Arguments: Week of January 16, 2018

With only two argument days this week, the Court will hear argument in four, quite different cases with issues ranging from arcane civil procedure questions to whether a capital defendant’s lawyer can, in the hopes of avoiding a death sentence, effectively concede guilt against the defendant’s express objection.

The death penalty case is McCoy v. Louisiana, which the Court will hear on Wednesday, January 17, 2018.  The state of Louisiana tried McCoy in 2011 on three counts of first-degree murder for the 2008 murders of Christine and Willie Young – the mother and stepfather of McCoy’s estranged wife, Yolanda – and Gregory Colston, Yolanda’s son. McCoy maintained his innocence, but his lawyer conceded McCoy’s guilt in an unsuccessful attempt to prevent a death penalty sentence. The New York Times has an analysis of the case and its history.

The Washington Post also discusses the case, including quotes from Lawrence J. Fox, a visiting lecturer at Yale Law School who filed a brief on McCoy’s behalf. Fox notes that, “[t]he decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense — a right that personally belongs to the accused.” For similar reasons, the libertarian Cato Institute wrote in support of McCoy.

On Wednesday, the Court will also hear arguments in Encino Motorcars v. Navarro, which presents the question of whether service advisors at car dealerships are exempt from the Fair Labor Standards Act‘s overtime-pay requirements. Respondents sued the employer car dealership, seeking time-and-a-half overtime pay for working more than 40 hours per week. The FLSA exempts from its overtime requirements “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” 29 U.S.C. §213(b)(10)(A). The Ninth Circuit found Respondents non-exempt under a 2011 Department of Labor regulation. The Supreme Court vacated that decision, holding that the Department’s 2011 regulation should not control. The Ninth Circuit again found Respondents non-exempt on remand. The Ninth Circuit also acknowledged again that its holding conflicts with published decisions of the numerous courts, including the Supreme Court of Montana and the Fourth and Fifth Circuits. Bloomberg Law’s Big Law Business predicts that the case could be a harbinger of how the Court interprets exemptions in the future and may implicate some tensions among the Justices over deference to agencies.

On Tuesday, January 16, 2018, the Court will hear arguments for Dalmazzi v. United States and Hall v. Hall. In Dalmazzi (consolidated with Ortiz v. United States and Cox v. United States), the Court will consider whether a military judge is statutorily or constitutionally precluded from serving on a military Court of Criminal Appeals while  simultaneously serving an appointment to the United States Court of Military Commission Review.

Petitioner Nicole A. Dalmazzi was convicted by a military judge of wrongfully using Ecstasy, a Schedule I, controlled substance by. The US Air Force Court of Criminal Appeals (“CCA”) affirmed the findings and sentence of Dalmazzi’s dismissal and confinement for one month. Colonel Martin T. Mitchell participated as a judge on the CCA panel while also appointed as a judge to the United States Court of Military Commission Review (“CMCR”), a statutorily created entity that hears appeals from military commissions.

Dalmazzi moved the CCA to vacate the decisions in her case, on the grounds that Mitchell’s dual position on the CCA and the CMCR violated statutory and constitutional prohibitions on dual-officeholding, specifically 10 U.S.C. §973(b), a Civil War-era dual officership ban, and the Appointments Clause of Article II of the Constitution. Before the CCA ruled on that motion, Dalmazzi filed a petition for a grant of review with the Court of Appeals for the Armed Forces (“CAAF”). The CAAF vacated and then denied Dalmazzi’s petition for grant of review as moot; though Judge Mitchell had been confirmed to the CMCR by the Senate, President Obama did not sign his commission until after the CCA had issued its decision in Dalmazzi’s court-martial. Petitioners thus challenge Dalmazzi’s conviction and also ask the Court to consider whether the CAAF erred in finding the claim moot, arguing that §973(b) is triggered once a military officer “holds” or “exercises the functions of” a civil office; even though his commission was not yet signed by the President, he was still exercising the functions of a CMCR judgeship when the CCA sentenced Dalmazzi.

In addition to considering whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the CCA, the Court must also consider the threshold question of whether it has jurisdiction to review this type of case in the first place. The United States argues that while federal law does allow the Supreme Court to review decisions of the CAAF in certain situations, the governing statute, 28 U.S.C. §1259(3), only allows review of cases in which the CAAF grants a petition for review. Because the CAAF vacated its order granting review of Dalmazzi’s petition and then denied the petition for review as moot, the CAAF did not grant the petition for review and the the government argues that Court does not have jurisdiction to review the decision. Petitioners argue that this interpretation would allow the CAAF to insulate decision from review by the Supreme Court by simply vacating the grant of the review at the end of a decision.

