stop for justices, with appearances in recent years by the late Justice Antonin Scalia, also the author or co-author of three books, as well as Stevens, Sotomayor and Thomas. And Justice Stephen Breyer, who has written two books while on the court, has made appearances on “The Late Show with Stephen Colbert” and “Charlie Rose.”

Although no other justice has been the focal point of a first-run film (The movie “Marshall” focuses on Thurgood Marshall more than two decades before he joined the Supreme Court.), Scalia was the topic of a well-reviewed play, “The Originalist,” which debuted in Washington in 2015, a year before Scalia died. The one-man Broadway production of “Thurgood” in 2008 focused on Marshall’s life but premiered some 15 years after his death.

Ginsburg’s celebrity was also marked by the creation of an opera, “Scalia/Ginsburg,” which debuted in 2015 and celebrated the friendship of the two justices, who had different ideological viewpoints.

Despite this history of growing visibility and even occasional celebrity for Supreme Court justices, there is little doubt that Ginsburg sits atop the pop chart – an opera, a movie, a fan-created website, t-shirts. No other Supreme Court justice in history has had a box-office hit to show as part of her celebrity, and it seems unlikely that movie theaters will suddenly fill with sequels telling the life stories of other justices. At the moment, and for whatever reason, there is only one Notorious RBG.

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SCOTUS for law students: Counting at the Supreme Court

SCOTUS for law students: Counting at the Supreme CourtHere’s a quick quiz: When does 6 plus 1 not necessarily add up to 7? Counting vote totals can sometimes be a challenge at the Supreme Court, especially when the justices write separate opinions that take different forms and reach different conclusions. One example came earlier this week in the sports-betting ruling, Murphy v. National […]

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SCOTUS for law students: Counting at the Supreme Court

Here’s a quick quiz: When does 6 plus 1 not necessarily add up to 7?

Counting vote totals can sometimes be a challenge at the Supreme Court, especially when the justices write separate opinions that take different forms and reach different conclusions.

One example came earlier this week in the sports-betting ruling, Murphy v. National Collegiate Athletic Association. In a decision written by Justice Samuel Alito, the Supreme Court invalidated a federal law, the Professional and Amateur Sports Protection Act, which prohibited states from allowing sports gambling at casinos, racetracks and other facilities within a state. Alito’s opinion was joined unambiguously and in full by five others: Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, Elena Kagan and Neil Gorsuch. Justice Ruth Bader Ginsburg dissented, joined by Justice Sonia Sotomayor. That would make the vote count 6-2.

But the remaining justice, Stephen Breyer, joined most of Alito’s majority opinion but also part of Ginsburg’s dissent. So was the case decided by a 6-3 vote or a 7-2 vote?

Justice Alito delivers opinion in Murphy v. NCAA (Art Lien)

The Supreme Court has suggested an approach for counting votes when there is no clear majority in a single opinion. More on that below. But there is no rule for how to count votes in a situation like the one created by Breyer’s hybrid vote.

Here’s what happened in Murphy v. NCAA. There were two relevant provisions of the federal law against sports gambling. The one challenged by the state of New Jersey prohibited states from running sports-gambling operations or from passing laws that would allow businesses within a state to offer sports gambling. A second provision prohibited individuals from running sports-gambling operations that are authorized by state or local law.

The Supreme Court ruled that the provision prohibiting states from authorizing sports gambling violated the constitutional principle that Congress may not “commandeer” the states by forcing them to pass laws or to refrain from passing laws. The Constitution recognizes the separate sovereignty of the states as a way of protecting individual liberty, Alito wrote for the majority. Having invalidated this provision of the federal law, Alito concluded that no other parts of the law could stand on their own and that, as a result, the entire law was unconstitutional.

Ginsburg in dissent argued that Congress was not really commandeering states but rather was simply telling states they could not do something that was prohibited by federal law. Moreover, she wrote that there was no commandeering problem with any other part of the federal law and that the prohibition on individuals running sports gambling operations pursuant to state or local law should be allowed to stand on its own.

Breyer straddled the two opinions. He agreed with the majority that the federal prohibition on states taking any steps to allow sports gambling was unconstitutional, but he agreed with Ginsburg that the rest of the statute should be saved and allowed to operate. The practical effect of his position would be that a state could not be forced to pass a law prohibiting sports gambling but that no individual could operate a sports gambling business under any state law permitting the wagering activity – as he put it, “mak[ing] New Jersey’s victory here mostly Pyrrhic.”

So the mathematical puzzle comes out this way: six votes to strike down the entire statute, one vote to strike down only part of the statute, and two votes to uphold the entire statute, or 6-1-2.

This riddle seems to have an answer. But what happens when the Supreme Court is split in a way that produces no clear majority opinion? That issue, too, has an answer, but one that may be in a state of flux.

Since 1977, the Supreme Court has followed the approach dictated in Marks v. United States. The decision in Marks involved retroactive application of the court’s standards for deciding when something is obscene and, therefore, not protected by the free speech guarantee of the First Amendment. The obscenity standard deeply split the court throughout the 1960s until the court settled on a rule in 1973 in Miller v. California. In Marks, the court decided the 1973 rule could not be applied retroactively to pre-1973 activity, meaning the justices had to settle on what pre-1973 rule to apply. This was not an easy task because of the many different views among the justices.

In Marks, the Supreme Court explained how to handle splintered decisions: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,’” Justice Lewis Powell wrote in a 5-4 ruling. In other words, the prescription for the past 40 years has been to comb through concurring opinions to find the least common denominator among the justices.

That answer no longer seems entirely satisfactory. On March 27, the justices heard argument in Hughes v. U.S., an appeal involving the question of whether a criminal defendant who pleads guilty in a plea deal may later benefit from changes in federal sentencing guidelines. The question has split the Supreme Court previously. In 2011, in Freeman v. United States,  five justices said that defendants may benefit from the changes. Kennedy, joined by Ginsburg, Breyer and Kagan, argued that sentences in plea deals generally reflect the sentencing guidelines and, thus, should reflect changes in the guidelines. In a separate opinion, Sotomayor expressed different reasons for her view that the defendant should prevail in the case. Sotomayor thought that plea agreement sentences were based on the sentencing guidelines only some of the time and not always; as a result, she voted to allow William Freeman to benefit from guideline changes, but would not allow all defendants to do so. Four dissenters, in an opinion by Roberts, concluded that sentences in plea deals are always based on the plea bargain itself and should never change with changes in sentencing guidelines. This created a 4-1-4 split.

In recent years, lower federal courts have divided over the meaning of the Supreme Court’s splintered opinions in Freeman. The division within the Supreme Court turned on the degree to which the sentences in such plea deals came from the terms of the plea bargain or from federal sentencing guidelines, and lower courts have struggled to decide what guidance the court intended to give in Freeman.

