Trump administration asks Supreme Court to intervene in travel-ban dispute

Trump administration asks Supreme Court to intervene in travel-ban disputeThe battle over the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries came to the Supreme Court on Monday. In a filing late in the day, the Trump administration asked the justices to allow the full set of restrictions – often known as the “travel ban” […]

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Trump administration asks Supreme Court to intervene in travel-ban dispute

The battle over the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries came to the Supreme Court on Monday. In a filing late in the day, the Trump administration asked the justices to allow the full set of restrictions – often known as the “travel ban” – to go into effect while the government appeals a ruling by a federal district judge in Hawaii blocking the ban.

It seemed all but inevitable that litigation over the travel ban would return to the Supreme Court after the justices dismissed the challenges to an earlier iteration of the ban. That earlier version, issued on March 6, halted the issuance of new visas to nationals from six predominantly Muslim countries (Syria, Libya, Yemen, Sudan, Somalia and Iran) and temporarily suspended the admission of refugees into the United States. The Supreme Court had been scheduled to hear oral arguments in the challenges on October 10, but the court removed the two cases from its calendar (and eventually dismissed them) in the wake of a new order from the president, issued on September 24.

The September 24 order restricted the entry into the United States of nationals from eight countries – Iran, Libya, Yemen, Somalia and Syria (all of which were covered by the March 6 order), along with North Korea, Venezuela and Chad (which were not covered by the order). The challengers returned to court, where U.S. District Judge Derrick Watson put the new order on hold. The federal government appealed that ruling to the U.S. Court of Appeals for the 9th Circuit, which allowed the September 24 order to go into effect while the government appeals, with one exception: The government cannot enforce the order against nationals of the affected countries who can claim to have a genuine relationship with a person or institution in the United States.

On Monday the federal government went to the Supreme Court, asking it to allow the full order to go into effect while the challenge is being litigated. The government emphasized that the president’s September 24 proclamation is “the culmination of an extensive, worldwide review process conducted by multiple government agencies to determine what information is necessary from each foreign country in order to admit nationals of that country to the United States while ensuring that travelers do not pose a security or public safety threat.” Moreover, the government added, the September 24 proclamation “differs from the President’s prior executive orders in both substance and process” – including covering “different countries than the prior orders: it removes one majority-Muslim country; adds other countries, some of which are not majority-Muslim; and excludes various non-immigrant travelers from all but one of the majority-Muslim countries. These differences,” the government concludes, “confirm that the Proclamation is based on national-security and foreign-affairs objectives, not religious animus.”

The justices could act on the government’s request immediately, or they could direct the challengers to respond to the request. They are also likely to field another request from the government in the travel-ban litigation: Monday’s filing indicated that the government intends to ask the court to intervene in the parallel challenge, currently pending in the U.S. Court of Appeals for the 4th Circuit, to block a ruling by a Maryland judge that bars the government from enforcing part of the September 24 order.

This post was originally published at Howe on the Court.

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SCOTUS Map: October and November 2017

SCOTUS Map: October and November 2017On October 11, Fordham Law School honored Justice Anthony Kennedy with the 2017 Fordham-Stein Prize, which is given annually to “an individual whose work embodies the highest standards of the legal profession.” According to Fordham News, the justice took the opportunity to say a few words about the promises and perils of the internet: The […]

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SCOTUS Map: October and November 2017

Justice Breyer embarked on a NAFTA tour this past month.

On October 11, Fordham Law School honored Justice Anthony Kennedy with the 2017 Fordham-Stein Prize, which is given annually to “an individual whose work embodies the highest standards of the legal profession.” According to Fordham News, the justice took the opportunity to say a few words about the promises and perils of the internet:

The cyber age is changing not only our technical world but how we think about who we are. And we’re not sure where this revolution is going. We must be careful not to allow this revolution to become what is known as the bypass age. We can’t allow the Internet to bypass the concept of who we are, what our heritage is, and what our destiny is. And that destiny and that heritage are to preserve and transmit freedom to the next generation.

On October 16, Justice Sonia Sotomayor sat for a Q&A session with Queens College students in Flushing, New York, where she lamented the lack of civic engagement today. “For me, I don’t think schools — whether they’re middle schools, high schools, colleges, and sometimes even law schools — are spending enough time inspiring their students … to take charge of their life and be aware of what civics is about.” The Queens Chronicle covered the talk.

Later that day, Sotomayor appeared at Hofstra University, where she explained the difference between stupidity and ignorance. “Stupid is the lack of capacity to understand, ignorance is the lack of exposure to know. Most of us are ignorant about things we don’t know. But lots of us are ashamed of admitting ignorance because we confuse it with stupidity.” The Hofstra Chronicle covered the discussion, and the school has released video online.

The following day, Sotomayor spoke to female high school students in a conversation hosted by Seneca Women and iCivics.

While Sotomayor was traveling around New York, Justice Elena Kagan regaled students at the Chicago-Kent College of Law with stories about daily life at the Supreme Court, including the upsides and downsides of relinquishing the junior justice position to Justice Neil Gorsuch. On one hand, Kagan mused, she no longer has to take notes at the justices’ meetings, open to the door to the conference room, and serve on the cafeteria committee. On the other hand, she said, the junior justice always speaks last when the justices go around the table discussing cases at conference, and being the ninth and last person is, in her opinion, better than being the eighth. This blog and the Chicago Tribune covered Kagan’s remarks. Full video of the event is available on YouTube.