The only amicus brief in this case was filed by Aditya Bamzai, a professor at the University of Virginia School of Law. He argues that the Supreme Court does not have jurisdiction to review decisions from the CAAF because, though called a “court” by statute, it is an entity of the Executive Branch; citing Marbury v. Madison, Bamzai argues that the Court does not have Article III appellate jurisdiction over a body of the Executive Branch. In a very unusual move, the Court granted Bamzai’s motion to participate in oral argument, and will allow him ten minutes to outline his position.

In its second case on Tuesday, Hall v. Hall, the Court will considers whether the holding in Gelboim v. Bank of America, a 2015 case concerning jurisdiction in multidistrict consolidated cases, should be applied in the same way to single-district consolidated cases. In Gelboim, the Court unanimously held that when a district court dismisses the only claim in a case that is consolidated with other actions for pretrial proceedings in multidistrict litigation, the dismissal acts as a final, appealable order, even if not all other claims in the multidistrict litigation had been resolved. Here, the Court must determine whether, in a single-district consolidated case, the entry of a final judgment in one case makes that case immediately appealable, even if other cases are still pending in the same district.

The dispute initially started when the elderly Ethlyn Hall, both in her individual capacity and as a trustee of her inter vivos trust,  filed suit against her son, Samuel Hall, who was acting as her attorney, after she became displeased with his management of property in the U.S. Virgin Islands. Ethlyn moved to Florida to live near her daughter Elsa. After Ethlyn died while the case was pending, Elsa took her place as plaintiff as the representative of Ethlyn’s estate. Samuel then filed suit against Elsa for a variety of causes of action, including intentional infliction of emotional distress allegedly caused by Elsa turning Ethlyn against him. The District Court of the Virgin Islands consolidated the cases pursuant to Federal Rule of Civil Procedure 42(a)(2), which allows the consolidation of cases with “common questions of law or fact.” A jury rejected the estate’s claims, and awarded Samuel $2 million dollars in compensatory and punitive damages against Elsa. The district court entered separate judgments for each action and ordered a new trial for Samuel’s claims against Elsa, after finding the jury might have relied on a legally untenable basis for its finding. When Elsa appealed the judgment regarding the estate’s claims against Samuel to the Third Circuit, the court dismissed her appeal, as a final judgment had not been entered in the retrial for Samuel’s case against her. The Third Circuit emphasized that the circuit does “not employ a bright line rule and instead consider[s] on a case-by-case basis whether a less-than-complete judgment is appealable.”

Elsa, the petitioner in this case, argues that the case-by-case approach employed by the Third Circuit is too uncertain and increases the risk of having an appeal dismissed as untimely if an appellant must wait until all other consolidated cases have been resolved. The petitioner also cites 28 U.S.C. §1291, which provides that a court of appeals “shall” have jurisdiction over a final judgment of a district court. Petitioner argues that this is mandatory language, and the Third Circuit erred in concluding it did not have jurisdiction because of the pending case.

Respondent Samuel argues that, because the cases were consolidated pursuant to Rule 42(a)(2), they should be considered substantively and procedurally unitary, and that the text of Rule 42(a) “indicates that fully consolidated actions formally become a single case.” As such, Samuel argues that fully consolidated cases should be treated the same way as multiple claim actions – “as a single ‘judicial unit’ appealable only when all claims are decided.”

This post was drafted by ISCOTUS Fellows Bridget Flynn and Elisabeth Hieber, both Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Oral Arguments Review: Week of January 8, 2018

Last week’s Supreme Court arguments featured the Fourth Amendment, voting rights, and disputes between states over water. On Monday, the Court heard arguments about two Fourth Amendment cases involving vehicles. First, the Court heard Byrd v. United States in which the issue was whether, under the Fourth Amendment, the driver of a rental car whose name is not on the rental agreement but has permission of the renter has a reasonable expectation of privacy. Byrd argued that a rental car agreement is not determinative of the scope of a driver’s constitutional rights. And as the American Civil Liberties Union argues in an amicus brief it submitted with the National Association of Criminal Defense Lawyers, the government’s position that drivers unauthorized by the rental car companies have no Fourth Amendment rights would have a disproportionate effect on black and Hispanic drivers, who are more likely to rent cars than white people.  The New York Times reports on that brief and other arguments.