In the recent oral argument in Hughes, the meaning of Freeman was front and center, and the justices wondered whether the Supreme Court’s approach in Marks provides sufficient guidance. Erik Hughes pled guilty to federal drug and firearms charges and was sentenced to 180 months in prison. When the sentencing guidelines range for similar charges was later lowered, Hughes moved to have his sentence reduced. A federal district court in Georgia and the U.S. Court of Appeals for the 11th Circuit rejected Hughes’ request.

Eric Shumsky for petitioner in Hughes v. United States (Art Lien)

During the oral argument, the justices seemed uncertain about whether the Marks approach is in need of reform. Alito commented that Marks “has been the law for 40 years, and for better or worse, it has had a big effect, I think, on what we have understood to be the jurisprudence of this Court and what the lower courts have understood to be our precedents and on the way in which Justices of this Court go about doing their job.” He suggested that the approach in Marks of finding the narrowest concurring ground “certainly could benefit from some clarification and maybe some refinement.”

And Kagan observed, “We’re in a world in which the first-best option, which is five people agreeing on the reasoning, that doesn’t exist. And so everything else is going to have some kind of problem attached to it.”

Rachel P. Kovner, assistant to the solicitor general, in Hughes v. United States (Art Lien)

Perhaps Breyer best summed up the dilemma of how to count to five votes in the Supreme Court. “So if you ask me to write something better than Marks, I don’t know what to say,” Breyer admitted.

That may be the last word on the Supreme Court’s mathematical dilemma, at least until the court decides to clarify the rules.

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SCOTUS for law students: Gorsuch’s start

SCOTUS for law students: Gorsuch’s startThere has been much commentary in recent months about the aggressive start Justice Neil Gorsuch has made since being sworn in on April 10, 2017. But how does the early stage of his tenure compare to those of his most recent predecessors, Justices Elena Kagan and Sonia Sotomayor? There is no established test to make […]

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SCOTUS for law students: Gorsuch’s start

There has been much commentary in recent months about the aggressive start Justice Neil Gorsuch has made since being sworn in on April 10, 2017. But how does the early stage of his tenure compare to those of his most recent predecessors, Justices Elena Kagan and Sonia Sotomayor?

There is no established test to make this comparison, no formula that produces an easy answer. Examining how each of these newcomers performed specific roles early on at the court may shed some light, however, even if the results are not conclusive.

First, let us look at some basic details. Gorsuch was sworn in just before the court sat for its final two-week session of oral arguments in April 2017; thus he participated in only 13 decisions in his first term. Justice Elena Kagan was sworn in on August 7, 2010; although she was on the court for the entire term, she recused herself in about 35 percent of the decisions because of her prior role as solicitor general, participating in 47 decided cases. Justice Sonia Sotomayor was sworn in on August 8, 2009. Like Kagan, she was on the bench for the entire term, and she participated in most of the decisions in her first year.

Justice Neil Gorsuch (Art Lien)

Justices often say it takes five years to really learn the job, but they begin performing their full duties immediately when the court is in session, and so we can compare their actions.

To begin, there is participation in oral arguments. Virtually all justices ask questions of the lawyers arguing before them, with the exception of Justice Clarence Thomas, who almost never does. By custom, new justices traditionally may be slightly less active at oral argument while they get the hang of the process – how to fit their queries in among the fast-paced questions of their colleagues, when to interrupt the lawyers or other justices, how much follow-up to pursue.

Among Gorsuch, Kagan and Sotomayor, none was slow entering the oral argument fray, but Gorsuch was somewhat more aggressive in his tone than the other two. In his very first argument on April 17, 2017, in Perry v. Merit Systems Protection Board, Gorsuch asked 30 percent of the questions posed to the lawyers, according to statistics compiled by SCOTUSblog. He engaged in several question-and-answer exchanges that spanned several pages in the Supreme Court’s transcript.

In his second argument on the same day, Town of Chester v. Laroe Estates, Gorsuch asked no questions of Neal Katyal, the lawyer for the petitioner, but at one point remonstrated with Shay Dvoretsky, who was representing the respondents, “I’m sorry for interrupting, counselor. If you would just answer my question, I would be grateful.” Then, apparently frustrated by the attempted answer, Gorsuch said, “I’ll let you go.”

In her first oral argument on October 4, 2010, Ransom v. FIA Card Services, Kagan asked questions of all three lawyers in the case, but in a briefer, less aggressive style. She questioned both lawyers in her second argument, Snyder v. Phelps, on October 6, but again in a more direct, terser form.

Sotomayor was extremely active in her first argument, Maryland v. Shatzer, on October 5, 2009. She suggested to then-Maryland Attorney General Douglas Gansler at one point that he had jumped to “a different part of your argument.” She challenged the argument of Celia Davis, the public defender representing the respondent, saying, “Can I ask something. What does that have to do with the hypothetical Justice Alito gave you[?]”

For comparison, if one counts the number of times a justice’s name appears in the oral-argument transcript, Gorsuch spoke 47 times in his first argument, Kagan 10 times and Sotomayor 36 times.

Participation in oral argument is not the only way to look at the activities of new justices, of course. Their written work product can be even more telling, especially writing that is more discretionary than assigned majority opinions.

In looking at how the three justices extended themselves in their own writing, Gorsuch emerges as clearly the most aggressive by any measure.

In his short time on the bench from April to the end of June, 2017, Gorsuch only wrote one majority opinion for the court. But in that same period, he wrote more separate opinions than Kagan or Chief Justice John Roberts or Justice Anthony Kennedy did for that entire term, from October 2016 to June 2017. Gorsuch penned two concurring opinions and two dissenting opinions, four separate writings in all. Kagan had only one dissenting opinion, Kennedy two concurrences and Roberts two dissents.

In their own first terms on the court, Kagan and Sotomayor differed from each other as well as from Gorsuch in their records. Sotomayor wrote eight majority opinions in the term that ran from October 2009 to June 2010, and she also had two concurrences and three dissents. Kagan wrote seven majority opinions and three dissents in her first term, from October 2010 to June 2011. Comparing these numbers, Gorsuch produced four separate opinions in his first three months, Kagan three separate opinions in her first nine months and Sotomayor seven separate opinions in her first nine months.

Gorsuch also leads the field in other separate writings. In their first terms, neither Kagan nor Sotomayor wrote separately on the court’s per curiam opinions. These are unsigned opinions written for the court, often decided on the basis of the petition and brief in opposition without full briefing and oral argument. It is not unusual for one or more justices to dissent from a per curiam decision and to express separate views.

While neither Kagan nor Sotomayor were so moved in their first terms, Gorsuch wrote one such dissent on June 26, 2017, in Pavan v. Smith. Joined by Justices Thomas and Samuel Alito, Gorsuch objected to the majority’s summarily striking down an Arkansas law that required the names of both mothers and fathers on birth certificates but not the names of both parents in same-sex marriages. The majority wrote that the issue had been largely resolved by Obergefell v. Hodges, the 2015 decision finding a constitutional right for same-sex couples to marry. Gorsuch insisted that Obergefell did not address the birth-certificate issue raised by the Arkansas law. And he took an additional swipe at the author of Obergefell, Kennedy, for whom Gorsuch was once a law clerk, remarking that nothing in the ruling addresses the issue at all, “let alone clearly.”