On October 17, Chief Justice John Roberts and Justice Stephen Breyer spoke at the 2017 First Circuit Judicial Conference in Rockport, Maine. A circuit executive for the U.S. Court of Appeals for the 1st Circuit told the Knox Village Soup that the chief justice prefers not to include the press at these conferences, before later stating that longstanding 1st Circuit policy does not allow media to be present. Pierce Atwood’s Maine Appeals blog, however, does have a brief summary of the justices’ comments at the conference. According to the blog, both Roberts and Breyer expressed a desire to keep cameras out of the Supreme Court.

Back in Washington, Justice Samuel Alito spoke to students in the University of California Washington Program on October 20, while Kagan hosted the 2017 American Inns of Court Celebration of Excellence on October 21.

Gorsuch spoke about civility and campus free speech at the American Inns of Court National Conversation on Civility on October 21. “I’m a great believer in the First Amendment. It worries me when young people today at universities are not able to express themselves. When civility goes so far as to suppress disagreement, you’ve gone too far,” Gorsuch told the audience. Coverage comes from the National Law Journal (subscription required), the Associated Press and the ABA Journal.

Hofstra hosted its second justice in a month when Breyer delivered the keynote speech at the Hofstra Law Review’s symposium on the Federal Sentencing Guidelines at 30 — the video for which is posted online.

Roberts participated in a discussion on the workings of the Supreme Court at the Library of Congress on October 24.

Breyer was busy at the end of October, logging appearances at three events in Canada, a law school reunion and a conference over the span of three days. He spent October 25 in Quebec, where he spoke about “National Laws and New Global Realities” at the Conseil des relations internationals de Montreal (CORIM), and then at the Lord Reading Law Society. Francophones (like Breyer) can read a summary of the former event here. On October 26, Breyer participated in a Supreme Court of Canada symposium in Ottawa (a webcast for which is available online), before traveling south to Cambridge, Massachusetts, for Harvard Law School’s “HLS in the World” bicentennial summit. The following day, he made his way to Washington to speak at the 2017 Mass Tort Global Settlement Architecture Conference (recap available via Perrin Conferences’ LinkedIn).

Of all these events, the Harvard Law School summit was by far the most popular and heavily covered in the press — in no small part because Breyer shared the spotlight with not one, two or three, but five past and current Supreme Court colleagues. Breyer, Roberts, Kennedy, Kagan, Gorsuch and retired Justice David Souter all reminisced about their years at Harvard Law. Crowd-pleasing tales included one about Souter sustaining fencing injuries in a mock duel as a 2L, and Kennedy’s account of being called out by a law school dean for studying the revenue code at a Red Sox game. Having multiple justices on the stage provided opportunities for some inter-generational flattery — asked to identify favorite professors at HLS, Kagan said that hers was Breyer (who had taught her antitrust class), while Gorsuch glowingly described the time he spent clerking for Kennedy. Kennedy responded: “You didn’t always do what I told you to do as my clerk. You better start doing it now.” Coverage of the festivities comes from The Washington Post, CNN, the Boston Globe, the Harvard Crimson and the Harvard Gazette. Video of the event can be viewed on YouTube.

On October 27, Justice Ruth Bader Ginsburg spoke at the Equal Justice Works 2017 Conference and Career Fair. Andrew Hamm covered the appearance for this blog. Video is available via C-SPAN.

The justices have stayed busy into November. On November 2, Sotomayor spoke at a National Association of Women Judges (District 4) ceremony honoring District of Columbia Court of Appeals Chief Judge Anna Blackburne-Rigsby with the Edna G. Parker Award.

On the same day, Alito participated in a Georgetown Law Journal panel on customary international law (a summary is available at Georgetown Law News), while Breyer made an appearance at the British Embassy Washington for an event marking the 100th anniversary of the Balfour Declaration.

That weekend, Breyer was a featured guest at two book festivals, opening the Marcus Jewish Community Center of Atlanta 2017 Book Festival on November 4 and speaking about his latest book, “The Court and the World,” at the 37th Annual Berrin Family Jewish Book Festival in Miami on November 5.

On November 8, Sotomayor presided over a Supreme Court Historical Society re-enactment of Clay v. United States, with Justice Clarence Thomas watching from the audience. The National Law Journal (subscription required) covered the event.

Ginsburg delivered remarks to the College of Labor and Employment Lawyers on November 11 in Washington.

Breyer visited the Suprema Corte de Justicia de la Nación in Mexico on November 14 to speak about his book “Making Our Democracy Work,” thus completing his NAFTA tour.

That same night, Roberts presided over the final round of the 2017 Ames Moot Court Competition at Harvard Law School. A summary is available via The Harvard Crimson.

Last but not least, Gorsuch gives the keynote address this evening at the Federalist Society’s 2017 National Lawyers Convention Annual Dinner.

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Court grants review in three new cases

Court grants review in three new casesThis morning the justices issued orders from last week’s conference. They added three new cases to their merits docket for the term, including two high-profile First Amendment cases, and they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena […]

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Court grants review in three new cases

This morning the justices issued orders from last week’s conference. They added three new cases to their merits docket for the term, including two high-profile First Amendment cases, and they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan.

