Travel ban remains on hold following 4th Circuit ruling

Travel ban remains on hold following 4th Circuit rulingA divided U.S. Court of Appeals for the 4th Circuit today largely upheld a federal district judge’s ruling blocking the implementation of the executive order signed by President Donald Trump on March 6. The order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as […]

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Travel ban remains on hold following 4th Circuit ruling

A divided U.S. Court of Appeals for the 4th Circuit today largely upheld a federal district judge’s ruling blocking the implementation of the executive order signed by President Donald Trump on March 6. The order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States, but a federal judge in Maryland put the order on hold 10 days later. That order now remains in place, setting up a potential showdown over the travel ban in the Supreme Court.

Writing for the court in an opinion that was joined in full by six other judges, with three more agreeing with the result in the case, Chief Judge Roger Gregory framed the issue before the 4th Circuit starkly: whether the Constitution protects the challengers’ “right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Congress, the court concluded, gave the president “broad power to deny entry to aliens, but that power is not absolute.”

The court began with an important threshold question: whether the challengers – who have argued that the executive order violates (among other things) the Constitution’s bar against favoring one religion over another – have a legal right to sue at all. They do, the 4th Circuit concluded today, because at least one plaintiff, known as “John Doe #1,” has felt “the direct, painful effects” of the executive order “in his everyday life.” Doe is seeking a visa for his wife, who is currently in Iran; if the order were in effect, the court explained, there would be a “real and immediate threat that it would prolong” Doe’s separation from his wife. And as a Muslim born outside the United States, Doe suffers from “feelings of marginalization and exclusion.”

The court then turned to another central point of contention in the case: whether the district court used the right legal test to evaluate the challengers’ claims that the executive order violates the Constitution. The district court relied on a standard known as the “Lemon test,” first outlined in a 1971 Supreme Court case, that courts use to determine whether a law violates the Establishment Clause. However, the government contended that the court should look instead at a 1972 case involving the denial of a visa to a Belgian journalist who described himself as a Marxist, which prescribes a fairly limited and deferential review in the immigration arena.

The 4th Circuit opted for a middle ground. It agreed with the government that the 1972 immigration case was the “starting point” for its analysis, but it found a role for the Supreme Court’s Establishment Clause doctrine as well. In the court’s view, the 1972 case “imposes a heavy burden on the” challengers: The order can survive as long as it is “facially legitimate” – that is, there was a valid reason for it – and issued in good faith. The government can meet the first test, the court reasoned, because the order indicates that it was intended to protect the United States from foreign terrorists. But it cannot meet the “good faith” requirement, the court concluded, because there is “ample evidence” that the order was not actually based on national-security concerns. Instead, the court suggested, the national-security concerns were simply a “pretext for what is really an anti-Muslim religious purpose.”

Because the challengers had shown bad faith, the court continued, the proper next step is to apply the “Lemon test” to determine whether the executive order violated the Constitution, because the Establishment Clause limits what the executive and legislative branches can do in the immigration arena. At the oral argument earlier this month, much of the debate focused on whether the judges should consider Trump’s statements, both as a candidate running for office and later as the president, about banning Muslims from the United States in evaluating the purpose of the order. The majority concluded that – at least in this case, which it characterized as presenting a “highly unique set of circumstances” – it could. Those statements, it emphasized, “provide direct, specific evidence of what motivated” both the executive order at issue in this case and the earlier one that preceded it: “President Trump’s desire to exclude Muslims from the United States.”

The court of appeals vacated the part of the district court’s order that applied specifically to the president, but it otherwise left the order, which applies throughout the United States, intact. And the court had strong words for the Trump administration, noting that it had “repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.”

Three judges dissented from today’s ruling: Judges Paul Niemeyer, Dennis Shedd and G. Steven Agee. Another challenge to the travel ban is pending in the U.S. Court of Appeals for the 9th Circuit, which heard oral argument in that case on May 15. The federal government has 90 days to appeal today’s ruling to the Supreme Court, although it may opt to file a request for review before then.

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SCOTUS Map: April and May 2017

On April 21, Justice Stephen Breyer took part in a conversation called “Judges as Diplomats in Advancing the Rule of Law,” organized by the Luxembourg Forum at American University. A brief recap comes from the American University School of Public Affairs News. Justice Sonia Sotomayor spoke at the April 25 reception for the Legal Services […]

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Who doesn’t want to take a quick break in the middle of work and go to Italy?

On April 21, Justice Stephen Breyer took part in a conversation called “Judges as Diplomats in Advancing the Rule of Law,” organized by the Luxembourg Forum at American University. A brief recap comes from the American University School of Public Affairs News.

Justice Sonia Sotomayor spoke at the April 25 reception for the Legal Services Corporation’s Forum on Increasing Access to Justice. The following day, Justice Elena Kagan also praised LSC’s work in her remarks at the American Bar Association’s 2017 ABA Grassroots Advocacy Award ceremony. “You are doing the Lord’s work,” ABA News quotes Kagan as saying. “This is so important—the Legal Services Corporation—so many people depend on it, and depend on there being adequate funding for it.”

