Event announcements

Event announcementsMultiple events this summer at the Chautauqua Institution in Chautauqua, New York, will involve the Supreme Court and its history. On July 26 at 3:30 p.m. Jeffrey Rosen will give a lecture on Justice Louis Brandeis. On July 28 at 3:30 p.m., John Barrett will give a lecture on Justice Robert Jackson. On August 16 […]

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Event announcements

Multiple events this summer at the Chautauqua Institution in Chautauqua, New York, will involve the Supreme Court and its history.

On July 26 at 3:30 p.m. Jeffrey Rosen will give a lecture on Justice Louis Brandeis.

On July 28 at 3:30 p.m., John Barrett will give a lecture on Justice Robert Jackson.

On August 16 at 4 p.m., Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit will give the 13th annual “Robert H. Jackson Lecture” on the Supreme Court.

More information about these events is available on the institution’s webpage.

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SCOTUS Map: May and June 2017 (and OT2016 Review)

Justice Stephen Breyer delivered remarks at the Cambridge Public Library’s Democracy Day activities on May 20, where he urged students to “work part of the time in something beyond yourself—in government, politics, library commission, art museum, school. Part of us is part of the community. I can’t tell you to do it, but I can […]

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The justices’ OT2016 events.

Justice Stephen Breyer delivered remarks at the Cambridge Public Library’s Democracy Day activities on May 20, where he urged students to “work part of the time in something beyond yourself—in government, politics, library commission, art museum, school. Part of us is part of the community. I can’t tell you to do it, but I can tell you, I’ve spent a lot of time with [the Constitution], and it foresees that you will participate in public life in some way or another. And Adams, and Hamilton, and Madison, and the others, I’m pretty sure, would have said, ‘If you don’t participate, it won’t work.’” Video of Breyer’s talk is online.

On May 22, Justice Ruth Bader Ginsburg received the Burton Award for the Book of the Year in Law for her work, “My Own Words.”

The following day, Ginsburg spoke at the American Law Institute’s 2017 Annual Dinner, where she explained the reasoning behind the justices’ oral dissents. Reading a summary of a dissent from the bench means that “not only did the Court get it wrong, but it was an egregious error,” Ginsburg said. “That’s why I read the Lilly Ledbetter dissent from the bench. When one writes that kind of dissent, there is an immediate object in mind, and that is Congress.” Asked which Supreme Court case she would turn into an opera, Ginsburg responded: “I can think of one—Anna Nicole Smith’s case.” As the audience burst into laughter, she added a caveat: “But there is an opera already. It played in London.” ALI has posted video to Vimeo.

The topic of opera came up again in Ginsburg’s Aspen Wye Fellows Discussion on May 24. Discussing her role in the Washington National Opera’s “Daughter of the Regiment,” Ginsburg recalled: “I was the Duchess of Krakenthorp for opening night. There was only one problem about that. It was the Saturday following the election, and I wrote my own lines, and they were all about valorous women.” The justice recounted the discrimination she faced seeking employment after law school as a young mother. “Getting the first job was hard for women of my vintage, but once you got the first job, you did it at least as well as the men, and so the next step was not as hard.” Her former colleague, the retired Justice Sandra Day O’Connor, had experienced similar difficulties, Ginsburg continued. “But life is strange. You never know—you may think that something not good has happened, like not being able to get a job. And it turns out to be remarkably lucky. Sandra said, ‘Where would the two of us be if there had been no discrimination? Well, today we’d be retired partners from a large law firm.’” The Star Democrat has a summary of Ginsburg’s remarks. Video of the talk is available online.

On June 2, Marshall alumni Breyer and Justice Neil Gorsuch appeared jointly at the 2017 Harvard Marshall Forum and Association of Marshall Scholars Annual Meeting, where they discussed the rule of law. Gorsuch called it a “blessing,” noting how remarkable it is that the “government can lose, in its own courts, and accept the judgment of those courts without an army to back up the judgments.” Gorsuch acknowledged that while “there is a lot of skepticism about the rule of law,” his lived experience has shown him that it is alive and well in this country. “I see it day in and day out in the trenches – the adversarial process of lawyers coming to court and shaking hands before and after, the judges shaking hands as we do, before we ascend to the bench. That’s how we resolve differences in this society.” Breyer agreed, pointing to the aftermath of Bush v. Gore. “It was wrong in my opinion, OK, but people followed it. They did not go out and throw stones or shoot other people.” According to Harvard Law Today, the two justices also reminisced about their time as Marshall scholars. Gorsuch recalled meeting his wife while studying at Oxford, to which Breyer added: “I, too, have married a British woman, and she’s beautiful, but it’s not the same one.” The Boston Globe, New York Times, Washington Post, and the Associated Press also covered the event.

Chief Justice John Roberts delivered the 2017 commencement speech at the Cardigan Mountain School, a sixth- to ninth-grade New Hampshire boys’ boarding school from which his son was graduating. Skipping the usual graduation-season platitudes, the chief justice told the young men:

From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion.

Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Video of the full speech is available on the Cardigan Mountain School’s YouTube page.