Kagan and Sotomayor also refrained in their first terms from writing opinions dissenting from or agreeing with the court’s refusal to hear a case. These are typically referred to as opinions dissenting from the denial of a petition for a writ of certiorari. Sometimes when a justice writes such a dissent, another member of the court may write an opinion explaining why he or she agrees with the denial. After her first year, Sotomayor became an active user of this type of dissent, but she seemed to bide her time in her first term, perhaps learning the ways of the institution.

Not so with Gorsuch. On the last day of the term on June 26, 2017, he issued three separate opinions. In one, Hicks v. United States, Gorsuch defended the court’s decision to send a case back to the U.S. Court of Appeals for the 5th Circuit, taking issue with a dissent by Roberts. There was no clear need for Gorsuch to express this view, because the case was headed back to the appeals court with or without the explanation, but he apparently felt compelled to explain his own thinking.

On the same day, Gorsuch dissented from a denial of certiorari in Mathis v. Shulkin, a case involving the presumption of medical expertise for U.S. Department of Veterans Affairs medical examiners. Gorsuch said the court should resolve the challenge to the presumption, which may not be supported by law. And Gorsuch, writing for himself and Thomas, suggested that at some time the court should rule on a takings land-use issue raised in Bay Point Properties v. Mississippi Transportation Commisssion which the justices declined to review.

In all of these separate writings, Gorsuch made clear that he had no intention of hanging back to observe the ways of his more senior colleagues. Instead, to a greater extent than Kagan and Sotomayor, Gorsuch jumped in with both feet and made his presence known.

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SCOTUS for law students: Splitting the free speech community

SCOTUS for law students: Splitting the free speech communityTuesday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed that the justices are divided in their views on the conflict between the free-expression rights of a baker who refused to make a wedding cake for a same-sex couple and Colorado’s civil-rights law that protects against bias by businesses based on sexual […]

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SCOTUS for law students: Splitting the free speech community

Tuesday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed that the justices are divided in their views on the conflict between the free-expression rights of a baker who refused to make a wedding cake for a same-sex couple and Colorado’s civil-rights law that protects against bias by businesses based on sexual orientation.

The Supreme Court is not alone in being divided, however. The closely watched case has also split the community of First Amendment lawyers who advocate free-speech rights in a broad range of lawsuits, friend-of-the-court briefs, scholarly articles and panel discussions.

This is unusual, although certainly not unprecedented. Political leaders, philosophers and different groups in our society often debate and disagree about the meaning of free speech and what the First Amendment covers. First Amendment lawyers, however, often tend to view issues and controversies through a similar free-speech filter.

Not so in the friend-of-the-court (or “amicus curiae”) briefs filed in the Masterpiece Cakeshop case. Among more than 100 amicus briefs filed on both sides are a handful – also on both sides – that are written by or written for recognized First Amendment experts in private practice and in law schools. This column examines some of the amicus briefs and explores the differences in their approaches.

First, it may be helpful to give a quick summary of the core arguments in the case. Lawyers for Masterpiece Cakeshop and the baker, Jack Phillips, maintain that his wedding cakes are a form of creative expression and that he cannot be compelled by the government, in this case the Colorado Civil Rights Commission, to create expression with which he disagrees. Lawyers for Colorado and for the now-married, same-sex couple, Charlie Craig and David Mullins, argue that the state civil-rights law prohibits discriminatory business practices, such as refusing to sell a cake because of disagreement with same-sex marriage. Any burden on the baker’s free speech is incidental and allowed by anti-bias laws, they maintain.

This disagreement is not surprising. What is perhaps unusual is that there are free-speech advocates on both sides.

Robert Corn-Revere is a Washington lawyer with Davis, Wright, Tremaine and one of the most active free-speech litigators in the nation. He filed a brief for a nonprofit called the First Amendment Lawyers Association. In the brief, he argued that making a custom wedding cake is creative expression that is entitled to the protection of the First Amendment. State anti-discrimination laws, Corn-Revere argued, cannot be used to compel someone to speak or to create expression against his will. “Creativity cannot be coerced,” he wrote.

Corn-Revere’s brief relies heavily on a 1995 Supreme Court decision holding that the organizers of the annual Boston St. Patrick’s Day Parade could not be forced under an anti-discrimination law to include a gay-rights group in the event. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Supreme Court ruled that the parade organizers could not be compelled, against their beliefs, to embrace the message of supporting gay rights.

Another brief, filed on behalf of 34 legal scholars (many of them highly prominent names in constitutional law and specifically the First Amendment), argues, “This Court has refused to allow an unquestionably legitimate antidiscrimination law to be applied in a way that would seriously intrude on the freedom of expression.” Written by David Langdon, a lawyer in West Chester, Ohio, the brief says Colorado and the same-sex couple seek to violate one of the most famous axioms in First Amendment history, the statement that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The much-quoted line comes from West Virginia State Board of Education v. Barnette, a 1943 decision that said individuals could not be forced to recite the Pledge of Allegiance and to salute the flag against their beliefs.

Among those on Langdon’s brief, mostly conservatives, are former federal appeals court judge and now Stanford Law School professor Michael McConnell; Chapman Law School professor Ronald Rotonda, who has produced decades of constitutional law casebooks; Michael Stokes Paulsen of the University of St. Thomas, another constitutional-casebook author; and Robert Nagel, emeritus professor at the University of Colorado Law School and author of several books on constitutional law, to mention just a few.

The idea that government may not compel individuals to speak is clearly established in First Amendment law, but one question that divides First Amendment experts is whether this case is an example of compelled speech.

The experts on the side of the state and the same-sex couple, who argue that compelled-speech principles are not implicated in this case, are as well-regarded in the fields of constitutional law and the First Amendment as those on the side of the baker. One brief was written by Walter Dellinger, former acting solicitor general, emeritus Duke University Law professor and a partner in the Washington office of O’Melveny & Myers. Dellinger’s brief represents various First Amendment experts: Floyd Abrams, a premier litigator; Vincent Blasi, Columbia University Law School professor; Burt Neuborne, onetime legal director of the American Civil Liberties Union and New York University Law School professor; and Geoffrey Stone, University of Chicago Law School professor, among others.

Dellinger casts the case in a very different light, arguing that it is not really about freedom of speech at all. “Colorado does not regulate the creation of messages,” Dellinger writes. “The Colorado statute … regulates the conduct of selecting customers, and does so well within the parameters of First Amendment protections.” “Petitioners have a First Amendment right to pick their message,” asserts Dellinger, “but not to choose their customers based on sexual orientation.”