April 27, the day after the last of the term’s oral arguments, saw a flurry of activity from the justices, with at least four different appearances around Washington. Chief Justice John Roberts attended a Georgetown Law reception where Jeffrey Minear, the chief justice’s counselor, was honored. Roberts drew laughs for opening his speech with a reminder to the audience to “please turn off your cell phones” – a reference to Breyer’s phone unexpectedly ringing in the courtroom during the penultimate day of arguments. Mark Walsh has a summary of the festivities.

Justice Ruth Bader Ginsburg was also at Georgetown that day, speaking at the Marver H. Bernstein Symposium. Ginsburg’s talk touched on a wide range of topics, including the civility (or incivility) of Supreme Court confirmation hearings, unconscious bias against women, the living Constitution, and the strategic use of dissents. “I do not take every opportunity to dissent,” Ginsburg said, according to the Georgetown Hoya. “I do try to save them for when it counts, when it really matters. I keep on my desk the unpublished opinions of Justice Brandeis. His view was, his voice would be all the more compelling if he only dissented when it really mattered.” Additional coverage comes from The Hill. Video of the event is available online.

Meanwhile, Justice Samuel Alito was 10 minutes away at the Capital Hilton, headlining an American Bar Association Section of International Law luncheon. Alito described how dissents often have the effect of sharpening a justice’s writing: “If you write an opinion and you know you have to answer to a dissent, it makes you more careful” than when authoring a unanimous opinion. ABA News reports that Alito got in a jab at media coverage of the justices: “There is an awful lot of silliness that is written about the court.”

Speaking of media coverage, Sotomayor, who once spoke positively of her experience with cameras in the courtroom, said at the opening of a Library of Congress exhibition (“Drawing Justice: The Art of Courtroom Illustration”) that she is now hesitant about the idea of bringing cameras to the Supreme Court. The Washington Post covered the opening.

With the eight-member Supreme Court now a thing of the past, Kagan – who is no longer the junior justice and quite happy about that, Ginsburg surmisedtook a walk down memory lane at the Seventh Circuit Bar Association Annual Meeting in Indianapolis on May 1. She stated that one result of working on a short-handed bench was that justices had to dig deeper and refine their reasoning, listening and persuasion skills in order to break 4-4 ties and reach consensus. According to The Indiana Lawyer, Kagan believes the Supreme Court did “pretty darn well” given the circumstances. She sees the court’s experience as applicable to politics in general:

I think the courts do model behavior. They teach people about reasoned decision-making and they teach people about collegiality. And when they’re working at their best, they also teach people about bridging differences and reaching agreement in places where you might not expect to find it.

Also on May 1, Ginsburg presided over a re-enactment of Goesaert v. Cleary at the Supreme Court. In that 1948 ruling, the Supreme Court held that a Michigan statute barring most women from being licensed as bartenders did not violate the 14th Amendment’s equal protection clause. Ginsburg noted after the argument that the opinion had affirmed “the prerogative of legislatures to draw a sharp line between the sexes,” and recalled that when she studied the case as a law student in the 1950s, neither the professor nor the casebook mentioned “the blatant gender-based discrimination infecting the Michigan law.” Andrew Hamm covered the event for this blog.

Sometimes a justice travels a long way to speak to an audience, and at other times the audience travels to the justice. On May 2, Justice Anthony Kennedy spoke to Sacramento business leaders and lawmakers who had come from Kennedy’s hometown in California to Washington as part of the Sacramento Metropolitan Chamber of Commerce’s “Capitol-to-Capitol” program. Attendees of the event, which was closed to the media, told Fox 40 that Kennedy’s speech touched on civility and the preservation of democracy, among other things.

Sotomayor spent some time overseas at the University of Macerata in Italy, participating in a May 3 conversation with students and a May 4 panel highlighting the experiences of female Supreme Court and constitutional court justices around the world.

Justice Clarence Thomas delivered the keynote speech at the Bar Association of Metropolitan St. Louis’ Law Day on May 5. According to the St. Louis Post-Dispatch, part of Thomas’ address focused on the irony that he sees in some young people and law students’ attitudes toward principles of limited government. “Some recoil or react as if something is being taken away. Yet in the very next breath they might express concern about the government’s overreaching under the Patriot Act, for example, or interference with their reproductive rights.” Thomas called this a “glib, simplistic” viewpoint: “They want the government to do what they want it to do, and refrain from doing what they don’t want it to do.”

Every spring, the New York City Bar Association hosts the Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law, with Ginsburg providing the introductory remarks for that year’s speaker. On May 8, Ginsburg introduced Patricia Bell-Scott, author of a book about Eleanor Roosevelt and the legal scholar, activist and Episcopal priest Pauli Murray. Ginsburg credited Murray’s law review article “Jane Crow and the Law” with giving Ginsburg a “road map” for the equal citizenship stature arguments she made in 1971’s Reed v. Reed, which resulted in the Supreme Court’s application of the equal protection clause to sex discrimination. A transcript and a video of the justice’s speech are available via the New York City Bar Association.

On May 11, retired Justice John Paul Stevens made an appearance at the Galt Ocean Mile Reading Center in Fort Lauderdale, Florida, to discuss his two books, “Five Chiefs: A Supreme Court Memoir” and “Six Amendments: How and Why We Should Change the Constitution.”