Breyer sat for a conversation on the first night of the American Constitution Society’s 2017 National Convention. There, he explained the development of his views on the death penalty, despite not having encountered many such cases as a judge on the U.S. Court of Appeals for the 1st Circuit:

What happens after you’re there for a while is, you begin to get—and I think it happened with [John Paul] Stevens, I think it happened with Lewis Powell, and I think it happened with Harry Blackmun—you get the feeling, like I said in the [Glossip v. Gross] opinion, that this is random. Now, it’s one thing to say it, and it’s another thing to sit there over a long period of time and begin to think, yes, it is. There is a problem here, there is really a problem.

So then I thought, OK, I can say that, but what do I add, really, to what other justices have already said? Arthur Goldberg wrote an opinion years ago and I thought, well, I could say I agree with him, and people would say, that’s very interesting, that’s nice and fine. Or I could try and do something that would in fact be useful to others. And therefore, we spent considerable time—I’d say a year and a half—and over a long period of time gathering the information, trying to organize it, trying to work out the thinking, and trying to say, look—I’m not going to say it’s unconstitutional, either, but I’m going to say, we ought to consider it. Because that’s what I think. And in my opinion, you don’t decide a major thing without hearing argument, so I wanted to make that point, too. I said, well, look at the facts, look at the figures, look at the situation.

GWU Law News covered the ACS event, and video is posted online.

On June 9, Justice Sonia Sotomayor spoke to students and presided over arguments at the Thurgood Marshall Junior Mock Trial Program, now in its 20th year. The mock trial was held on the same day and in the same venue, the Bronx County Courthouse, as the Bronx County Women’s Bar Annual Installation Reception, where Sotomayor was the honored guest. Coverage of the mock trial comes from the Bronx Free Press and Fox 5 NY.

Sotomayor received the 2017 Achievement Award at the American Association of University Women’s National Convention Banquet in Washington on June 16. The AAUW has a short recap of the night’s festivities.

Ginsburg and Breyer served on a panel of judges at The Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial on June 19, hearing a fictitious case based on the Weird Sisters in Macbeth. According to Molly Runkle, who covered the proceedings for this blog, the advocates made many lighthearted references to current events, including lines about “drain[ing] the bog,” “the greatest witch hunt,” and the Sisters “appear[ing] out of nowhere, like Sean Spicer from the bushes.”

Ginsburg participated in another Bard-based mock trial on June 21, presiding over the Justice for Shylock appeal that the Law Library of Congress held to commemorate the 500th anniversary of the Venice Ghetto. The role of Shylock was performed by Edward Gero, who also portrays Justice Antonin Scalia in “The Originalist.” Coverage comes from DC Metro Theater Arts. The Library of Congress has posted video of the program on YouTube.

On June 26, Ginsburg discussed her book, “My Own Words,” at the Cornell Club of Washington.

Closing out the month, Justice Elena Kagan spoke at the ABA Deans Workshop in Washington on June 30, where the topic was the future of legal education. On the same day, Roberts made headlines in Lancaster, Pennsylvania, when he told the audience at a District of Columbia Circuit judicial conference that pop-culture references can be an effective way of making a point. However, Roberts noted, this approach may not work in every situation — “[t]here is a real danger if you do it at oral argument, and that is that Justice Breyer may have no idea what you are talking about.” (To be fair, this term Breyer became the first Supreme Court justice to make a Kim Kardashian reference at oral argument.) Coverage comes from Lancaster Online and the Associated Press.

This term, SCOTUS Map recorded 119 appearances by the nine active and three retired justices. The breakdown of events (by month and by justice) is set out in the chart below:

November 2016 and February 2017 were the busiest months for the justices:

This term, Sotomayor dethroned Breyer as the most active justice, logging 33 appearances (ten more than she had recorded in OT2015). Sotomayor was also the only justice to participate in at least one event in every month of OT2016, notching seven appearances in April 2017 alone. Ginsburg was the second-most active justice of the term, with 24 events in total. Breyer was third with 19 appearances, followed closely by Alito with 17.

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Event announcement

Event announcementOn July 21 at 9 a.m., the Virginia Bar Association will present a program entitled “The Roberts Court at Age 11: The 2016 U.S. Supreme Court Term in Review.” Speakers will include Deepak Gupta, Toby Heytens and Marcia Coyle; Bill Hurd will serve as moderator. More information about this event, which is part of the […]

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Event announcement

On July 21 at 9 a.m., the Virginia Bar Association will present a program entitled “The Roberts Court at Age 11: The 2016 U.S. Supreme Court Term in Review.” Speakers will include Deepak Gupta, Toby Heytens and Marcia Coyle; Bill Hurd will serve as moderator. More information about this event, which is part of the bar association’s summer meeting, is available on the VBA website.