In the first of today’s grants, National Institute of Family and Life Advocates v. Becerra, the justices agreed to weigh in on a challenge by “crisis pregnancy centers” – nonprofits that try to steer pregnant women away from having abortions – to a California law that requires the centers to convey specific messages. The law mandates that nonprofits that are licensed to provide medical services post notices to inform their patients that free or low-cost abortions are available and to provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. The groups that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear – in up to 13 languages – that their services do not include medical help.

The nonprofits went to court, arguing that California’s law violates the First Amendment, both by requiring them to convey the messages and, because the requirements do not apply to clinics that perform abortions, by targeting them because they discourage women from seeking abortions. A federal district court rejected their arguments, and the U.S. Court of Appeals for the 9th Circuit affirmed. The nonprofits went to the Supreme Court last spring, hoping that it would agree to rule on their case. After asking the lower court to send the record in the case – a sure sign that at least one justice is looking at the case closely — today the court granted review to decide whether the disclosures required by the California law violate the First Amendment’s free speech clause; it declined to decide whether the disclosures run afoul of another part of the First Amendment that bars the government from prohibiting the free exercise of religion.

With today’s grant in his lawsuit against Riviera Beach, Florida, Fane Lozman – whose eponymous website describes him as a “persistent and tenacious underdog who fought against the government seizure of 2200 homes and businesses” – joins Carol Ann Bond and Encino Motorcars in the pantheon of recent repeat litigants on the merits at the Supreme Court. But unlike Bond’s and Encino’s, Lozman’s latest case involves an entirely different set of legal issues from those presented in his first case, even though his opponent is the same.

In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.

The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.

Under Minnesota law, voters may not wear political badges, buttons, or other apparel to polling places, even if the items being worn do not refer to either a candidate or an issue. In Minnesota Voters Alliance v. Mansky, the justices today agreed to decide whether this ban violates the First Amendment’s guarantee of free speech.

The case arose in November 2010 when Andrew Cilek, the alliance’s executive director, was prevented from voting at his local polling place because he was wearing a Tea Party T-shirt and a button that promoted efforts to require a photo ID to vote. After the election was over, the group – which describes itself as a “nonpartisan political organization focusing primarily on election integrity, research, voter education and advocacy” – filed a lawsuit to challenge the law. After the lower courts rejected the group’s claim, the group asked the Supreme Court to weigh in. It argued that the decision by the U.S. Court of Appeals for the 8th Circuit “effectively chills the free speech rights of millions of voters across the country by threatening criminal prosecution or civil penalties for voters who wear logoed t-shirts, caps, jackets, buttons, and other apparel in state-declared speech-free zones.”

In Reeves v. Alabama, the justices declined to wade into the question of when an attorney’s representation of a criminal defendant is so inadequate that it violates the defendant’s Sixth Amendment right to have help from an attorney, and how courts should make that determination. In Strickland v. Washington, the Supreme Court outlined a standard for courts to use to decide whether an attorney was constitutionally ineffective: (1) the attorney’s performance must be deficient; and (2) the defendant must have been prejudiced by that deficient performance – that is, he must show a reasonable probability that, if the attorney had not been deficient, the result would have been different.

In 1997, Matthew Reeves was on trial in Alabama for capital murder for the death of Willie Johnson in a robbery. Reeves contends that, although his court-appointed attorneys were aware that he could have an intellectual disability, and although the trial court had granted the attorneys’ request for funds to pay for an expert to evaluate Reeves, his attorneys failed to hire any mental health professionals to do so; they also did not call any witnesses to testify about a possible intellectual disability. Instead, they presented testimony from a court-appointed expert who had conducted only a limited examination of Reeves, and with whom Reeves’ attorneys had not spoken until the day she testified. Reeves was sentenced to death.

Reeves challenged his sentence, but the Alabama courts ruled against him on the ground that he had not called his trial attorneys to testify about their actions. That rule, Reeves told the Supreme Court, conflicts with the holdings of five federal courts of appeals and one state supreme court, which “recognize that reviewing courts must examine the record as a whole, even in the absence of direct testimony from trial counsel that purports to explain strategic trial decisions, to determine whether the defendant received constitutionally effective representation.”

Today the Supreme Court turned down Reeves’ petition. That order drew a sharp 14-page dissent (4 pages longer than Justice Ruth Bader Ginsburg’s opinion on the merits last week in Hamer v. Neighborhood Housing Services of Chicago) from Sotomayor, joined by Ginsburg and Kagan – but not Justice Stephen Breyer, who has recently been most likely to object to the court’s rulings against death-row inmates. Sotomayor began by emphasizing that there “can be no dispute” that a categorical rule requiring attorneys to testify in federal cases alleging ineffective assistance of counsel would be inconsistent with the Supreme Court’s rulings “requiring an objective inquiry into the adequacy and reasonableness of” the attorney’s performance “based on the full record before the court.” Indeed, Sotomayor stressed, even “Alabama does not defend such a rule.” Instead, she continued, the dispute in Reeves’ case was whether the Alabama state court “in fact imposed such a rule.”