Religious organizations played host to a couple of the justices in mid-May. Alito delivered the commencement speech at the Pontifical Faculty of the Immaculate Conception at the Dominican House of Studies in Washington on May 12, where he also received the Saint Dominic Medal. Five days later, Alito spoke at the Saint Charles Borromeo Seminary’s graduation ceremony in Philadelphia, where he warned the audience that Americans’ “strong respect for religious liberty” has “started to change.” According to Newsworks.org, Alito read from his 2015 dissent in Obergefell v. Hodges, saying: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Breyer promoted his book, “The Court and the World,” at a May 12 Sutton Place Synagogue event organized by the New York Board of Rabbis and the Interfaith Center of New York. The next day, he discussed the Constitution and Brown v. Board of Education at the St. Philip’s Episcopal Church’s 10th Annual Thurgood Marshall Law Day. Coverage of the latter event comes from the Episcopal News Service, which describes Breyer “clutching a biography of Marshall stuffed with leaves of paper scrawled with handwritten notes.” Of Brown’s legacy, Breyer said: “Of course it helped America by producing integration, but it helped America in other ways, too, that are just as important.” YouTube user Andy Jean has uploaded a video of Breyer’s talk (which begins at the 1:18:13 mark).

On May 18, Alito participated in a Q&A session at the Capitol Hill Chapter of the Federal Bar Association’s 2017 Supreme Court Luncheon.

Looking ahead to the rest of May:

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Ninth Circuit hears oral argument on Trump travel ban

Ninth Circuit hears oral argument on Trump travel banA three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard oral argument yesterday in a challenge to the executive order signed by President Donald Trump on March 6. Colloquially known as the “travel ban,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, […]

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Ninth Circuit hears oral argument on Trump travel ban

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit heard oral argument yesterday in a challenge to the executive order signed by President Donald Trump on March 6. Colloquially known as the “travel ban,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States. Yesterday’s oral argument came just one week after the full U.S. Court of Appeals for the 4th Circuit heard oral argument in a similar challenge; in both cases, federal trial courts had blocked the government from implementing the order. Last week’s argument suggested that there was a majority on the 4th Circuit to uphold the Maryland judge’s order putting the ban on hold; yesterday’s argument before the 9th Circuit panel could lead to a comparable result, although perhaps on a different theory than that relied on by the Hawaii trial court and also with a narrower scope.

The case before the 9th Circuit yesterday was filed by the state of Hawaii and Ismail Elshikh, a U.S. citizen of Egyptian descent who serves as the head of a Hawaii mosque and is hoping to bring his mother-in-law, a Syrian national, to the United States. The challengers contend that the president’s order violates both the Constitution (by, among other things, favoring one religion over another) and federal laws governing immigration, which allow the president to suspend the entry of non-citizens into the country when he finds that their entry would be detrimental to the interests of the United States.

Arguing on behalf of the United States, as he did in the 4th Circuit, Acting Solicitor General Jeffrey Wall told the court that both the Constitution and federal law give the president broad authority to prevent non-citizens from entering the country when he deems it necessary to protect the United States. Wall’s opponent, former Acting Solicitor General Neal Katyal, countered that a ruling for the Trump administration would allow the president to take a “magic eraser to the entire” body of federal laws. By contrast, Katyal contended, a ruling for the challengers would “preserve a status quo that existed for decades” while at the same time leaving the president’s powers intact.

The three judges on the panel – Senior Judge Michael Hawkins, Judge Ronald Gould and Judge Richard Paez – devoted a significant portion of yesterday’s oral argument to an issue that had also troubled the 4th Circuit last week: What role, if any, should the president’s campaign statements about banning the entry of Muslims into the United States play in the court’s evaluation of the March 6 executive order?

Gould asked Wall how the court should determine whether the executive order is a “Muslim ban” disguised as a policy intended to promote national security. Wall responded that the question was the “nub” of the case. In his dissent from a 1972 case challenging the denial of a visa to a Belgian journalist who described himself as a Marxist, Wall noted, Justice Thurgood Marshall had suggested that courts should look, even if only briefly, at the rationale underlying the policy at issue in that case, but the majority of the Supreme Court declined to do so. It was enough, the court ruled, that the policy had a legitimate purpose on its face. And in any event, Wall emphasized, the president subsequently clarified that his statements referred to Muslim terrorist groups and the countries that shelter them – not to all Muslims generally.

Paez later asked Katyal whether the court should account for the fact that Trump made his statements during a highly contentious campaign. Katyal conceded that the case might not be before the court of appeals if it were based only on campaign statements. But, he suggested, Trump had effectively rekindled those statements as president. And Katyal reassured the judges that they didn’t need “to be Sigmund Freud” to affirm the lower court. Instead, he explained, the important question is simply what an objective observer would think of the president’s statements, and in this case any objective observer would believe that the order was intended to discriminate against Muslims.

Perhaps seeking to avoid the question of what role the president’s statements should play in their assessment, the judges yesterday also spent some time discussing whether the order might also violate federal immigration law – specifically, if it was not based on an adequate finding that the entry of non-citizens would be detrimental to the country’s interests. Gould raised this question with both Wall and Katyal, asking Katyal whether the 9th Circuit could uphold the district court’s injunction based on the immigration statute if it concluded that the challengers’ claim that the order disfavored Islam did not support the injunction.