Another brief on the side of the state and the couple was filed by professor Steven Shiffrin, who has taught courses on the First Amendment at Cornell Law School for decades and who wrote one of the leading First Amendment casebooks. Like Dellinger, Shiffrin argues that the case involves “discriminatory conduct,” not expression. Noting that the Colorado anti-discrimination law applies not just to the baker, but to hair stylists, chefs, bartenders and more, Shiffrin writes: “To stretch the First Amendment to cover this wide range of goods and services would threaten civil rights law not only with respect to sexual orientation, but also with respect to race, religion, and gender.” Shiffrin maintains that this is not a compelled-speech case because the baker was not required to convey any message.

How will the Supreme Court evaluate these diametrically opposed views of what constitutes speech and whether anti-discrimination laws may be valid even if they burden some amount of free expression? As with many of the court’s close cases, it seems that Justice Anthony Kennedy holds the key to resolving that dilemma. There are plenty of amicus briefs to offer him advice. With First Amendment lawyers writing passionately on both sides, however, it is difficult to predict whether and in what direction the handful of briefs by free-speech experts will sway him.

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SCOTUS for law students: The roles of the chief justice

SCOTUS for law students: The roles of the chief justiceWhen Chief Justice John Roberts takes his place in the middle seat on the bench, he is performing his most visible and widely known duty: presiding over the Supreme Court. But the chief justice also has a number of other roles, both within the judiciary and outside the court. Roberts acted in one of those […]

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SCOTUS for law students: The roles of the chief justice

When Chief Justice John Roberts takes his place in the middle seat on the bench, he is performing his most visible and widely known duty: presiding over the Supreme Court. But the chief justice also has a number of other roles, both within the judiciary and outside the court.

Roberts acted in one of those roles a month ago, when he named several new chairs of committees of the Judicial Conference of the United States, the policymaking arm of the federal judiciary. Consisting of the chief judges and one district judge from each of the federal circuit appeals courts, the Judicial Conference meets twice a year to review rules for the judiciary and to recommend positions on legislation that affects the federal courts. As “Chief Justice of the United States,” Roberts is the head of the entire federal judicial system. In this capacity he is the chair of the 26-member Judicial Conference, presides over the semi-annual meetings and appoints members to committees.

Chief Justice Roberts (Art Lien)

What was especially interesting about the most recent appointments, announced on October 10, was that Roberts selected Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to chair the executive committee of the Judicial Conference. Garland was nominated by President Barack Obama to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia in February 2016. The Republican majority in the Senate refused to consider Garland’s nomination, which lapsed in January. President Donald Trump then successfully nominated Neil Gorsuch, who joined the court in April. Roberts had appointed Garland to be a member of the executive committee in 2013 but has now elevated him to chair the panel, an important position for Garland.

Chairing the Judicial Conference is not the only role the chief justice plays at the top of the federal court system. At the end of the calendar year, the chief justice issues an annual report on the state of the federal judiciary. These reports highlight matters of concern or special interest in the federal courts, ranging from the need for more judges to pay raises or protections for judicial independence. In the most recent report, issued on December 31, 2016, Roberts focused on the important role of federal district judges, saying, “District judges make a difference every day, and leave a lasting legacy, by making our society more fair and just.” Each annual report includes a summary of the workload of the federal courts.

The chief justice also selects the director of the office that handles administrative issues for the courts, the Administrative Office of the U.S. Courts, currently James Duff, and serves as chairman of the board of the Federal Judicial Center, the education and research arm of the federal courts.

As chief justice, Roberts has two other appointing roles. He picks the members of the Foreign Intelligence Surveillance Court, the secretive tribunal that reviews requests for wiretaps and other surveillance for foreign-intelligence purposes. Roberts also appoints judges to the Judicial Panel on Multidistrict Litigation, the entity that determines where trials will take place for cases that are filed in numerous federal district courts.

One of the chief justice’s most unusual jobs is as chancellor of the Smithsonian Institution, which runs the many public museums along the National Mall. As chancellor the chief justice presides over meetings of the Smithsonian’s board of directors, which meets four times a year. Roberts generally presides over the afternoon sessions, leaving the board chairman to run the meetings in the mornings.

Of course, it is his role at the Supreme Court that is the main focus for Roberts. As chief justice, Roberts is responsible for running the court, both judicially and administratively.

On the judicial side, the chief justice presides over the Supreme Court’s private conferences, in which the justices decide which cases to hear and then resolve the cases on the merits. Each year, the justices receive about 6,400 requests for review, known as petitions for certiorari, of which they grant only about 70. For each conference, the chief justice suggests which petitions merit discussion by circulating a “discuss list.” Other justices may add cases to the list. Cases that do not make it on to the discuss list are presumptively denied review by the Supreme Court.

As chief justice, Roberts is the most senior member of the Supreme Court, even though other justices have been there longer. As the court considers whether to grant or deny review in a case, the chief justice speaks first, summarizing each case and indicating whether he favors hearing it. The other justices then follow in order of seniority. This procedure is repeated again after the court hears oral argument in a case. When the justices go into their conference to consider and decide argued cases, Roberts speaks first and summarizes the issues and his take on them.

One of the most significant powers of the chief justice is choosing who will write the majority opinion. If the chief justice is in the majority, the assignment power is his. If the chief justice is in dissent, then the majority opinion is assigned by the most senior justice in the majority. By custom each of the nine justices is assigned roughly the same number of majority opinions, but the chief justice can decide who gets the more important ones. Once the opinions are assigned, the chief justice sometimes rides herd to make sure his colleagues keep the flow of opinions moving. Chief Justice William Rehnquist would refuse to give new opinions to colleagues who were well behind on cases they had already been assigned.

In other respects, the chief justice is often described as “first among equals.” He can try to set a tone for the Supreme Court, for example, encouraging the justices to interrupt each other less during arguments, or letting lawyers arguing cases complete a sentence when their time runs out. (Rehnquist used to interrupt lawyers in mid-sentence, occasionally even in mid-syllable when their time expired.) To promote civil discourse in the courtroom, Roberts has encouraged lawyers to refer to opposing counsel as “my friend” or “my friend on the other side.”

Administratively, the chief justice manages the Supreme Court as an institution, relying on a staff for personnel matters, building and maintenance issues and more. It also falls to the chief justice and his staff to deal with controversies or criticism of the court. For example, Jeffrey Minear, counselor to Chief Justice Roberts, recently explained in a letter to a bipartisan group of members of Congress why the court would not have live audio streaming of the oral argument on October 3 in the important Wisconsin gerrymandering case. “I am sure you are, however, familiar with the Justices’ concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices,” Minear wrote. Chief Justice Roberts has also occasionally responded to criticism of the court’s lack of a code of ethical conduct for the justices.

Finally, the chief justice has two other critical roles. One happens rarely, and the other recurs every four years. According to the Constitution, the chief justice presides over Senate impeachment trials of the president. Rehnquist presided over the trial of President Bill Clinton, who was not convicted by the Senate.