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Event announcement

Event announcementOn July 7 at 12 p.m. PDT, UC Davis School of Law will host a review of October Term 2016. Speakers will include Kevin Johnson, Carlton Larson, Aaron Tang, Easha Anand and Madhavi Sunder. More information about this event, which will be held at the Sacramento office of Orrick, Herrington & Sutcliffe LLP, is available […]

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Event announcement

On July 7 at 12 p.m. PDT, UC Davis School of Law will host a review of October Term 2016. Speakers will include Kevin Johnson, Carlton Larson, Aaron Tang, Easha Anand and Madhavi Sunder. More information about this event, which will be held at the Sacramento office of Orrick, Herrington & Sutcliffe LLP, is available on the law school’s faculty blog.

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Event announcement

Event announcementOn July 19 at 6 p.m., the New York City Bar Association will host a review of October Term 2016. Speakers will include Beth Brinkmann, Caitlin Halligan, Pamela Karlan, Deanne Maynard and Barbara Underwood. Judge Paul Engelmayer will moderate, and William Weinstein will serve as program chair. More information about and registration for this event, […]

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Event announcement

On July 19 at 6 p.m., the New York City Bar Association will host a review of October Term 2016. Speakers will include Beth Brinkmann, Caitlin Halligan, Pamela Karlan, Deanne Maynard and Barbara Underwood. Judge Paul Engelmayer will moderate, and William Weinstein will serve as program chair. More information about and registration for this event, which will be held at the New York City Bar office, are available on the bar’s website.

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A “view” from the courtroom: A day for drama on the bench

A “view” from the courtroom: A day for drama on the benchEven in a Supreme Court term that many would agree is the first non-blockbuster in a good five years, the justices have managed to build up some suspense for their season finale this morning. As we await the justices, Lyle Denniston has joined us in the press section. Normally on opinion days, Denniston stays down […]

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A “view” from the courtroom: A day for drama on the bench

Even in a Supreme Court term that many would agree is the first non-blockbuster in a good five years, the justices have managed to build up some suspense for their season finale this morning.

As we await the justices, Lyle Denniston has joined us in the press section. Normally on opinion days, Denniston stays down in the press room. But he announced last week that he is retiring — once and for all — from covering the court after nearly 60 years working for such outlets as The Wall Street Journal, the Washington Star, the Baltimore Sun, the Boston Globe, SCOTUSblog, the Constitution Daily blog and his own law blog.

Lyle’s wife, Pamela Houghton-Denniston, is here today for the occasion. She is member of the Supreme Court Bar and is sitting adjacent to her husband, but in that section.

Justice Sotomayor dissents in Trinity Lutheran (Art Lien)

Also in the press section in the courtroom today are two sketch artists — Art Lien of NBC News (and SCOTUSblog) and Bill Hennessy of CNN. We mention this only because we’re afraid that one or both might soon be called away from the court regularly to sketch the White House press briefing, as Hennessy was last week when the briefing was closed to cameras.

Meanwhile, across the room in the VIP section, Virginia Thomas, Justice Clarence Thomas’s wife, arrives. She is soon followed by Jane Roberts, the wife of Chief Justice John Roberts, and their two children, Josie and Jack. Joanna Breyer, the wife of Justice Stephen Breyer, also files into the section. But Mary Kennedy, the wife of Justice Anthony Kennedy, is a no-show, even though she is no stranger to the courtroom, especially on the last day of the term.

This is probably one more indication that no retirement announcement is coming from Justice Kennedy this morning. (And we have been a bit dubious that any such announcement would come from the bench. We can’t think of a retiring justice in recent decades who first disclosed his or her retirement in the courtroom.)

The justices take the bench about a minute or two late this morning. The chief justice announces that Thomas has the opinion for the court in Davila v. Davis. Thomas briefly describes the background of the case before using a favorite phrasing of his to announce the holding: “In an opinion filed with the clerk today …” This formulation, which makes it seem as though you are witnessing the law change at that very moment, was employed by a number of past justices but has fallen out of favor with Thomas’ current colleagues.

Thomas says that because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. The decision is 5-4 along the court’s conservative-liberal divide.

Kennedy is up next with the opinion in California Public Employees’ Retirement System v. ANZ Securities Inc. As soon as Kennedy mentions the word “retirement” in the name of California’s largest public-pension fund, we can practically hear the jokes emanating from the press room about Kennedy’s discussing retirement from the bench.

The decision is another 5-4 one along the conservative-liberal divide, with the majority holding that CalPERS’ untimely filing of its complaint more than three years after the relevant securities offering is ground for dismissal.

Kennedy, who had been leaning forward to inspect the pages of his summary as Thomas spoke and remained there while he delivered it, now leans back in his chair and seems relaxed.

Roberts announces that he has the opinion in Trinity Lutheran Church of Columbia Inc. v. Comer, except that he has only a judgment of the court with respect to Footnote 3, he says. We can’t wait to read this footnote, but it will remain a mystery as the chief justice recounts the story behind a case that was granted cert way back in January 2016.

He discusses how the “pea gravel” of Trinity Lutheran’s playground that can be “unforgiving” when youngsters fall from the slides, jungle gyms and monkey bars. The church sued after it was denied a grant from Missouri’s Scrap Tire Program based on language in that state’s constitution barring aid to churches.

Roberts summarizes a fair amount of his opinion, concluding with his mention of an 1829 speech by a Maryland legislator who urged that state’s assembly to adopt a bill that would end the state’s disqualification of Jews from public office, which spoke of “persecution” and “an odious exclusion.”