Katyal told the judges that the entry of citizens from the six countries named in the order could not be detrimental to the interests of the United States because Congress had already determined a few years ago that a ban on entry was not warranted, opting instead to simply require residents of these countries to obtain a visa to come to the United States. But Wall emphasized that the order did not suggest that everyone in the six countries was dangerous; instead, it simply imposed a temporary hold on visas for residents of those countries to allow the federal government to reassess its vetting procedures.

The judges also at least hinted that they might narrow the scope of the district court’s order. Hawkins seemed somewhat troubled by the prospect that the current injunction would bar the government from studying the issues that are discussed in the order. Is there any justification for that part of the order, he asked Katyal? Wall tried to capitalize on this concern in his closing summation, telling the three judges that, even if the federal government is wrong about the challengers’ right to sue and the merits of their claims, the relief to which they are entitled “should be so much more limited” – providing a visa to Elshikh’s mother in law, for example, and to other Muslim students who might come to Hawaii, but not extending nationwide. We are likely to know soon whether the judges who heard his appeal agree with him.

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President’s statements at heart of challenge to travel ban

President’s statements at heart of challenge to travel banThe U.S. Court of Appeals for the 4th Circuit heard oral argument today in a challenge to the executive order signed by President Donald Trump on March 6. Citing the need to “protect the Nation from terrorist activities,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, […]

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President’s statements at heart of challenge to travel ban

The U.S. Court of Appeals for the 4th Circuit heard oral argument today in a challenge to the executive order signed by President Donald Trump on March 6. Citing the need to “protect the Nation from terrorist activities,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States. The March 6 order replaced a January 27 order that stalled in the federal courts, but a federal trial judge in Maryland put the new order on hold as well, leading to today’s appeal by the federal government. Lawyers representing the federal government and the challengers faced tough questions from virtually all of the 13 judges who participated in today’s hearing. When Chief Judge Roger Gregory finally gaveled the hearing to a close after more than two hours of argument, the challengers had reason to be optimistic, although the appeals court is likely to be sharply divided.

The plaintiffs in the case allege that even though the revised executive order does not say so specifically, it was still intended to discriminate against Muslims – as evidenced by Trump’s statements during his campaign and after his election. But a central issue in today’s hearing was whether the court of appeals should consider those statements at all. And the two sides were, as Judge Robert King told Omar Jadwat, who argued on behalf of the challengers, “like ships in the night.”

Acting Solicitor General Jeffrey Wall, representing the federal government, urged the court not to look beyond the language of the executive order itself at other possible evidence of the president’s intent. It is enough, he suggested, that the Trump administration had a legitimate reason – protecting the country from terrorism – for the order.

But some judges were skeptical that courts could not consider the president’s statements at all. Judge James Wynn suggested that courts should not defer to the executive branch’s explanation if the administration had ulterior motives. And in determining whether the president acted in bad faith in issuing the order, he asked, shouldn’t courts be able to look at the president’s statements? “There was a wink and a nod,” Wynn noted, when the president signed the second executive order.

King told Wall that when, as in this case, the plaintiffs argue that a government policy violates the Constitution’s prohibition against favoring one religion over another, courts should look at the policy’s purpose. If you look at the purpose of the policy, he continued, then you have to look at what’s going on behind it. “And that,” King concluded, “takes you back to what has been said.”

Judge Henry Floyd reminded Wall that, after the second executive order was signed, White House press secretary Sean Spicer told members of the media that the principles behind the order remain the same as in the first order, and that Trump had “continued to deliver on campaign promises.” Is there anything other than willful blindness, Floyd asked Wall, that would prevent us from looking behind those statements?

Other judges, however, wondered how courts could draw the line if they were to consider statements by the president. Would statements suggesting a discriminatory intent forever “taint” the order? Judge Dennis Shedd gave Jadwat a hypothetical: If the president clearly dislikes a religious group, but it later becomes clear that the group is involved in a situation that could harm the United States, does the president’s animus bar him from ever taking action against the group? If the attorney general and the director of the Department of Homeland Security were to recommend a temporary pause in immigration from the six countries to diminish the risk of terrorism, Shedd continued, wouldn’t that override any “taint” that might exist?

Judge Paul Niemeyer then chimed in. If courts can look at the president’s statements, can they also go back to look at his speeches while in college, or his speeches to businessmen 20 years ago? Niemeyer also pressed Jadwat to concede that if a different president, who had not made similar statements about a “Muslim ban,” issued the same executive order, it would be constitutional. Jadwat, Niemeyer suggested, was essentially asking the court of appeals to overlook a Supreme Court decision holding that an executive order like this one is legitimate by arguing that the order can become illegitimate based solely on the president’s campaign statements. Jadwat struggled to answer Niemeyer, who was relentless.