Because Sotomayor believed that the state court “plainly did so,” she would have sent the case back to the state court for it to “explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance.” But instead, Sotomayor lamented, “the Court has cleared the way for Reeves’ execution.” And that, Sotomayor concluded, “is a result with which I cannot agree.”

The justices’ next conference is scheduled for November 21.

This post was originally published at Howe on the Court.

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Kagan recuses from immigrant-detention case

Kagan recuses from immigrant-detention caseThe fate of a high-profile challenge to the long-term detention of immigrants facing deportation without a bond hearing appeared less certain tonight, with the announcement – made over a month after oral argument – that Justice Elena Kagan would no longer participate in the case. In a letter sent to lawyers for the two sides […]

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Kagan recuses from immigrant-detention case

The fate of a high-profile challenge to the long-term detention of immigrants facing deportation without a bond hearing appeared less certain tonight, with the announcement – made over a month after oral argument – that Justice Elena Kagan would no longer participate in the case. In a letter sent to lawyers for the two sides in Jennings v. Rodriguez, Scott Harris – the clerk of the Supreme Court – indicated that Kagan had learned only today that “while serving as Solicitor General, she authorized the filing of a pleading in an earlier phase” of the case.  

This evening’s announcement was significant for two reasons. First, it raises the possibility that, with Kagan recused, the justices may not be able to reach a decision on the merits of the case. The justices first heard oral argument in the case in November of 2016, before Justice Neil Gorsuch was nominated and confirmed. But – presumably because they were deadlocked four to four, although there is no way to know for sure – the justices ordered reargument last summer. If the justices had hoped that Gorsuch could break the stalemate and allow them to resolve the case, Kagan’s absence could throw a wrench into the works.

Tonight’s letter also returns attention (no doubt, from the justices’ perspective, unwelcome) to the justices’ recusal practices and the procedures they use to identify potential conflicts. In January of this year, Harris announced that Chief Justice John Roberts would no longer participate in a patent case argued nearly a month earlier. Roberts had recently learned, Harris explained, that the petitioner in the case was owned by a company in which Roberts owned stock. And in 2016, Justice Stephen Breyer sat on the bench when the court heard oral argument in an energy case even though his wife owned stock in a Wisconsin company whose subsidiary was part of the case. Breyer only disclosed the conflict in response to questions from Bloomberg News, and his wife sold her shares.

 

 

 

 

 

This post was originally published at Howe on the Court.

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Court issues orders, but no grants, from November 3 conference

Court issues orders, but no grants, from November 3 conferenceThis morning the Supreme Court issued orders from its November 3 conference. For the second week in a row, the justices did not add any new cases to their merits docket for the term. However, they did issue two summary decisions, without briefing on the merits or oral argument, reversing rulings by federal appeals courts […]

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Court issues orders, but no grants, from November 3 conference

This morning the Supreme Court issued orders from its November 3 conference. For the second week in a row, the justices did not add any new cases to their merits docket for the term. However, they did issue two summary decisions, without briefing on the merits or oral argument, reversing rulings by federal appeals courts in favor of inmates.

Both cases involved questions of federal habeas law – that is, the law governing efforts by state prisoners to challenge the constitutionality of their convictions in federal court. Under the Antiterrorism and Effective Death Penalty Act, such inmates face a high bar. They must show not only that the state court decision against them was wrong, but also that the decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” And neither inmate in today’s cases, the court concluded, could clear that bar.

Michael Cuero, the inmate in the first summary reversal, Kernan v. Cuero, was responsible for a car crash that left another man with grave injuries; Cuero, who was on parole for earlier drug convictions, was under the influence of methamphetamines at the time and was illegally carrying a loaded gun.

Cuero pleaded guilty to charges that would have led to a sentence of approximately 14 years. But before he was sentenced, prosecutors sought to amend the criminal complaint against him to account for two other felony convictions, including assault with a deadly weapon – which would qualify as a second “strike” under California’s “three strikes” law. The trial court granted the prosecutors’ request and permitted Cuero to withdraw his guilty plea. Prosecutors then struck a new deal with him, in which he pleaded guilty and was sentenced to 25 years.

Cuero’s case eventually made its way to the U.S. Court of Appeals for the 9th Circuit, which ruled that the trial court’s decision to allow prosecutors to amend the complaint was contrary to, and an unreasonable application of, clearly established federal law. The court of appeals reasoned that Cuero had a due-process right to have his first plea agreement enforced, and it ordered the federal district court handling Cuero’s case to require the state to resentence him with his original plea deal.

The state – on behalf of the head of the state prison system – asked the Supreme Court to review that ruling. After considering the case at four consecutive conferences, the Supreme Court today reversed. In an unsigned eight-page opinion, the justices reasoned that, even if the state’s efforts to amend the complaint violated the Constitution, there are no Supreme Court cases that “clearly establish” Cuero’s right to have the first plea deal enforced as a remedy for that violation.

In Dunn v. Madison, the state of Alabama asked the Supreme Court to review a decision by the U.S. Court of Appeals for the 11th Circuit blocking the execution of Vernon Madison, who in 1985 shot a police officer in the back of his head and killed him; the officer was helping to protect Madison’s former girlfriend while Madison moved out of their house. Madison also shot the former girlfriend in the back while she was trying to run to safety, but she survived.