The chief justice also administers the oath of office to the president at each inauguration. Roberts swore in Trump in January and administered the oath to Obama after the 2008 and 2012 elections. It is an historic anomaly that Roberts has actually administered the oath to Obama four times. At the inauguration in 2009, Roberts mixed up a line and Obama followed him down the wrong rhetorical path. To be safe, the oath was repeated the next day at the White House. And in 2013, Roberts administered the oath to Obama at the White House on Sunday, January 20, when the president legally had to be sworn in. But the oath was repeated the next day at the inauguration ceremony on Monday, January 21.

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SCOTUS for law students: Waiting for Gorsuch

Justice Neil Gorsuch has cast his first consequential vote on the Supreme Court, denying a request for a stay of execution filed by several death-row inmates, and participated – actively, by many accounts – in the court’s April argument session. The next major milestone for the newest justice will be his first majority opinion for […]

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Justice Neil Gorsuch has cast his first consequential vote on the Supreme Court, denying a request for a stay of execution filed by several death-row inmates, and participated – actively, by many accounts – in the court’s April argument session. The next major milestone for the newest justice will be his first majority opinion for the court.

If history is a guide, the moment, which is likely to occur in the next six weeks before the court recesses for the summer, will be more memorable as a rite of passage than as a landmark of the law.

What Gorsuch is writing will remain secret until the decision is announced. In all likelihood, however, Gorsuch was quickly assigned a majority opinion to write by Chief Justice John Roberts after taking part in 13 oral arguments between April 17 and April 26. Under the court’s practice, when the chief justice is in the majority, he makes the assignments for majority opinions in the cases; if the chief justice is in dissent, then the senior associate justice in the majority makes the assignment, most often Justice Anthony Kennedy on the current court.

Justice Neil Gorsuch (Art Lien)

For some part of the court’s history, this next step for Gorsuch would have been governed by well-established and much-respected tradition. According to custom, a new justice’s first opinion assignment was in a deliberately uncontroversial case, and all of the other justices would take pains to join the opinion and make it unanimous. The purpose of the tradition was apparently to welcome the new justice with a show of the collegiality on which the court prides itself. So settled was this custom that when Justice William Brennan issued his first decision on December 3, 1956, an 8-1 ruling in a tax case (Putnam v. Commissioner of Internal Revenue), the dissenting Justice John Harlan wrote him privately to say he was “sorry” that he could not “sign up at once with your first.”

The current vitality of this practice is a subject of some debate. Commentators and bloggers about the court still refer to the tradition. If the tradition still exists, however, it seems to be honored only some of the time. Among the eight justices whom Gorsuch joined on April 10, half of them, appointed by Republican presidents, wrote unanimous first decisions and the other half, appointed by Democrats, did not.

Among the longest-serving justices, the first decisions of Kennedy in 1988 and Justice Clarence Thomas in 1992 were unanimous. Among the more junior justices, the first opinions of Roberts in 2005 and Justice Samuel Alito in 2006 were also unanimous.

Other current members of the court did not have the same experience. Justice Ruth Bader Ginsburg’s first in 1993 was decided 6-3 with Thomas in dissent, joined by Kennedy and Justice Sandra Day O’Connor. Justice Stephen Breyer’s first in 1995 was 7-2 with Thomas and Justice Antonin Scalia each dissenting.

Ginsburg recalled in 2015 what happened when she announced her first decision, John Hancock Mutual Life Insurance Co. v. Harris Trust and Savings Bank, a ruling on the complicated Employee Retirement Income Security Act. As Ginsburg read a summary in the courtroom, she said, O’Connor, despite joining the dissent, wrote her a note that said, “This is your first opinion for the court. It is a fine one. I look forward to many more.”

Ginsburg said she wrote similar notes to Justices Sonia Sotomayor and Elena Kagan when they announced their first decisions. Those notes were likely very welcome, because both Sotomayor’s and Kagan’s first decisions prompted some of their colleagues to write separately.

Sotomayor’s first opinion in 2009 occasioned an opinion concurring in part and concurring in the judgment by Thomas. Although Thomas agreed with the outcome in Mohawk Industries, Inc. v. Carpenter, a civil procedure ruling, his separate opinion provoked commentary about its tone, especially given that it was Sotomayor’s first decision. Thomas concluded his opinion by criticizing the “value judgments” in which he said Sotomayor “subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.” One news story at the time reported that Thomas “took a swipe at his new colleague.”

Kagan’s first decision in 2011 was accompanied by a Scalia dissent. Ransom v. FIA Card Services, N.A. was a bankruptcy ruling. In dissent, Scalia set forth a straightforward legal disagreement with Kagan, omitting the strong language that often marked the late justice’s dissents.

How quickly might Gorsuch produce his first opinion? Among the current justices, Roberts was the fastest, turning out his first decision about four weeks after oral argument. Kennedy was a close second, taking about five weeks.

Much can be learned from a justice’s decisions, but the lessons from the very first decision may be limited. Eventually justices make basic style choices: whether to reveal the result at the beginning of the opinion or only at the end; whether to minimize or make full use of footnotes; what tone to adopt in writing; how much to respond to dissenting opinions. Court watchers will look for such clues in Gorsuch’s first opinion, but those hints may be hard to find.

If past practice is followed, it will also be difficult to gain any ideological insight from Gorsuch’s first decision. Tradition has it that the first decision for a justice is generally in a case that is not one of the more controversial or visible of the term, so this one may shed little light on Gorsuch’s analytical approach to important issues.

Gorsuch’s first decision is likely to become a footnote to history, eclipsed by a long career on the Supreme Court bench. For now, though, it is a milestone eagerly awaited.

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SCOTUS for law students: The Senate votes

SCOTUS for law students: The Senate votesThe showdown over the nomination of Judge Neil Gorsuch to the Supreme Court plays out in the full Senate this week, and the scene may be a dramatic one. Both Democratic and Republican leaders have vowed an all-out fight, highlighted by a Democratic threat to keep the nomination from getting to a vote and a […]

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SCOTUS for law students: The Senate votes

The showdown over the nomination of Judge Neil Gorsuch to the Supreme Court plays out in the full Senate this week, and the scene may be a dramatic one.

Both Democratic and Republican leaders have vowed an all-out fight, highlighted by a Democratic threat to keep the nomination from getting to a vote and a Republican vow to change historic Senate rules, if necessary, to see that Gorsuch is approved.

Republican leaders have accused Democratic senators of rank partisanship in their effort to block or defeat the nomination of Gorsuch by President Donald Trump. The nominee, Republican senators say, is highly qualified in experience, education and intellect to take the place of Justice Antonin Scalia, who died on February 13, 2016. Gorsuch shares many of Scalia’s views, they argue, including a faithful commitment to the original meaning of the Constitution.

Democrats say the Republicans stole the seat by refusing even to consider President Barack Obama’s nomination of Judge Merrick Garland, which expired on January 3. Garland, they say, was at least as well qualified in every respect as Gorsuch. Moreover, Democrats say, Gorsuch is too conservative, committed to curtailing the regulatory power of federal agencies and narrowing the Supreme Court’s protection of civil rights and liberties.