“The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion,” Roberts says. “And the result of the state’s policy is nothing so dramatic as the denial of political office. The consequence is, in all likelihood, a few extra scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

Jordan Lorence of the Alliance Defending Freedom, which represented Trinity Lutheran, is seated near the front of the thinly populated bar section again today, and he listens intently to the summary.

The chief justice explains the somewhat complicated lineup that includes concurrences by Thomas and Justice Neil Gorsuch, a concurrence in the judgment by Breyer, and a dissent by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg.

Sotomayor reads from the bench at some length from her 27-page dissent.

“This court has never before, in its 200-year history, allowed a state to turn over taxpayer funds to a house of worship,” she says. “This case is remarkable.”

There are now three merits cases still up in the air. Roberts explains that in one, Hernandez v. Mesa, about the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent, a per curiam opinion has been issued and that the decision of the court below has been vacated and the case remanded. He explains that Thomas has filed a dissent, as has Breyer, joined by Ginsburg. But we otherwise don’t know in the courtroom what is really going on there.

Next, the chief justice announces that Jennings v. Rodriguez and Sessions v. Dimaya, both dealing with immigration, “are restored to the calendar for reargument.” Those are likely 4-4 ties in cases heard before Gorsuch joined the court.

The chief justice isn’t done. He has saved the announcement regarding the “travel ban” cases for one more dramatic moment in the courtroom.

He announces that the cert petitions in “Donald J. Trump versus International Refugee Assistance Project” and “Donald J. Trump versus Hawaii” are granted, and the government’s stay request is granted in part, with a partial concurrence and partial dissent by Thomas, Justice Samuel Alito, and Gorsuch. Again, there is a per curiam opinion that we don’t immediately have in hand.

Roberts then provides his traditional closing comments, thanking court employees for their outstanding work and dedication. He recognizes two who have retired in recent months: John Boulanger, an IT specialist with 25 years of service with the court, and Yvonne Rogers, a technician with 38 years’ experience.

The chief justice then turns towards the press section to recognize Denniston, citing not only his nearly 60 years of covering the Supreme Court but a career that began in 1948, covering the Otoe County Courthouse in Nebraska City, Neb. Denniston has covered Supreme Court terms that fill more than 200 volumes of the United States Reports, Roberts points out.

Every member of the court is looking Denniston’s way and smiling, including those who rarely if ever look toward the press section.

With that, Marshal Pamela Talkin bangs her gavel and announces that court is adjourned until October as the justices retreat through the curtains, the day’s drama at an end.

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A “view” from the courtroom: The metes and bounds of the term

A “view” from the courtroom: The metes and bounds of the termFridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced. But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming […]

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A “view” from the courtroom: The metes and bounds of the term

Fridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced.

But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming to finish its work by Monday. We’ll have our answer a little later.

The bar section is about as empty today as it was yesterday, with a handful of advocates present. Todd Gaziano of the Pacific Legal Foundation is here, awaiting a decision in Murr v. Wisconsin, a PLF case involving the takings clause. Jordan Lorence of the Alliance Defending Freedom is here, likely awaiting the decision in Trinity Lutheran Church of Columbia v. Comer. Arthur Spitzer, the legal director of the American Civil Liberties Union of Washington, D.C., is here, as he often is at the end of the term.

Justice Kennedy with opinion in Murr v. Wisconsin; Justices Alito and Thomas absent from bench (Art Lien)

Several members of the U.S. solicitor general’s office file in and take places at the counsel tables, while Noel Francisco, the president’s nominee for solicitor general who is serving in another Justice Department post pending his confirmation (thanks to this term’s decision in National Labor Relations Board v. SW General Inc.), takes a seat in the bar section. The public gallery contains a lot of young people today, but is not completely full.

Meanwhile, several of the justices’ law clerks have filled the vestibules on the south side of the courtroom.

After yesterday’s minor misstep, three marshal’s aides take their places behind the bench this morning at 10 a.m., before the justices’ arrival. When the court takes the bench, Justices Clarence Thomas and Samuel Alito are absent. It’s Thomas’ 69th birthday today, but we don’t think that’s the reason for his absence.

Chief Justice John Roberts announces that Justice Ruth Bader Ginsburg has the court’s opinion in Perry v. Merit Systems Protection Board.

This involves a U.S. Census Bureau employee who was dismissed for “spotty attendance,” she explains, and the legal question concerns the proper forum for an appeal of the merit board’s dismissal of a “mixed case” — one involving allegations that an adverse civil-service employment action was motivated by discrimination based on race, gender, age or disability.

Ginsburg’s opinion sides with federal district court review, rejecting the government’s argument that mixed claims be split between a district court and the U.S. Court of Appeals for the Federal Circuit.

Justice Neil Gorsuch has written a dissenting opinion, joined by Thomas. This was the first case heard by Gorsuch when he joined the court, and this is his first written dissent. He does not deliver it from the bench.