Under the Supreme Court’s case law, the Eighth Amendment bars the government from executing a prisoner who is insane. During Madison’s state post-conviction proceedings, an expert hired by Madison’s own lawyers testified that although Madison understood what his sentence meant, he did not remember committing the murder; an expert appointed by the court testified that Madison could remember other details from his life around the time of the murder. The state post-conviction court ruled that Madison was competent to be executed, but the 11th Circuit concluded that the state court’s decision was “patently unreasonable” – and therefore Madison was entitled to federal habeas relief – because Madison is “a man with no memory of what he did wrong.”

In a four-page unsigned opinion, the Supreme Court reversed the appeals court’s ruling in Madison’s favor. The Supreme Court cases on which the 11th Circuit relied, the opinion explained, did not clearly establish that a “prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in this case.” Here, the opinion continued, the state court’s application of those Supreme Court cases was not unreasonable “when it determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed.”

Justice Ruth Bader Ginsburg wrote a one-paragraph concurring opinion, joined by Justices Stephen Breyer and Sonia Sotomayor. Ginsburg stressed that the constitutional question at the heart of the case – whether the state can execute someone who does not remember the crime for which he has been sentenced to death – “is a substantial question not yet addressed by the Court” that would, at the right time, “warrant full airing.” But, she added, this is not the right case in which to address that question, because of the limitations imposed by AEDPA.

In a separate concurring opinion not joined by any of his colleagues, Breyer once again – as he has repeatedly over the past several years – suggested that the Supreme Court should revisit the broader question whether the death penalty is constitutional. Breyer began by observing that Madison’s case “illustrates one of the basic problems with the administration of the death penalty itself”: the “unconscionably long periods of time that prisoners often spend on death row awaiting execution.” The 67-year-old Madison has been on death row for 32 years. He “has suffered severe strokes”; he cannot walk, and he is “legally blind” and “incontinent.” Breyer went on to note that this is not an anomaly, and that the United States “may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age.” But, he suggested, the correct response is not necessarily to “develop a constitutional jurisprudence that focuses upon the special circumstances of the aged,” but instead to “reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

The justices will meet for their next conference on Thursday, November 9.

This post was originally published at Howe on the Court.

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Government seeks to vacate D.C. Circuit abortion ruling, asks for disciplinary action against lawyers

Government seeks to vacate D.C. Circuit abortion ruling, asks for disciplinary action against lawyers“Jane Doe,” the 17-year-old pregnant teenager who was caught trying to enter the United States illegally, had an abortion nine days ago, on October 25. A ruling by the full U.S. Court of Appeals for the District of Columbia Circuit the previous day had cleared the way for Doe’s abortion after the federal government – […]

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Government seeks to vacate D.C. Circuit abortion ruling, asks for disciplinary action against lawyers

“Jane Doe,” the 17-year-old pregnant teenager who was caught trying to enter the United States illegally, had an abortion nine days ago, on October 25. A ruling by the full U.S. Court of Appeals for the District of Columbia Circuit the previous day had cleared the way for Doe’s abortion after the federal government – citing a desire to avoid facilitating abortions – had refused to allow her to leave the shelter where she was being held in custody. Today the federal government went to the Supreme Court, where it asked the justices to vacate the D.C. Circuit’s ruling, which would mean that the decision would no longer serve as legal precedent. And in a highly unusual move, the government also suggested that the justices should sanction Doe’s attorneys for misconduct that, the government argued, thwarted it from seeking Supreme Court review of the decision in the first place.

In its 29-page petition for review (which was signed by Solicitor General Noel Francisco and Deputy Solicitor General Jeffrey Wall but not by any career lawyers in the Office of the Solicitor General), the government chronicled the events leading up to Jane Doe’s abortion in some detail. After the D.C. Circuit ruled on Doe’s case on October 24, the government explained, lawyers for the United States believed – based on representations from Doe’s attorneys – that Doe would have an appointment with a doctor for counseling about the abortion on October 25, to be followed by the abortion itself on October 26. Relying on those representations, the government continued, as well as an agreement with Doe’s lawyers to keep them informed about the timing of Doe’s abortion, it planned to file a brief on October 25 asking the Supreme Court to put the D.C. Circuit’s ruling on hold.

According to the government, Doe’s attorneys then changed the plans without telling them: Instead of Doe’s receiving counseling on October 25 and an abortion on October 26, the abortion was performed early on the morning of October 25 – before the government could go to the Supreme Court to block it. On October 26, Francisco wrote to David Cole, the legal director of the American Civil Liberties Union, which represented Doe, to express his concern that the ACLU’s attorneys may have “misled the Department of Justice about when Jane Doe would undergo an abortion, thereby preventing the Department from seeking Supreme Court review.”

Cole responded that the ACLU’s attorneys had “never agreed to provide the government information about the nature of Ms. Doe’s appointments or to give the government advance notice of the imminence of her abortion.”

With today’s filing, the government asked the Supreme Court to do two things. First, it urged the justices to vacate the D.C. Circuit’s ruling in favor of Jane Doe and to instruct the D.C. Circuit to send the case back to a federal trial court for it to dismiss the claims relating to “the government’s treatment of pregnant unaccompanied minors” – because Jane Doe no longer is one. That is the correct next step, the government contended, because the government’s efforts to appeal the D.C. Circuit’s decision became moot as a result of the conduct of Doe’s lawyers.