But Judge Barbara Keenan tried to come to Jadwat’s aid. If we can’t consider what the president said during the campaign, she asked him, do you lose? Jadwat responded that the challengers would still win, because the record in the case also contains other facts that are not statements by the president – for example, that intelligence officials indicated that the executive order would not actually reduce terrorism in the United States. Moreover, Jadwat emphasized, after Trump took the oath of office, Trump’s statement calling for a complete ban on the entry of Muslims into the country remained on the campaign website. That led King to ask Jadwat whether the statement could still be found on the website. Jadwat responded that it had been there the last time he checked; however, the statement was apparently removed today.

Shedd and Niemeyer also suggested that the executive branch should be entitled to some level of deference, particularly when it comes to immigration. Courts give deference to administrative agencies and to Congress, Shedd observed; shouldn’t they give it to executive branch officials as well? And Niemeyer complained to Jadwat that if the challengers prevail, “I don’t know where it stops.” If the executive branch increases its background checks for visa applicants coming from countries where terrorism is a problem, Niemeyer lamented, allegations of discrimination will inevitably ensue, leading to further debate and more second-guessing of the executive.

Wall finished his time at the lectern with an fervent plea to the judges to recognize what, in the government’s view, is at stake in this case. It really “all boils down” to the president’s statements, he stressed. And, he added, although the executive order at the heart of this case has been the subject of “heated and passionate” debate, the precedent that the court’s decision will set on the president’s power to keep the United States safe “will long transcend” this particular order.

Next week, the U.S. Court of Appeals for the 9th Circuit will hear argument in the government’s challenge to an order by a Hawaii judge blocking the implementation of the executive order. It is hard to predict when the two courts of appeals will issue their rulings, but the cases could move quickly to the Supreme Court after that.

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Roberts, Georgetown Law honor counselor to the chief justice

Roberts, Georgetown Law honor counselor to the chief justiceWith the final arguments of the Supreme Court term completed on Wednesday, Georgetown Law on Thursday held its traditional reception to thank participants in its moot court program and to recognize a special guest. The honoree this year was Jeffrey Minear, the counselor to Chief Justice John Roberts. And the reception brought together Roberts, Justice […]

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Roberts, Georgetown Law honor counselor to the chief justice

With the final arguments of the Supreme Court term completed on Wednesday, Georgetown Law on Thursday held its traditional reception to thank participants in its moot court program and to recognize a special guest.

The honoree this year was Jeffrey Minear, the counselor to Chief Justice John Roberts. And the reception brought together Roberts, Justice Elena Kagan, members of the U.S. solicitor general’s office, a couple of federal appeals court judges, and numerous specialists of the Supreme Court bar, not to mention invited law students and their more casually dressed classmates who slipped in to grab an hors d’oeuvre or a selfie with a justice.

Remarks at the event shed light on the wide range of non-judicial activities at the court, especially the many extra duties of the chief justice.

Deputy Solicitor General Edwin Kneedler noted some of these roles, including overseeing the Judicial Conference of the United States, serving on the board of regents and as chancellor of the Smithsonian Institution, and welcoming foreign judicial delegations.

Minear, who has been counselor to the chief justice since 2006, has been vital to helping Roberts fulfill those duties, Kneedler said, all the time displaying “great discretion and modesty.”

“He is, in short, a terrific ambassador of the court” to the bar and the public, Kneedler said.

Many people probably know little or nothing about Minear or his job, which is described in an act of Congress as “performing such duties as may be assigned to him by the chief justice,” Kneedler said.

When Roberts took the lectern, he added even more about the variety of tasks filled by his counselor. But that was only after the chief justice alluded to this week’s attention-getting development in the courtroom—the interruption of oral argument on Tuesday by the ringing of Justice Stephen Breyer’s digital device.

“First of all, I’d like to remind everyone to please turn off your cellphones,” Roberts said, drawing hearty laughs.

He then added to Kneedler’s description of Minear’s successful 21-year career in the solicitor general’s office, where Minear specialized in environmental, Indian, and original jurisdiction cases involving the states as parties, before taking the counselor’s job.

Roberts noted that he and Minear were once on opposite sides of an original jurisdiction case between Alaska and the United States that brought them together on a weeklong fact-finding mission on a fisheries boat in Glacier Bay, along with the case’s special master.

“You really do get to know someone well when you are in close quarters on a fisheries vessel for a week,” the chief justice said. Minear won the case, though Roberts noted that he was no longer involved as a lawyer representing Alaska by the time the case was argued and decided in the Supreme Court.

Roberts said Minear is charge of the court’s budget, has revitalized the Supreme Court Fellows program, and serves as a liaison to other branches of the government. The counselor had to lead the court through many planning issues after the death of Justice Antonin Scalia, as well as, more recently, smoothing new Justice Neil Gorsuch’s arrival at the court.

Helping the chief justice with his Smithsonian responsibilities alone, Roberts said, is practically a full-time job.

And, “a week doesn’t go by when we don’t have a foreign delegation visiting the court, whether it is judicial or otherwise,” Roberts said. “The court really is a mecca for judiciaries around the world.”

(Just last week, several members of the European Court of Justice were in the audience for an oral argument.)

The chief justice concluded with another quip, saying Minear carries out all his duties while maintaining a focus on his main responsibility, “which is making sure that I get the credit.”