How will it all play out? There are enough variables in the process to create suspense about the answer to that question. Will the Democrats try to block a vote with a filibuster? If they do, will Republicans change the rules of the Senate to allow a final vote on the Gorsuch nomination?

The final stages of the process began on Monday when the Senate Judiciary Committee voted to approve the nomination, sending it to the Senate floor on a straight party-line vote, with 11 Republicans supporting Gorsuch and nine Democrats voting to oppose him.

What happens next is a form of high political theater, with part of the story foreordained by Senate rules and part improvised on the Senate floor and in back rooms near the ornate Senate chamber.

Senate Minority Leader Chuck Schumer (D-N.Y.) has vowed that Democrats will filibuster the nomination, a procedure that involves senators on the Senate floor objecting to any vote on the nomination. If that happens, current Senate rules require 60 votes to stop the filibuster through the process known as invoking cloture.

Schumer has insisted that it has become the norm for Supreme Court nominees to get at least 60 votes, citing the confirmations of Chief Justice John Roberts and Justices Samuel Alito, Sonia Sotomayor and Elena Kagan. Roberts (78-22), Sotomayor (68-31) and Kagan (63-37) all received more than 60 votes. Alito was confirmed by a 58-42 vote, but the Senate had earlier voted to invoke cloture by a vote of 72-25. Republican senators say there is no rule that Supreme Court nominees need 60 votes and that Schumer’s contention is simply an attempt to justify blocking Gorsuch.

Because Democrats have been clear about their intent to filibuster, Senate Majority Leader Mitch McConnell (R-Ky.) will call up the nomination today and then immediately file a motion invoking cloture, a move that requires 16 senators to sign a petition to end debate. Once the cloture petition is filed, two days must elapse before the Senate can vote on cloture. A cloture motion filed today will yield a vote on Thursday, according to Senate Rule 22, which governs the filibuster. The Senate can debate the nomination during that period or move on to other business and come back to it when the cloture vote occurs.

If the drama does come to a head on Thursday, here is what might happen. The cloture vote is a formal roll call of all 100 senators. Republicans would have to get 60 votes for cloture, which when invoked starts the clock running on 30 hours of debate followed by a final vote.

The current makeup of the Senate is 52 Republicans, 46 Democrats and two independents who meet and caucus with the Democrats. The Republicans will need to keep all 52 votes and pick up eight more from the Democrats to invoke cloture. Schumer predicted on Sunday that the Republicans would fall short. Only three Democrats, as of this morning, say they will vote for Gorsuch; one additional Democrat says he will oppose the filibuster by voting for cloture. That still leaves the Democrats a margin of several senators in holding the 41 votes they need to defeat cloture.

In some cases, the failure to get cloture might mean the nomination is dead. However, the next step may be even more dramatic. McConnell has vowed that if necessary, he will move to amend the Senate rules to do away with the filibuster for Supreme Court nominations. Through a parliamentary maneuver, commonly known as the “nuclear option,” the rules change can be accomplished with a simple majority of 51 senators. Although some Republican senators have expressed reluctance to change Senate rules, they may be heavily pressured by McConnell and the White House to fall in line if that is the only way to confirm Gorsuch. Both Trump and McConnell have staked considerable political capital on getting Gorsuch confirmed.

To set the nuclear option in motion, McConnell would ask for recognition on the Senate floor right after the cloture vote fails, calling for a point of order. His point of order would be essentially that the requirement of 60 votes to consider a Supreme Court nomination is unconstitutional because the Constitution does not specify any higher number for such nominations. A point of order cannot be debated and takes precedence over other matters in the Senate.

Once McConnell has made the point of order, the presiding officer of the Senate, either Vice President Mike Pence or the president pro tempore of the Senate, currently Sen. Orrin Hatch (R-Utah), would immediately declare the current rule unconstitutional. Democrats would then immediately appeal that ruling, but McConnell would move to table the appeal. Tabling the appeal requires only a simple majority vote. After the appeal has been tabled, the Senate rule would revert to the basic practice of a simple majority vote for Supreme Court nominations. With that change in place, the Senate would need only 51 votes to invoke cloture. The change would set the stage for what McConnell has announced as a final vote to approve Gorsuch on Friday.

Why is this battle over the filibuster so dramatic? The filibuster has been used in the Senate for more than 150 years. The term, according to the Senate’s website, is derived from a Dutch word meaning “pirate.” The filibuster was formally incorporated into Senate Rule 22 in 1917 and required a two-thirds vote of the Senate to cut off debate. Although the filibuster was not used that often, it was considered a hallmark of the deliberative nature of the Senate that even a single senator could hold the floor and force debate to continue.

Senate attitudes have been changing, however. As the institution has grown more partisan, the filibuster has itself become a target of debate. In 1975, the Senate changed the rule to require only a three-fifths vote to break the filibuster, currently 60 senators. In 2013, in a bitter partisan fight, the Senate changed the rule again so that debate on all nominations by the president, except those for the Supreme Court, may be halted by a simple majority vote.

Although Democrats now are likely to object to changing the rule, it was the Democratic Senate leadership that made the 2013 rule change. At the time, Democrats accused Republican senators of unfairly blocking Obama’s nominees to federal district and appeals courts, and they used the nuclear option to change the rule for all federal appointments except those of Supreme Court justices.

Historically, the filibuster has been used most famously by senators to block civil rights legislation. Southern senators prevented consideration of the 1964 Civil Rights Act for 60 days before it was finally approved. According to the Senate, the late Sen. Strom Thurmond of South Carolina has the record for talking on the Senate floor: Thurmond spoke for 24 hours and 18 minutes in order prevent a vote on a 1957 civil rights law.

Filibusters have been rare for Supreme Court nominations, but the Gorsuch nomination is not the first time the filibuster has come into play in this context. The most recent attempt to filibuster a Supreme Court nomination, discussed above, was the confirmation of Alito in 2006. The most successful filibuster was in 1968, when Republicans and Southern Democrats combined to block the nomination of Justice Abe Fortas to succeed Chief Justice Earl Warren. There were only 45 votes for cloture, so a vote on confirmation was blocked, and President Lyndon Johnson withdrew the Fortas nomination. Warren was eventually replaced by Chief Justice Warren Burger, who was nominated by President Richard Nixon in 1969.

Other Supreme Court nominees have failed to gain Senate confirmation. The earliest example dates back to 1795, and the most recent occurred in 1987, when the Senate rejected the nomination of Judge Robert Bork. Most of these rejections did not involve filibusters, however.

Whatever the outcome of the Gorsuch nomination, this will be a week filled with history, politics and drama in the Senate.

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SCOTUS for law students: Predicting Supreme Court justices

SCOTUS for law students: Predicting Supreme Court justicesThe nomination of Judge Neil Gorsuch has moved into a phase that is unique to the Supreme Court confirmation process: trying to predict how a justice will vote on particular issues and cases in the future. This predictive process may occur in two phases. The first is well underway – vast amounts of commentary and […]

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SCOTUS for law students: Predicting Supreme Court justices

The nomination of Judge Neil Gorsuch has moved into a phase that is unique to the Supreme Court confirmation process: trying to predict how a justice will vote on particular issues and cases in the future.