Second, the government suggested that the justices “may wish to issue an order to show cause why disciplinary action should not be taken against” Doe’s attorneys for “what appear to be material misrepresentations and omissions to the government designed to thwart this Court’s review.” At a minimum, the government continued, “this Court may wish to seek an explanation from counsel regarding this highly unusual chain of events.”

In a statement issued today, Cole provided a preview of the arguments that Jane Doe’s lawyers are likely to make in opposing Supreme Court review. As Doe’s lawyers, Cole explained, their job was to “see that she wasn’t delayed any further — not to give the government another chance to stand in her way.” “Our lawyers,” Cole continued, “acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.” The ACLU’s full brief in opposition will be due in approximately one month.

This post was originally published at Howe on the Court.

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Portrait of a justice: Roberts and Barrett on the life and legacy of Robert Jackson

Portrait of a justice: Roberts and Barrett on the life and legacy of Robert JacksonAmong the privileges and immunities of the chief justice is the right to adorn the walls of the Supreme Court. And in the justices’ private conference room, Chief Justice John Roberts has chosen to hang portraits of John Marshall, Benjamin Cardozo, a John Marshall Harlan (wagers as to which one?), and the subject of a […]

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Portrait of a justice: Roberts and Barrett on the life and legacy of Robert Jackson

Among the privileges and immunities of the chief justice is the right to adorn the walls of the Supreme Court. And in the justices’ private conference room, Chief Justice John Roberts has chosen to hang portraits of John Marshall, Benjamin Cardozo, a John Marshall Harlan (wagers as to which one?), and the subject of a lecture sponsored by the Supreme Court Historical Society on Wednesday, Robert Jackson.

Roberts – who clerked for then-Associate Justice William Rehnquist, who clerked for Jackson – proudly noted this “genealogical connection” to the renowned jurist. After praising Jackson’s “eye for allocating his time and talent for the furtherance of our constitutional system of government,” Roberts suggested that the historical society could offer a whole series just on Jackson the country lawyer; or on Jackson the chief prosecutor in Nuremberg; or on Jackson the solicitor general, a position Justice Louis Brandeis once said he wished Jackson could occupy for life. Or of course the society could host a series just on Jackson the Supreme Court justice, a dissenter from the infamous Korematsu v. United States decision that upheld the internment of Japanese Americans during World War II and the author of the enduring aphorism about the justices – remember Korematsu – “We are not final because we are infallible, but we are infallible only because we are final.”

“But an evening on Jackson as a member of FDR’s cabinet is a good place to start,” Roberts concluded.

Roberts yielded the lectern to John Q. Barrett, a law professor at St. John’s University School of Law and the sender of the “Jackson List” – periodic emails about Jackson, the Supreme Court, Nuremberg and other topics.

Barrett opened by evoking the official groundbreaking for the current Supreme Court building. On October 13, 1932, President Herbert Hoover held a trowel as lawyers crowded around him. Barrett hypothesized that Jackson was among them. After all, Jackson – an attorney in private practice in upstate New York and friend of (and campaigner for) Franklin Roosevelt – was in Washington that day to speak at the American Bar Association’s annual meeting.

If Jackson was there, he likely did not even daydream about one day taking a seat behind the bench of the completed courtroom, Barrett suggested. Jackson, then 40, had “great self-confidence and ambition,” but that “would have been far-fetched.”

A “meteoric” rise got Jackson there in nine years. Barrett detailed the timeline:

1932: Roosevelt wins the presidency.

1933: Jackson “plays a little hard to get.” He wants a “lawyerly job with stature.”

1934: Jackson becomes general counsel of the Bureau of Internal Revenue in the Treasury Department – a precursor to the Internal Revenue Service that makes Jackson the head of the largest law office in the country (larger than the Department of Justice).

1935: Jackson moves to the Securities and Exchange Commission to work on defending the constitutionality of the Public Utility Holding Company Act.

1936: Jackson becomes assistant attorney general in charge of DOJ’s tax division.

1937: Jackson takes charge of DOJ’s antitrust division.

1938: Jackson becomes U.S. solicitor general.

1939: Jackson loves his job. The “switch in time that saved nine” – in which the Supreme Court became more “inclined to support” New Deal legislation – helps, but Jackson’s success in nearly 40 oral arguments is “overwhelming.”

1940: Jackson becomes attorney general. He’s also a serious presidential candidate. Expectation remains high that Roosevelt will retire as all two-term presidents have before, following a tradition set by George Washington. (Hitler’s aggression will change the political calculus, but Jackson remains a possible nominee for vice president.)

1941: Jackson becomes an associate justice.

Another date that Barrett evoked came after Jackson had served as a justice for a decade. On May 13, 1952, Jackson and his colleagues heard oral argument in Youngstown Sheet & Tube Co. v. Sawyer.

The U.S. solicitor general, Philip Perlman, sought to defend President Harry Truman’s seizure of steel mills to prevent a labor strike during the Korean War. As Roosevelt’s attorney general, Jackson had defended similar actions during World War II. Time and again Perlman referenced this earlier position.