Justice Anthony Kennedy is next with the opinion in Murr v. Wisconsin, about a family’s challenge to municipal limits on its development of two parcels of property they own along the St. Croix river as a regulatory taking. (Authorities required the family to sell or build on the two lots as a single, combined property.)

This was one of the cases the court agreed to review while Justice Antonin Scalia was still alive, and the court carried it over to the current term. It was also argued on the first day of Gorsuch’s Senate confirmation hearing, when the attention of the press corps was focused on the Hart Senate Office Building.

What was already an important takings case took on a new perspective when, last fall, during one of many panel discussions in which legal experts preview the coming term, one such expert awoke us from a state of mental slumber by describing a footnote in the merits brief of the state of Wisconsin.

Wisconsin, in support of the idea that property lot lines are “creatures of state law,” reached back to English law to explain that landholdings were defined by “metes and bounds” — measurements and boundaries. Footnote 3 of the state’s brief then provided some further historical context:

In Medieval England, the ritual of “beating the bounds” was of particular importance to defining the boundaries of a parish, manor, or royal forest. … These “periodical surveys” preserved “ancient boundaries” by, among other methods, requiring young boys to beat a boundary mark “with peeled willow wands to impress its location on their memories.” … “[T]o preserve evidence of particular boundaries,” the “boys themselves” were sometimes whipped “on the spot” in exchange for a fee, “it being thought that the impression made on the memory was thus more likely to be lasting.” …. The testimony of boys—beaten during these ceremonies—was used to settle more than one boundary dispute.

Neither the oral argument nor Kennedy’s opinion delves into the practice of beating the bounds. But Kennedy does mention “metes and bounds,” and he observes that in considering the proper unit of property against which to assess the effect of the challenged governmental action, “courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law.”

Kennedy says that because, among other reasons, the value of the combined lots required by the local regulations is likely greater than the separate lots, the Murrs have not suffered a compensable taking. The chief justice has filed a dissent, joined by Thomas and Alito. Thomas has filed a separate dissent. And Gorsuch, of course, did not participate.

Roberts says that he has the opinion in Lee v. United States, one of the court’s many immigration cases this term.

The chief justice begins with the personal story of Jae Lee, who emigrated from South Korea at age 13 in 1982, graduated from high school in New York City, then set out to Memphis, where he eventually opened the Mandarin Palace Chinese Restaurant. Lee, long classified as a lawful permanent resident, was not always that lawful, as “he also engaged in some illegal acts,” Roberts says.

Lee’s arrest on drug charges led to some particularly bad advice from his defense lawyer, who had advised him that he would not face deportation if he pleaded guilty to the offense.

“Lee soon learned that his attorney was dead wrong,” Roberts says from the bench. Lee had pleaded guilty to an aggravated felony under the Immigration and Nationality Act and was subject to mandatory deportation. This led to a motion to vacate the conviction and sentence based on the fact that Lee had been provided constitutionally ineffective assistance of counsel.

It seems during this description that the chief justice is sympathetic to Lee’s claim.

He emphasizes the theme that Lee received “very bad advice” from his lawyer and that as someone who had lived for 30 years in the United States, established two businesses, had never returned to South Korea since childhood, and was the sole family member who could care for his elderly parents, Lee would place “paramount importance” on avoiding deportation.

Indeed, Roberts gets around to explaining that even though the evidence against Lee was strong, and thus choosing to go to trial might offer him faint hope of avoiding deportation, “we cannot say it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial.”

Thomas has filed a dissent joined but for one section by Alito. Gorsuch took no part.

With that, Roberts announces that “this court will next sit Monday morning at 10 o’clock. At that time we will announce all remaining opinions ready during this term of the court.”

Six cases remain. Whether they are all ready for announcement, or whether some are to be set for re-argument, is a question that should be answered on Monday.

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“Full of Sound and Covfefe”: The Trial of the Weird Sisters

“This is the single greatest witch hunt in Scotland’s history,” declared Deanne Maynard, counsel for the Weird Sisters. So began an evening of jokes perhaps best appreciated by a Washington, D.C., audience. Maynard battled former solicitor general Don Verrilli in the case of The Weird Sisters v. Kingdom of Scotland, based on Shakespeare’s “Macbeth.” The […]

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“This is the single greatest witch hunt in Scotland’s history,” declared Deanne Maynard, counsel for the Weird Sisters. So began an evening of jokes perhaps best appreciated by a Washington, D.C., audience. Maynard battled former solicitor general Don Verrilli in the case of The Weird Sisters v. Kingdom of Scotland, based on Shakespeare’s “Macbeth.” The Sisters were challenging their death sentences for their alleged role in Macbeth’s murder of King Duncan before U.S. Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer and Judges Sri Srinivasan, David Tatel and Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit.