Minear is sometimes seen in the courtroom, taking in an oral argument. And TV viewers may have unknowingly caught a glimpse of him, because he typically accompanies the justices at State of the Union addresses and inaugurations (as do the marshal and clerk of the court).

But Minear himself seems fine with staying outside the spotlight. In brief remarks at the reception, he heaped praise on Georgetown’s Supreme Court Institute for helping improve arguments in the court itself. (The institute allows one side or the other in each of the granted cases to conduct moot court arguments before an experienced panel of lawyers.)

Minear lauded the specialty Supreme Court bar, and he drew attention to Roberts as someone whose kindness, decency and sense of humor Minear gets to experience closer than most.

The speakers had described Minear’s love of annual kayaking and camping trips to Alaska with his wife, Robin. (The institute presented him with a stuffed bear and a picture of Minear and Roberts, with a grizzly bear Photoshopped in the middle.)

Minear said that even though he and his wife often set ambitious distance goals for their kayaking trips, “one thing I have learned on these trips is it is always worthwhile to look back at where you came from.”

“That’s what I would encourage all of you to do,” he said. “Look back at how far we have all come along together in the past few decades. Some of you, just the past few years. It’s a great journey.”

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A “view” from the courtroom: Call waiting

A “view” from the courtroom: Call waitingIt’s the penultimate day of arguments in this modest term, and after issuing its opinion in Lewis v. Clarke (about tribal sovereign immunity) and conducting bar admissions, the court is just a few minutes into the oral argument in Bristol-Myers Squibb Co. v. Superior Court of California (about personal jurisdiction). And then … a cellphone […]

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A “view” from the courtroom: Call waiting

It’s the penultimate day of arguments in this modest term, and after issuing its opinion in Lewis v. Clarke (about tribal sovereign immunity) and conducting bar admissions, the court is just a few minutes into the oral argument in Bristol-Myers Squibb Co. v. Superior Court of California (about personal jurisdiction).

And then … a cellphone ringtone goes off. The Supreme Court police department has been especially vigilant in keeping visitors from bringing such devices into the courtroom since a couple of high-profile protests involving hidden pen cameras in recent years.

But cellphones do occasionally end up in the ornate courtroom and announce themselves. Today, the culprit is a 23-year veteran of the bench. Justice Stephen Breyer looks a bit sheepish as he maneuvers to silence his phone’s lively chime.

 Justices Samuel Alito and Elena Kagan chuckle. Breyer looks to Chief Justice John Roberts with an apologetic expression before sharing a laugh with Justice Clarence Thomas. Some of my colleagues think they see Breyer handing the phone to one of the court aides who sit behind the justices.

Neal Katyal, the former acting U.S. solicitor general who is arguing on behalf of Bristol-Myers Squibb at that moment, appears unflustered by the interruption.

(Later in the argument, there is another short cellphone disturbance, a “pinging” sound. It’s not clear who is responsible for that one.)

I would like to be able to say that after the argument, reporters retired to the press room and began discussing the finer points of personal jurisdiction. But all we can really talk about for several minutes is Justice Breyer’s cellphone.

First, who would be calling him at 10:13 a.m. on an argument day?

Supreme Court Public Information Officer Kathleen Arberg says she will check with the justice’s chambers to confirm our eyewitness recollections. But Breyer is still on the bench for the second case, she reminds us. Well, couldn’t she just call him there and ask? one smart-aleck reporter queries. (OK, it was this smart aleck.)

A little later, Arberg confirms that it was indeed Breyer whose cellphone went off. It was “an oversight” that he brought the phone into the courtroom, and it was not something he normally does, she says. But it did liven up the first of two civil procedure arguments on a rainy day.

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

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Event announcement

Event announcementOn April 27 at 9 a.m., the Constitutional Accountability Center will host its fourth annual “Home Stretch at the Supreme Court” event. Speakers will include Deborah Archer, Brianne Gorod, Erin Murphy and Don Verrilli; Amy Howe will serve as moderator and Elizabeth Wydra will give opening remarks. More information about this event, which will be […]

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Event announcement

On April 27 at 9 a.m., the Constitutional Accountability Center will host its fourth annual “Home Stretch at the Supreme Court” event. Speakers will include Deborah Archer, Brianne Gorod, Erin Murphy and Don Verrilli; Amy Howe will serve as moderator and Elizabeth Wydra will give opening remarks. More information about this event, which will be held at the National Press Club in Washington, is available at this link.

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Now accepting internship applications (Deadline today)

Now accepting internship applications (Deadline today)SCOTUSblog is still accepting applications from current law students interested in interning with us. The principal focus of the internship (which is a paid one) will be assisting with the “Petition of the day” and “Petitions to watch” features on the blog and maintaining the case pages. This will require roughly 10 to 20 hours […]

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Now accepting internship applications (Deadline today)

SCOTUSblog is still accepting applications from current law students interested in interning with us. The principal focus of the internship (which is a paid one) will be assisting with the “Petition of the day” and “Petitions to watch” features on the blog and maintaining the case pages. This will require roughly 10 to 20 hours of work a week on a generally flexible work schedule, which can be accomplished remotely. The position will begin in early to mid-May, and the expected commitment would be through May 2018.