In the end Jackson did not agree with Perlman, and he wrote an influential concurrence about the limits of executive power (distinguishing Roosevelt’s policies). However, Barrett did not dwell on the specifics of Jackson’s argument, but on more personal realizations swirling in the justice’s mind after oral argument. Jackson realized that he was one of the last living participants in Roosevelt’s administration and that his own memories of that period were fading. He began writing a biography of his former friend, one he did not complete before his death two years later.

Much of Jackson’s work as attorney general involved war preparation and its legal arguments: about the resumption of selective service and the seizure of defense-production facilities; about “lend-lease,” in which the United States would “lend” material aid to the Allies, who in return would “lease” bases around the world; and about detentions of foreign nationals and citizens, at that time only envisioned to be Germans and Italians. One legal argument suggested that the United States need not make a formal declaration of war, because instead of joining a battle the country would be aiding victims of Nazi Germany’s international crimes – an argument dropped but later developed during the Nuremberg prosecutions.

Barrett’s lecture – and Jackson’s writing about Roosevelt – extended beyond the professional ties between these 20th-century luminaries.

It seems that the two men were not disposed to deep emotional intimacy, but they took “pleasure in each other’s company” – fishing or playing poker together. They also shared a “sense of propriety,” and only once, Jackson wrote, did Roosevelt attempt to compromise Jackson’s judicial principles. During a poker game, Roosevelt asked Jackson how he had voted in Southern Steamship Company v. National Labor Relations Board. (Jackson joined a five-justice majority ruling against the president’s position.)

Barrett suggested that Roosevelt valued Jackson’s independence. Whether that’s true – and Barrett was not entirely sure – Jackson was certainly not a “yes man.” Barrett quoted from a letter written by Jackson to Roosevelt in 1916, before they were friends. Jackson had recommended a candidate for postmaster in upstate New York, but someone else had been nominated:

Our friend Mr. Smith … was turned down … because some time in the remote past he suffered from a venereal disease. Just how this disqualified him as postmaster I am not able to see, but never having suffered from this affliction myself, I cannot share the prejudice against it which the Post office officials seem to have.

As for Jackson’s unfinished biography of Roosevelt? Jackson’s son gave the manuscript to Barrett, who edited and completed the work: “That Man: An Insider’s Portrait of Franklin D. Roosevelt.”

The Supreme Court Historical Society has three upcoming events:

November 8: “The Reenactment of Clay v. United States

November 30: “James Wilson and the American Founding,” by William Ewald of the University of Pennsylvania

December 6: “Answering the Call: Leaving the Bench to Serve the President – James F. Byrnes and FDR,” by Sidney Milkins of the Miller Center for the Presidency

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No new grants today

No new grants todayThis morning the Supreme Court issued orders from its conference last Friday, but the justices did not add any new cases to their merits docket for the term. The justices declined to take up the property-rights question presented by a California case, 616 Croft Avenue v. West Hollywood, that they had considered at four consecutive […]

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No new grants today

This morning the Supreme Court issued orders from its conference last Friday, but the justices did not add any new cases to their merits docket for the term.

The justices declined to take up the property-rights question presented by a California case, 616 Croft Avenue v. West Hollywood, that they had considered at four consecutive conferences before finally denying review today. The dispute dates back to 2004, when a California couple applied to the city of West Hollywood for permission to redevelop two single-family houses into an 11-unit condominium complex. The city council approved the project, observing that it would provide “11 families with a high-quality living environment.” But, following a city housing ordinance, the council also required the couple to pay an “affordable housing fee” of over $500,000.

The couple argued that the fee was invalid under the Supreme Court’s property-rights decisions, which limit the government’s ability to condition approval of a permit on a requirement that the property owner allow the public to use the land. The California state courts rejected that claim, relying on a series of California cases holding that those limits do not apply when a fee is imposed by a generally applicable law. With today’s announcement that the Supreme Court will not intervene, the ruling in favor of the city will now stand.

The justices apparently did not act on several cases that they had carried over to last Friday’s meeting from earlier conferences – most notably, a trio of challenges by “crisis pregnancy centers,” nonprofits that try to steer pregnant women away from having abortions, to a California law that requires them to provide notices to the women who seek their services. The justices have now considered these cases at three conferences without acting on them.

The justices will meet again for another conference on Friday, November 3.

This post was originally published at Howe on the Court.

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More on Marshall – according to Ginsburg

More on Marshall – according to GinsburgTwo weeks ago, Justice Elena Kagan called Justice Thurgood Marshall “the greatest lawyer of the 20th century.” Here’s another one for the folks at Guinness: Justice Ruth Bader Ginsburg is the “most important woman lawyer in the history of the republic,” doing for women’s rights what Marshall did for the rights of people of color, […]

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More on Marshall – according to Ginsburg

Two weeks ago, Justice Elena Kagan called Justice Thurgood Marshall “the greatest lawyer of the 20th century.”

Here’s another one for the folks at Guinness: Justice Ruth Bader Ginsburg is the “most important woman lawyer in the history of the republic,” doing for women’s rights what Marshall did for the rights of people of color, said Judge Ann Claire Williams yesterday. Williams was quoting from President Jimmy Carter’s speech nominating Ginsburg to the U.S. Court of Appeals for the District of Columbia Circuit.