Deanne E. Maynard (Morrison & Foerster LLP), foreground; Donald B. Verrilli, Jr. (Munger, Tolles & Olson LLP) and Adele El-Khouri (Munger, Tolles & Olson LLP), background; at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

In the lower court, the Sisters had been found guilty of both using witchcraft to solicit Duncan’s murder and aiding and abetting Macbeth in his commission of the crime. Addressing the first accusation, Maynard argued that the Sisters’ prophesying activity was protected by the First Amendment. (11th century Scottish law here looks remarkably similar to that of the 21st century United States.) Maynard proceeded to point to the role Lady Macbeth (“such a nasty woman”) played in convincing her husband to commit the crime. But given that both Macbeths had since perished, King Malcolm needed to “drain the bog” and were using the three vulnerable women as scapegoats.

One underpinning of Maynard’s argument was an inherent sexism in witchcraft proceedings. Maynard, who was assisted by two female associates, pointed out that the three of them could themselves be considered a coven of witches. And when Breyer questioned some of the supernatural accusations, Maynard said point-blank, “You’re a man,” and suggested that Macbeth kept “manterrupting” the Sisters.

Representing the Kingdom of Scotland, Verrilli opened with the assertion that “complaining about a witch hunt doesn’t get rid of a sound legal argument” and that “if someone is complaining about the greatest witch hunt” you can be assured that “something wicked this way comes.”

Verrilli’s argument focused on the inconsistencies in the Sisters’ assertions about their religious practices — are the women witches with a religion or just three sisters who have been unfairly maligned? “It’s like you say something is commerce, but then uphold it as a tax,” Verrilli continued.

Verrilli also questioned the supposed neutral nature of the Sisters’ prophecy to Macbeth that he would one day be king. He noted that “the Weird Sisters appear out of nowhere, like Sean Spicer from the bushes,” as evidence that this was no accident. That would be “pure applesauce,” he continued. Verrilli posited that it wasn’t just the prophecy, but the spell the sisters cast on Macbeth that made them culpable.

Donald B. Verrilli, Jr. (Munger, Tolles & Olson LLP) at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

The panel at times questioned the reliability of Macbeth’s story. “Didn’t Macbeth claim to have the biggest coronation crowd in history?” Millett inquired. And Ginsburg wondered whether the bloody dagger the Sisters allegedly conjured could have been in Macbeth’s mind. Breyer, who spent much of the proceeding confused by Verrilli’s “chestnut argument,” may have been distracted by a phone call he took from the bench in the middle of the session.

When the panel returned their verdict, the justices explained their votes. Ginsburg first delivered the opinion of the court that the women, whom even feminist icon RBG herself accidentally called “witches,” did not aid or abet in the murder. Ginsburg pointed to the historical fear of witches as a reason to burn women.

Srinivasan concurred, noting that the judges should approach their jobs with “empathy,” and harkening back to a time when he used to call his sisters weird, something he now regrets. Millett seemed the most outraged at the lower court’s opinion, noting that when Nate Silver accurately predicts who will be king, he is praised, but when these three women did so, they were convicted. Tatel, who had impressively asked all of his questions in trochaic meter, asserted, still in meter, that although he agreed with the result of the opinion, he differed in his reasoning, suggesting an equal protection argument for overturning the decision. Finally, Breyer, who had served as an off-kilter contrarian during much of the argument, was the lone dissenter, noting that “I don’t understand the chestnut argument, but I sense that it was a very good one.”

Judge Sri Srinivasan, Judges Stephen G. Breyer, Justice Ruth Bader Ginsburg, Judge David S. Tatel and Judge Patricia A. Millett at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

Following the opinion of the panel, we learned the opinion of the audience, who had voted with chips during the intermission. In a lopsided result, the audience agreed with the panel to overturn the conviction of the Weird Sisters.

This mock trial was put on by the Bard Association of the Shakespeare Theatre Company in Washington, where “Macbeth” recently finished its run.

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A “view” from the courtroom: The term’s first bonus day for opinions

A “view” from the courtroom: The term’s first bonus day for opinionsToday is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June. This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no […]

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A “view” from the courtroom: The term’s first bonus day for opinions

Today is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June.

This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no orders list on a day such as this.

In the courtroom, as is typical for the first added opinion day, the bar section is almost empty. About a dozen members of the Supreme Court Bar will show up, joined by Acting Solicitor General Jeffrey Wall and Deputy Solicitor General Edwin Kneedler. Deputy Solicitor General Michael Dreeben, who is no doubt busy with his temporary assignment with the special counsel’s office, is not here.

Usually, when the justices are prepared to take the bench, they are proceeded by several aides from the marshal’s office. Typically two, but more recently three, such aides emerge from the curtains and stand still for 10 or 15 seconds, a sign that the justices are about to appear. The aides, joined by a couple of more who emerge from the curtains, then help push in the justices’ chairs after Marshal Pamela Talkin delivers the traditional cry.

Today, the chime goes off to signal the start of the court session, and the marshal’s aides are not yet in place. Chief Justice John Roberts is the first one through the middle curtain opening, while the aides scramble in from the side openings. It’s nothing of significance in the great realm of the universe, but just an unscripted moment in an institution that is usually precise and tradition-bound.

The chief justice announces that Justice Elena Kagan has the opinion in Maslenjak v. United States. This case, about a Bosnian Serb woman who had come to the United States as a refugee and who was convicted of lying to the government when she sought citizenship, was the last argued for the term and sparked quite a lively argument.