This predictive process may occur in two phases. The first is well underway – vast amounts of commentary and analysis about how Gorsuch may handle everything from employment-law cases to white-collar-crime issues. The second phase will take place in just over a month, when the 20 members of the Senate Judiciary Committee try to figure out what kind of questions to ask the nominee that will actually shed any light on his views.

The stakes are enormous. Liberals hope to ascertain just how conservative Gorsuch really is, and some want to find a way to block his confirmation if their worst fears prove to be true. Conservatives want to be certain that he is genuinely conservative, cut from the mold of Justice Antonin Scalia, whose death a year ago created the vacancy that President Donald Trump has nominated Gorsuch to fill.

For liberals the struggle is in some ways a full dress rehearsal for the fight over the next vacancy that occurs on the Supreme Court after this one is filled. The conventional wisdom is that Gorsuch will simply restore the court to the balance that existed when Scalia was still on the bench: four solid conservatives, four liberals and Justice Anthony Kennedy in the middle, often deciding the outcome in close cases. If the next vacancy is created by the departure of any of the three oldest justices – Ruth Bader Ginsburg, 83; Kennedy, 80; or Stephen Breyer, 78 – then the appointment of a conservative would dramatically tip the balance on the court.

For conservatives the current struggle is also in part to lay the foundation for the fight over the next vacancy. However, it is also part of a prolonged effort to be sure that the nominees of Republican presidents are genuine conservatives. Conservatives value highly the need for reliable predictions because they believe they have been burned by a series of nominees by Republican presidents who turned out to be disappointingly moderate justices, including Harry Blackmun and Lewis Powell (appointed by Richard Nixon); John Paul Stevens (Gerald Ford); Sandra Day O’Connor and Kennedy (Ronald Reagan); and David Souter (George H.W. Bush). “No more Souters,” is a frequent battle cry for conservatives today.

With that understanding of what is at stake, let us turn to the fascination, perhaps even obsession, with predicting the behavior of Supreme Court nominees.

In just over two weeks since the nomination of Gorsuch was announced, hundreds of thousands of words have already been written trying to predict what impact he will have on particular legal fields or how he may approach specific issues. This commentary covers a wide range of perspectives, sometimes seemingly contradictory. First, there are the statistical analyses. For example, The Washington Post ran a column earlier this week by two political science professors who studied Gorsuch’s decisions on the U.S. Court of Appeals for the 10th Circuit in cases that were later reviewed by the Supreme Court. Their conclusion was that “Gorsuch may be more conservative than Justice Clarence Thomas.” But a day earlier, the blog Empirical SCOTUS analyzed the language in opinions written by Gorsuch and ran its conclusions under the headline: “Scaling Judge Gorsuch’s Opinions: Hints of a Possible Centrist.” When Gorsuch was nominated, The New York Times displayed a chart, based on an analysis by several other professors, that showed him as more conservative than both Scalia and Justice Samuel Alito but less conservative than Thomas.

Then there is the widest imaginable array of predictive analyses of specific legal issue areas. These range from a Scientific American blog analysis finding it “difficult to draw any firm conclusions” on Gorsuch and environmental law to a suggestion at Crain’s Cleveland Business that Gorsuch shows “a consistent reluctance to second-guess employer decisions.” An Associated Press analysis says he has been sympathetic to free speech claims but also supportive of religious groups in suits against the government. Another blog attempted with little success to discern how Gorsuch would view white-collar-crime cases. Many of these analyses are inconclusive because there are too few cases to evaluate and because as a federal appeals court judge, Gorsuch was constrained by existing precedents.

It is difficult to glean much from this commentary. And when the scene shifts to the Senate Judiciary Committee, senators will confront the challenge of how to get any accurate, predictive measure of this Supreme Court nominee. If the past is any guide, it will not be easy.

When Joe Biden was still a senator from Delaware, he referred to the Supreme Court confirmation process as “Kabuki theater.” This is because it resembles an odd dance in which senators try to elicit useful information from nominees who, in turn, try hard not to tell the Senate anything useful.

The dilemma is that most nominees to the Supreme Court feel that they cannot answer any questions that may commit them to specific positions or to views on particular cases. If they do, then they may have to recuse themselves from participation on those issues or cases when they come before the Supreme Court. Our judicial system, the prism of a nomination clarifies, turns on the idea that justices must approach each case with an open mind, committed to considering the specific facts and legal arguments for that dispute without preconceived notions.

Sparring over the merits of this approach has already begun among senators. Senate Majority Leader Mitch McConnell (R-Ky.) calls this the “Ginsburg standard” after a statement made by Justice Ruth Bader Ginsburg during her confirmation process. “No hints, no forecasts, no previews – that is what has become known as the Ginsburg standard,” McConnell said recently in a Senate speech.

Senate Minority Leader Chuck Schumer (D-N.Y.) has a different view. After he met privately with Gorsuch, Schumer wrote, “Judge Gorsuch must be far more specific in his answers to straightforward questions about his judicial philosophy and opinions on previous cases. He owes it to the American people to provide an inkling of what kind of justice he would be.”

Are there questions senators may ask and nominees may answer that will have any genuine predictive value? The answer is unclear. Some legal scholars have suggested that senators question nominees specifically about how they view past cases decided by the Supreme Court. This, they argue, would provide insight into the nominees’ thinking but would run less risk of creating conflicts for them as justices. Perhaps, but during his confirmation hearing in 1986, Scalia declined to discuss any cases, famously refusing even to answer questions about Marbury v. Madison, the 1803 landmark decision that laid the groundwork for judicial review. Some nominees have been more willing to discuss some past cases to a limited extent; almost all nominees discuss Brown v. Board of Education, for example.

Other lines of questioning are possible. Senators often ask about legal doctrines and tools: How much deference should courts show to the elected branches of government? What role should legislative history play in judicial interpretation? Does a nominee believe in the existence of implied rights in the Constitution, like privacy? What role does international law play in U.S. courts? Although these questions do not involve commitments on specific cases, nominees will still sometimes refuse to answer them because to do so may force them to outline particular approaches to deciding cases. Recent nominees have generally been willing to answer these questions but often in circumspect ways that do not reveal much about the way they would approach particular issues.

The frustrating result for the senators is that nominees often resort to less-than-insightful platitudes, like the oft-quoted declaration by Chief Justice John Roberts that judges are just like baseball umpires, calling balls and strikes, but not pitching or batting.

Judging by the commentary, Gorsuch will confront this dilemma most clearly over his expressed doubts about the important Chevron doctrine, a Supreme Court rule that says courts should defer to reasonable federal-agency interpretations of laws they administer. Adopted in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the rule has been much debated and heavily criticized by Gorsuch. Senators will pummel him with questions about what he has said and written about it. But if he is to hear cases as a justice on how to apply the Chevron doctrine or whether to overrule it, will he say he has to refrain from discussing it in any more detail than he already has, or will he feel obligated to explain his position?