To qualify for the position, you must:

* Have a strong academic record

* Be currently enrolled in a J.D. or LL.M program (undergraduates are not eligible)

* Have excellent organizational skills and attention to detail

* Be able to work independently on deadline

* Have a strong interest in learning about the U.S. Supreme Court and its workings

* Have some experience working with (or at least interest in) blog or website technology

To apply, please send us the following materials:

* Cover letter

* Resume

* Contact information for two references

* A writing sample of no more than five double-spaced pages that has not been edited by anyone other than you

* An official or unofficial law school transcript

Application materials should be sent to Andrew Hamm (ahamm@scotusblog.com) and Molly Runkle (mrunkle@scotusblog.com). Materials must be received by April 28 for consideration.

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Reminder: Now accepting internship applications

Reminder: Now accepting internship applicationsSCOTUSblog is now accepting applications from current law students interested in interning with us. Details about the position’s qualifications and responsibilities, as well as how to apply, are below the jump. The principal focus of the internship (which is a paid one) will be assisting with the “Petition of the day” and “Petitions to watch” […]

The post Reminder: Now accepting internship applications appeared first on SCOTUSblog.

Reminder: Now accepting internship applications

SCOTUSblog is now accepting applications from current law students interested in interning with us. Details about the position’s qualifications and responsibilities, as well as how to apply, are below the jump.

The principal focus of the internship (which is a paid one) will be assisting with the “Petition of the day” and “Petitions to watch” features on the blog and maintaining the case pages. This will require roughly 10 to 20 hours of work a week on a generally flexible work schedule, which can be accomplished remotely. The position will begin in early May, and the expected commitment would be through May 2018.

To qualify for the position, you must:

* Have a strong academic record

* Be currently enrolled in a J.D. or LL.M program (undergraduates are not eligible)

* Have a strong interest in learning about the U.S. Supreme Court and its workings

* Have some experience working with (or at least interest in) blog or website technology

* Have demonstrated excellent writing and editing skills

* Have excellent organizational skills and attention to detail

To apply, please send us the following materials:

* Cover letter

* Resume

* Contact information for two references

* A writing sample of no more than five double-spaced pages that has not been edited by anyone other than you

* An official or unofficial law school transcript

Application materials should be sent to Andrew Hamm (ahamm@scotusblog.com) and Molly Runkle (mrunkle@scotusblog.com). Materials must be received by April 18 for consideration.

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SCOTUS Map: March and April 2017

Justice Sonia Sotomayor mingled with the crowd and dispensed advice to Stanford University students on March 10. “Figure out first how to be a generally informed citizen before specializing in anything else,” Sotomayor told them. “It might lead you to find an interest you can’t imagine. It will make you good company for others. If […]

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Justice Sonia Sotomayor mingled with the crowd and dispensed advice to Stanford University students on March 10. “Figure out first how to be a generally informed citizen before specializing in anything else,” Sotomayor told them. “It might lead you to find an interest you can’t imagine. It will make you good company for others. If you tell interesting stories about interesting things, people will gravitate to you.” At the end of the talk, Sotomayor received a T-shirt bearing the words “Fear The Nerds” on the front and “#NerdUp” on the back. “I grew up being a nerd. Take pride in being nerds,” she remarked. Coverage of the event comes from Mercury News and Stanford University News. A brief video clip is available on abc7news’ website. C-SPAN will air the full program at 8 p.m. EDT today.

While Sotomayor was in Palo Alto, Chief Justice John Roberts was in New York to participate in a panel hosted by the U.S. Court of Appeals for the 2nd Circuit. The subject of the panel was Judge Henry Friendly, for whom Roberts clerked after graduating from law school. Roberts shared the stage with 2nd Circuit Judge Jon Newman and six fellow Friendly clerks, including Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. Roberts and Garland remembered Friendly as an “intellectual giant” and a “big-picture judge” who always walked his clerks through his reasoning process, even in the most mundane of cases. Garland — who worked for Friendly the year before Roberts did — joked at one point that he didn’t know how he had obtained his own clerkship, but he did know how Roberts got his, as Garland had called Harvard Law School on Friendly’s behalf to find the best student.

Roberts presided over a March 15 mock trial based on events in Mark Twain’s novel “The Adventures of Tom Sawyer.” Adam Liptak of the New York Times covered the proceedings, which were organized by the Washington University School of Law in St. Louis but took place at the Four Seasons Hotel in Washington.

On the same night, Justice Samuel Alito served as the featured speaker for a St. Paul Inside the Walls Advocati Christi event in New Jersey. According to the Associated Press, Alito spoke about both the history of discrimination that Catholics encountered in this country and his own personal experience of growing up Catholic. He recalled watching John F. Kennedy become the first Catholic president in 1960, when Alito was 10 years old: “I felt it had lifted me up from the status of second-class American.” Alito warned the audience, however, that today “a wind is picking up that is hostile to those with traditional moral beliefs.” The following week, Alito traveled to Pennsylvania to deliver a lecture about the Constitution at the Heritage Center of the Union League of Philadelphia.