Kagan explains that under the relevant federal criminal statute, the government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. This holding rejects the government’s view that the statute requires only a violation in the course of procuring citizenship, regardless of whether the violation made a difference in the decision to grant an application.

She cites the “riddle” from her opinion about a statement that “John obtained that painting illegally, but his unlawful acts did not play any role in obtaining it,” except in her bench statement she substitutes Jane for John.

“You would not have a clue what the statement meant, and you would think it was some sort of riddle,” Kagan says.

She also makes a reference to the fact that under the government’s theory, a long-ago speeding violation could prove problematic. That was a theme raised several times at oral argument by Roberts, who was skeptical of the government and has now joined Kagan’s opinion.

Kagan announces a voting lineup that includes an opinion by Justice Neil Gorsuch, joined by Justice Clarence Thomas, concurring in part and concurring in the judgment, and an opinion concurring in the judgment by Justice Samuel Alito. Gorsuch’s written concurrence is his first of that variety.

Next up is Justice Stephen Breyer with a 6-2 opinion in Turner v. United States. This case involves a notorious murder of a woman in the District of Columbia in 1984, and whether certain evidence the government had withheld from the defense was “material” under Brady v. Maryland.

This was argued for the federal government by Dreeben, who had seemingly mastered every fact in this complex, multi-defendant case.

Breyer describes some of the agreed-upon facts of the attack on the victim, “which was pretty gruesome,” and goes into some of the details of the “group attack theory” being challenged by some of the defendants.

“It gives you a flavor for it,” he says. “You’d have to look at the record.”

But the withheld evidence is “too little, too weak, or too distant to undermine the group attack theory,” Breyer says.

Kagan has filed a dissent that is joined by Justice Ruth Bader Ginsburg, and Gorsuch did not participate.

Justice Anthony Kennedy has the last opinion on a day devoted to the criminal law. It’s in Weaver v. Massachusetts, about a defendant’s challenge to a decision to close the courtroom to the public during two days of jury selection.

We aren’t aware in the courtroom that the “bench opinion” being distributed once Kennedy starts reading spells the state as “Masssachusetts.” It is quickly corrected in the online version.

Kennedy explains the doctrines at issue: structural error and ineffective assistance of counsel. The defendant’s counsel at trial did not object to the courtroom closure during voir dire.

Kennedy’s opinion holds for the court that, among other principles, because the defendant has not shown a reasonable probability of a different outcome but for his counsel’s failure to object to the courtroom closing or that his counsel’s shortcomings led to an unfair trial, he is not entitled to a new trial.

Amid a somewhat complicated lineup in a 7-2 judgment, Gorsuch has joined Kennedy’s opinion, a concurring opinion by Thomas, and an opinion concurring in the judgment by Alito. Breyer has written a dissent, joined by Kagan.

With that, Roberts turns to Talkin, the marshal, who bangs her gavel and announces that court will reconvene Friday at 10 o’clock. We think the marshal’s aides will be in place for that.

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A “view” from the courtroom: A clash of laws

A “view” from the courtroom: A clash of lawsIt’s back to business for the court today after the excitement of last Thursday’s special session for the investiture of Justice Neil Gorsuch. Retired Justice John Paul Stevens, who was present for the investiture, is back in the courtroom this morning, taking a seat next to Reporter of Decisions Christine Fallon. Going into today, there […]

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A “view” from the courtroom: A clash of laws

It’s back to business for the court today after the excitement of last Thursday’s special session for the investiture of Justice Neil Gorsuch. Retired Justice John Paul Stevens, who was present for the investiture, is back in the courtroom this morning, taking a seat next to Reporter of Decisions Christine Fallon.

Going into today, there are 17 pending merits decisions, and some uncertainty about whether the court will add an additional opinion day or two this week. We’ll get an answer at the very end of today’s session.

All nine justices take the bench on time this morning, in contrast to the delayed start to the investiture, which may have been caused by the various pictures and other behind-the-scenes activities involving President Donald Trump and first lady Melania Trump.

On this day after Father’s Day, Chief Justice John Roberts seems to be still basking in the glow of the proud father. In recent days, the Cardigan Mountain School in Canaan, New Hampshire, released a YouTube video of Roberts’s speech earlier this month at the 9th grade commencement ceremony for his son, Jack.

Roberts’ remarks were gracious, inspiring, funny — and brief. He urged the boys (it’s an all-boys school) to write a note once a week — on paper, not in email — to an adult, such as a past teacher. He told them they were privileged but they shouldn’t act like it, and he urged them to introduce themselves to those who clean and shovel the walks at their new schools. And he closed by quoting lyrics from Bob Dylan’s “Forever Young.”

Back on the bench, Roberts announces that Justice Samuel Alito “has the opinion of the court in two cases.”

The first one is Matal v. Tam, Alito says. He mentions “trademark” and the “Lanham Act” and that “we affirm” the ruling below, but not much more before he is announcing the complicated lineup, which is a unanimous judgment among participating justices but with only parts of his opinion signed by a majority.