Justice Ginsburg (Art Lien)

Speaking with Ginsburg yesterday before an audience of young lawyers and law students at a conference sponsored by Equal Justice Works, Williams, a judge on the U.S. Court of Appeals for the 7th Circuit, had just outlined Ginsburg’s advocacy in six major Supreme Court cases.

After Ginsburg described her reaction to the nomination – “I never thought becoming a judge was possible” —  the justice next clarified what for her was a crucial distinction between her and Marshall.

“When Marshall was in a southern town, he didn’t know if he would be alive at the end of the day,” Ginsburg said. “My life was never in danger, so there’s an enormous difference.”

Ginsburg did offer that Marshall had “a winning technique, and we copied it” at the Women’s Rights Project of the American Civil Liberties Union. This technique involved “leading the court where you want to go, not with giant steps but taking things one step at a time.”

As Ginsburg explained, for nearly 20 years Marshall did not directly attack “separate but equal,” the doctrine from the 1896 case Plessy v. Ferguson that upheld the constitutionality of racial segregation. Instead, Marshall argued that the separate facilities at issue in various cases were simply unequal. For example, he mounted a successful challenge to the segregated law schools in Maryland (in the Maryland Court of Appeals case Murray v. Pearson). Only after “building blocks” like this one were in place did Marshall argue in Brown v. Board of Education that, as the Supreme Court held in that case, “[s]eparate educational facilities are inherently unequal.”

In confronting sex-based discrimination, Ginsburg borrowed Marshall’s technique of incremental steps by focusing first on discrimination’s negative consequences for men. For instance, in Weinberger v. Wiesenfeld, Ginsburg represented a widower challenging a provision of the Social Security Act that permitted widows but not widowers to collect special benefits while caring for minor children. Ginsburg emphasized that although the discrimination in Weisenfeld’s case “began with the attitude toward women” — the idea that they were caretakers and men were earners — “this hurts everybody” – both the man who has to work full-time and the child who loses a more involved parent.

“Let me give a big plug to Jimmy Carter,” Ginsburg said, returning to the president who first nominated her to the judiciary. According to Ginsburg, Carter in the 1970s recognized that the nation’s judges – primarily white men – did not reflect the demographic make-up of the United States. Carter intentionally nominated women and members of minority groups to federal judgeships and “literally changed the complexion of the federal judiciary.”

Later in the conversation, Williams returned to a claim Ginsburg has made in earlier interviews that she will be satisfied only when there are nine women on the Supreme Court. Ginsburg said that “it sounds extreme until you think that for most of history there were nine men serving.”

One law student asked Ginsburg whether there were any opinions that she wished were more widely read. Ginsburg replied that Judge Edward Tamm, her colleague on the D.C. Circuit, had advised her early in her judicial career: “When the opinion is released, don’t look back, go on to the next one, be a forward-looking person.”

A follow-up question by a different student contained the only the only hint of criticism in an afternoon that largely celebrated Ginsburg – replete with humorous references to her nickname (“Notorious RBG”), her workout routine, and an upcoming movie about her. The student expressed disappointment in Ginsburg’s majority opinion in City of Sherrill v. Oneida Indian Nation of New York, in which the court ruled against claims of tribal exemption from property taxes over certain land.

Was Ginsburg’s joining of Justice Sonia Sotomayor’s dissent in a later case, Adoptive Couple v. Baby Girl, in which Sotomayor argued for a stronger interpretation of the Indian Child Welfare Act, “your moving forward to rectify something of the past,” the student asked?

Without addressing the Oneida case, Ginsburg replied that when “on the losing side, you have to remain hopeful that the court will have another opportunity to do the right thing.” She referenced the nearly-century-old case Abrams v. United States, in which Justice Oliver Wendell Holmes’ dissent in defense of free speech has proven more powerful and lasting than the original holding.

Ginsburg doesn’t expect these future opportunities to be reserved for her successors. Joking that she has now passed the 23-year tenure of Justice Louis Brandeis – which she had once considered a benchmark – she told Williams yesterday that “as long as I can do the job full steam, I will do it.”

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Ohio voter case removed from November calendar

Ohio voter case removed from November calendarThe Supreme Court’s November sitting – which begins on Monday, October 30 – shrank today to six cases, which will be argued over five days. Husted v. A. Philip Randolph Institute, a challenge to the procedure that Ohio uses to remove inactive voters from its voter-registration lists, had been scheduled for oral argument on Wednesday, November […]

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Ohio voter case removed from November calendar

The Supreme Court’s November sitting – which begins on Monday, October 30 – shrank today to six cases, which will be argued over five days. Husted v. A. Philip Randolph Institute, a challenge to the procedure that Ohio uses to remove inactive voters from its voter-registration lists, had been scheduled for oral argument on Wednesday, November 8, but it will be postponed to a later, as-yet-undetermined date. The change came in the wake of a letter to the justices from Stuart Naifeh, an attorney for APRI. Naifeh told the court that medical reasons will preclude Brenda Wright, who had been slated to argue the case, from doing so; Naifeh will now argue the case but requested additional time to prepare. Attorneys for Ohio and the United States, which will argue as a “friend of the court” in support of the state, did not object to Naifeh’s request.

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