This is how the hearings for Gorsuch will likely play out in the Senate Judiciary Committee. Between now and March 20, when the hearings begin, it is a safe bet that the senators and their staff will work hard to map out questions that will try to make the hearings more productive, whether their goal is accurate prediction of the nominee’s likely rulings or just a better understanding of what makes him tick.

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SCOTUS for law students: Message to lawyers

SCOTUS for law students: Message to lawyersLately, the Supreme Court seems to be sending a message to the lawyers who practice before it: Do not ask the court to grant review of an issue and then try to change the subject. In several recent cases, the justices have voiced frustration at what they think may be attempts to change the focus […]

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SCOTUS for law students: Message to lawyers

Lately, the Supreme Court seems to be sending a message to the lawyers who practice before it: Do not ask the court to grant review of an issue and then try to change the subject.

In several recent cases, the justices have voiced frustration at what they think may be attempts to change the focus of arguments after the court has agreed to hear a case. If the justices believe the issues have shifted, they at the very least may admonish the lawyers. In more extreme circumstances, as happened recently, they may dismiss a case outright.

This willingness to dismiss a case seems odd, considering that the court is not granting enough cases to occupy its allotted oral-argument time slots. Counting the announced arguments for its January sitting, the court has heard or scheduled 33 hours of argument this term but has left nine hour-long slots unused. Clearly, the justices are not trying to shed cases out of overwork. So what would be the harm, one might ask, in deciding a case in which the lawyers have come up with a different argument than the one considered by the lower court (assuming that is actually what happened)? The answer, almost certainly, lies in a jurisdictional principle taught to law students and refreshed in appellate advocacy seminars: Argue the issues that were properly raised below and that were presented to the Supreme Court in the petition for certiorari. Arguments in the Supreme Court are generally supposed to be limited to those raised in the lower courts. Review of a lower court ruling is not an invitation to come up with new ideas and to make new arguments that were never raised at earlier stages of a case. As with virtually every rule, there are exceptions, of course, but the general principle is widely recognized that appellate review is limited to issues and arguments properly raised below.

Given this principle, one might assume that Supreme Court advocates would be unlikely to stray from the questions presented in a petition for review. One possible reason for them to do so, though, is that Supreme Court cases are often briefed and argued by lawyers who specialize in advocacy before the court and who may not have handled any part of the case before that point. Sometimes, the Supreme Court specialists are not even hired until after the court has granted a petition for certiorari. If a specialist takes on a case at the last stages and believes that the arguments previously made are not as strong as they could be, it must be tempting to try to reframe the issues in the most favorable light. Indeed, presumably that is why the specialist was hired.

So how does the court respond when it senses a shift in the focus of a case? There are three examples to consider from this term.

In what the Supreme Court obviously considered the clearest of the three, the justices on November 17 dismissed two petitions filed by Visa, Inc. The cases, Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos, were granted review by the court last June and were scheduled for oral argument on December 7. In the order dismissing the cases, the court said that Visa had changed its argument from the question it had presented in its petitions for certiorari. Visa had added new lawyers to the case to handle the briefing and, presumably, the oral arguments, which never took place.

The Visa cases involve class-action antitrust lawsuits in which consumers and operators of independent ATM machines accused Visa, Mastercard and some banks of conspiring to set and maintain higher fees for using ATM machines to withdraw money. A federal district court in Washington dismissed the lawsuits for lack of standing and for failure to state a clear antitrust violation. The U.S. Court of Appeals for the District of Columbia disagreed and reinstated the lawsuits, prompting the credit card companies’ appeals to the Supreme Court.

In their petitions to the Supreme Court, the credit card companies had urged the justices to decide whether antitrust liability could be found solely on the basis that the companies adhered to the rules of a business association to which they belonged and that set the ATM fees. But at the merits stage of the case, lawyers for the class-action plaintiffs and for the government maintained, the credit card companies changed their argument, claiming that there could be no antitrust conspiracy because the banks and their credit card network were a single entity. Although the credit card companies replied that their argument was still well within the issue they had raised in the original petitions, the Supreme Court disagreed.

This is not the first time in recent memory that the court has been concerned with whether it is deciding the right questions. In dismissing the Visa petitions, the Supreme Court referred to a ruling in 2015, City and County of San Francisco v. Sheehan, in which the court took the unusual step of dismissing one question raised in the case and deciding a second question. The issue the court dismissed in that case was whether the Americans with Disabilities Act requires police officers to make accommodations when arresting an “armed, violent and mentally ill suspect.” The court, in an opinion by Justice Samuel Alito, said that San Francisco had abandoned the original, broad question of whether the ADA applied at all and was only maintaining that the law did not apply to the actions of individual police officers in the case. The portion of the decision dismissing the issue after it had been briefed and argued was unanimous. In a separate opinion, the late Justice Antonin Scalia was so perturbed that he accused San Francisco’s lawyers of a “bait-and-switch” and said the court should not even have decided the second issue in the case, in which the majority found that the city’s officers were entitled to qualified immunity for injuries caused when they arrested the suspect.

This term, soon after the court dismissed the Visa cases, several justices closely questioned lawyers arguing in two other cases about whether they too were engaging in a form of bait-and-switch.

On November 29, during oral argument in Moore v. Texas, Chief Justice John Roberts pressed the attorney for the petitioner, Bobby Moore, along those lines, asking whether the case “got in the door by a question presented that is a little more eye-catching” than the argument the attorney was making on the merits. The case challenges the guidelines used by the state of Texas in death penalty cases to determine if someone is intellectually disabled and, therefore, protected by the Eighth Amendment to the Constitution from being executed. Moore’s petition for certiorari had framed the question presented as one involving Texas’ prohibition against the use of current medical standards to assess intellectual disability; Roberts suggested that Moore was now mounting a broader challenge to the Texas approach that was “not encompassed within that question presented.” After a lengthy exchange on the issue, the justices moved on, and the case remains on the court’s docket for decision.

There was a similar exchange on December 7 in Czyzewski v. Jevic Holding Corp., a bankruptcy dispute. During oral argument, Alito observed to the lawyer for the petitioners, a group of former employees of the bankrupt company: “Something strange seems to have happened between the petition stage and the briefing stage in the case.” Alito suggested that the employees had changed the focus of their argument from one about a split among federal appeals courts over legal rules for distributing bankruptcy settlement proceeds to one involving special structured bankruptcy dismissals. The lawyer responded, and again, the justices moved on. This case, too, remains on the court’s docket.

Is there a lesson in these several recent examples of Supreme Court scrutiny of the arguments being made? Perhaps not surprisingly, Scalia stated the proposition most forcefully in his 2015 separate opinion when he said the court’s goal was “to avoid being snookered, and to deter future snookering.”

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

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