If one didn’t know that Michelle Lee had recently left as director of the U.S. Patent and Trademark Office, and been replaced by interim Director Joseph Matal, one might not immediately recognize this as one of the bigger cases of the term, argued under the caption Lee v. Tam. This is the big fight over the Lanham Act’s disparagement clause and its effect on the Asian-American rock band called The Slants.

In the courtroom, it is not immediately clear why Alito is giving such an expedited announcement. Is it because he doesn’t want to delve publicly into some of the disparaging names that have been raised in the case? Or is it just because the judgment is too complex to lend itself to easy summary?

Before we can even finish pondering that, Alito is on to his second case, Bristol-Myers Squibb Co. v. Superior Court of California. He doesn’t spend much more time than he did on the Tam summary to explain the ruling that California’s courts lack specific jurisdiction to hear the claims of nonresidents over injuries allegedly caused by the pharmaceutical giant’s drug Plavix. Alito says the Supreme Court has reversed the judgment of the “court of appeals” before correcting himself to say that it is the California Supreme Court that has been reversed and remanded.

Justice Stephen Breyer is next with the opinion in McWilliams v. Dunn, which holds that under certain circumstances the state must provide a criminal defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to assist in preparing and presenting a defense.

The vote is five to four along the lines of “the usual suspects,” to cite a phrase Breyer has mentioned in recent speeches. He means the liberal versus conservative blocs, and in this case it is Justice Anthony Kennedy joining him and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, while the newly constituted conservative bloc of Roberts and Justices Alito, Clarence Thomas, and Gorsuch are in the minority.

The chief justice announces that “Justice Kennedy has the opinion of the court in two cases.”

Packingham v. North Carolina is first, about that state’s law that bars those on its sex offender registry from accessing commercial social-media sites. Based on the tenor of oral arguments in the case, and Kennedy’s opening lines about “cyberspace” being one of the “most important places for the exchange of views,” things do not look good for the state statute.

Kennedy tosses out the names of social-media sites such as Facebook, Twitter, and LinkedIn, explaining that they are places for users to exchange political and social views with others, including petitioning their representatives on Twitter.

He explains that the “Cyber Age may be a revolution of historic proportions” and thus the court should proceed cautiously. Still, the North Carolina law was not sufficiently narrowly tailored to survive First Amendment scrutiny because it bars those on the sex offender registry from “vast realms of human thought and knowledge.” He stresses that the states may be able to enact more specific, narrowly tailored laws that prohibit a sex offender from “engaging in conduct that presages a sexual crime,” such as contacting a minor or using a website to gather information about a minor.

Kennedy explains that Alito has filed an opinion concurring in the judgment, joined by Roberts and Thomas, and that Gorsuch did not participate.

Kennedy’s second opinion is in Ziglar v. Abbasi, about whether a so-called Bivens civil rights action is available to six people of Arab or South Asian descent detained after the Sept. 11, 2001, terrorist attacks who challenged the conditions of their confinement.

Kennedy’s opinion for a four-justice majority (out of six participating) holds that most of the Bivens actions brought by the detainees should not have been allowed to go forward.

“Judicial inquiry into the national security realm raises serious separation-of-powers concerns,” Kennedy says. He is joined in full by Roberts and Alito, and for the most part by Thomas. Sotomayor and Kagan did not participate for unspecified reasons of recusal, and Gorsuch did not participate because he was not on the court when the case was argued.

Breyer has written a dissent, joined by Ginsburg, which he will read from at some length from the bench. It is the first dissent from the bench in a term in which some were predicting we might not see any at all.

“The majority concludes that the plaintiffs cannot or may not be able to bring their suit, even if they prove their allegations and even if the defendants violated clearly established constitutional commands,” Breyer says. “Justice Ginsburg and I disagree. In our view, Bivens actions should continue to provide appropriate compensation for those deprived of important constitutional rights and in times of special national-security need.”

Breyer goes on for a good 15 minutes. Alito mostly looks down or out toward the crowded courtroom, as do the other justices.

“We understand the majority’s basic concern, namely that federal officials might hesitate in carrying out their security-related responsibilities if they fear future lawsuits for damages with an attendant risk of judicial second-guessing of decisions,” Breyer says.

In time of war or national-security emergency, Bivens actions “may be particularly needed,” he adds. “History warns of the risk to liberty in times of national crisis.” He cites the Alien and Sedition Acts, the suppression of civil liberties during World War I, and the internment during World War II of “70,000 American citizens of Japanese origin.”

While the majority points to suits for injunctive relief that may be brought to challenge government overreach, those are filed during national emergencies when the courts may be hesitant to interfere. “A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available,” Breyer says.

He closes by citing Lord Atkins, a British judge who wrote during World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

“The court should say the same here,” Breyer concludes.

With that, the chief justice signals to Clerk of the Court Scott Harris to begin today’s bar admissions. They are the last scheduled bar admissions of the term, and they include groups from the U.S. Department of Justice, George Washington University Law School, and Georgetown University Law Center.

Once the new Supreme Court Bar members are sworn in, Marshal Pamela Talkin bangs her gavel and announces that the court will return to the bench on Thursday.

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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