Sotomayor spoke on the subject of civic engagement at the Aspen Institute on March 24. Asked about what people can do to “reignite civic spirit in America,” Sotomayor responded: “We are never going to reach equality in America — as Latinos, as blacks, as anything — until we achieve equality in education.” Sotomayor stressed the importance of teaching children to be active participants in their communities and promoted iCivics, an organization that retired Justice Sandra Day O’Connor founded (and for which Sotomayor serves as a board member) to provide civic education through games and other interactive tools. Video of the event is posted on YouTube.

On March 30, Justice Clarence Thomas addressed students at the 70th Annual Horatio Alger Awards and National Scholars Conference in Washington. A brief recap is available at the organization’s Facebook page.

On April 1, Sotomayor returned to Princeton University, where she received her undergraduate degree, for the “¡Adelante Tigres! Celebrating Latino Alumni at Princeton University” conference. The justice was candid about the insecurities she faced, both when she was a new student at Princeton and when she was nominated to the Supreme Court. Of the former, Sotomayor stated, “I had no idea about the prestige of Princeton or how I would be perceived here. I had no idea of the world I’d thrust myself into — I was a fish out of water.” Of the battle that surrounded her 2009 nomination, she recalled, “There were reports that I wasn’t smart enough, and there were reports that I was abrasive and not nice. Lots of negative stuff was said about me. And it was incredibly, incredibly painful. It hurt … And I actually, seriously thought about pulling out of the process.” Sotomayor credited her friends and her community with helping her press forward in both situations. Coverage comes from The Times of Trenton, CentralJersey.com, Princeton Alumni Weekly and The Daily Princetonian.

A couple of days later, Sotomayor arrived in upstate New York for a whirlwind tour, visiting three Albany-area schools and attending a portrait unveiling at the New York Court of Appeals. On April 3, Albany Law School honored Sotomayor with the Kate Stoneman Award, which is presented to those in the legal profession who have demonstrated a commitment to seeking change and equal opportunities for women. According to The Daily Gazette, Sotomayor described her efforts at making her writing accessible to a wide audience: “Most people don’t read our decisions. But I want to make sure that anyone who picks up one of mine, if you take the legal notes out, you don’t need more than a fifth-grade education to follow what I’m saying.”

Sotomayor did double duty on April 4, appearing at Russell Sage College in the morning and the University of Albany in the evening. The Troy Record covered the Russell Sage College appearance, where the justice emphasized the need for after-school programs: “When I am asked what we can do to change the lives of so many kids in our neighborhoods, I say, keep them busy after school.” WNYT has additional coverage and short videos from the event. The Legislative Gazette has a rundown of the University of Albany talk, and the university posted a brief video clip on its Twitter account.

New Haven was next on Sotomayor’s schedule. On April 6, she discussed her experiences with public interest work at the 20th Anniversary Liman Colloquium at Yale Law School. The following day, she attended another portrait unveiling – this time, her own. Yale Law School has a summary of the festivities.

All of the justices gathered in Washington on April 10 for the swearing-in of their newest colleague, Justice Neil Gorsuch. Roberts administered the constitutional oath of office to Gorsuch in a private ceremony in the justices’ conference room, which was followed by a second ceremony in the White House Rose Garden, with Justice Anthony Kennedy – for whom Gorsuch once clerked – presiding over the judicial oath. Coverage comes from SCOTUSblog, the New York Times, the Washington Post, USA Today and CBS News.

Later that afternoon, Allegheny College honored Justice Ruth Bader Ginsburg and the late Justice Antonin Scalia with its Prize for Civility in Public Life. (Scalia’s family accepted the award on his behalf at the ceremony.) “At my workplace, collegiality really matters,” Ginsburg told the audience. “We could not do the important work the Constitution assigns to the Court unless we genuinely respect each other.” SCOTUSblog and the Meadville Tribune posted recaps of her speech. Video of Ginsburg discussing her famous friendship with Scalia and her hope that members of Congress will restore “harmonious work ways” is available online.

At the Rensselaer Polytechnic Institute on April 11, Roberts offered up a sanguine vision of an apolitical court, stating that “[t]he new justice is not a Republican. He’s not a Democrat. He’s a member of the Supreme Court.” However, Roberts acknowledged, “It’s hard for people to understand that when they see the process that leads up to it … That’s very unfortunate, because we in the judiciary do not do our business in a partisan, ideological manner.” Roberts noted that since Scalia’s death, “the Supreme Court has been quietly going about its business of deciding the cases before it, according to the Constitution, in a completely nonpartisan way.” The Albany Times Union and the Washington Post covered Roberts’ talk. The school posted full video on its YouTube account.

Also on April 11, Alito adjudicated the inaugural Judge Leonard I. Garth competition, which presented a hypothetical First Amendment case before competing teams from Rutgers Law School’s Newark and Camden campuses. In his first year out of law school, Alito clerked for the moot court competition’s namesake.

On April 13, Justice Stephen Breyer gave the keynote address at the 43rd Annual Wolfgang Friedmann Conference at Columbia Law School. Breyer talked about his latest book, “The Court and the World.”

Next Thursday, Alito will be in Lancaster, Pennsylvania, for the 2017 Third Circuit Judicial Conference, where he will present the American Inns of Court Professionalism Award and participate in a fireside chat.

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