As The New York Times also reports, during oral argument, however, Justice Kennedy described how Byrd waited outside of the rental facility while his girlfriend signed the agreement. Justice Kennedy said that it seemed as though he didn’t want to have his name on the rental agreement even though it appeared as though he would be the only one driving the rental car.

In the other Fourth Amendment case, Collins v. Virginia, the Court was asked to consider the scope of the Fourth Amendment’s “automobile exception,” which allows a police officer to search a vehicle without first getting a warrant to do so if the evidence of criminal activity could be removed from the premises because of the vehicle’s mobility. Collins argued that the automobile exception should not apply when the vehicle is parked in the “curtilage,” nor area surrounding the home. predicted that a win for Virginia in this case “could dramatically curtail the protections of the Fourth Amendment. And notes, unsurprisingly, that “several justices seemed skeptical of Virginia’s reasoning.” The justices may not reach the underlying issue, however, Towards the end, the attorney representing Virginia admitted that the intermediate state appellate court decided the case on the grounds that there were exigent circumstances. In response, Justice Ginsburg said that the Virginia Supreme Court had not addressed this question, and so the Supreme Court might have to remand the case because they could not take on that issue.

In the first water rights case of the week, Texas v. New Mexico and Colorado, the Court heard oral arguments over a dispute about water allocation from the Elephant Butte Reservoir between Texas, and New Mexico and Colorado. Governed by the language of Rio Grande Compact, the states must adhere to the specific language of all signatories of the document, of which the federal government is not included. The specific issue before the Court had to do with whether the federal government can nonetheless intervene in the lawsuit.

National Public Radio affiliate KUNM broke down the history of this case and recounted this week’s oral argument. Aside from the question of federal intervention, this case has much history behind it; from Western water rights to “the role Reclamation plays in both Texas and New Mexico.” KUNM notes that the stake are high. New Mexico “has already spent $15 million on staff and legal fees. And if the Supreme Court decides in favor of Texas, New Mexico could owe a billion dollars or more in damages and be forced to curtail groundwater pumping…”

In its second water rights case of the week, the Court heard arguments in Florida v. Georgia. This case involves Florida suing the state of Georgia over their consumption of water in the Apalachicola-Chattahoochee-Flint basin. Florida argues that the Army Corps of Engineers, which controls several federal dams flowing into the basin, should allocate more water to Florida to assist freshwater fisherman in preventing droughts, thus hurting business.

The special master–appointed by the Supreme Court, tasked to study water allocation among the rivers that flow into the basin–concluded that Florida was hurt by not having enough water but did not have enough evidence to prove that water reallocation from Georgia would alleviate the issue. During oral arguments, the Washington Post reports, Justice Kagan seemed sympathetic to this conclusion this claim,  stating to the lawyer representing Florida that “there seems to be a real dearth of record evidence specifically quantifying how much more water you would have gotten, exactly what benefits would have followed from that.” On the other hand, Chief Justice Roberts commented that a ruling for Florida will help build a case as to why the state should be allocated more water. However, the looming question before the Court and both states is the gauntlet of federal statutes and congressional mandates that the Corps must obey to meet its obligations as the de facto managers of water allocation for the basin.

Finally, on Wednesday, the Court heard oral arguments in Husted v. A. Philip Randolph Institute, which addresses the merits of an Ohio law that removes voters from the rolls. We’ll cover that argument in more detail in a separate post.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Martin Luther King Jr., the Law, and the Courts

In honor of Martin Luther King Jr Day, we are reposting this essay by ISCOTUS Co-Director Christopher W. Schmidt.

Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

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King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

Law as an Obstacle to Racial Justice

Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”

In this particular case, King might have won in the court of public opinion and certainly in the court of history, but he lost in the highest court of the land. When the Supreme Court finally decided to hear an appeal of the conviction of civil rights protesters for violating a state court injunction ordering them to refrain from demonstrating, the Court ruled 5-4 against the civil rights protesters. King and his cause generally fared well before the Supreme Court, but this case was one of a handful of exceptions. Justice Stewart, writing for the Court, reprimanded the protesters in Walker v. Birmingham:

This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

For King, unjust laws—and the courts that enforced them—were obstacles in the cause of racial justice.

Law as an Opportunity for Advancing Racial Justice

And then there were the laws that King and other civil rights activists wanted: school desegregation orders; non-discrimination requirements for restaurants, hotels, and private employers; voting rights protections. King’s attitude toward these kinds of civil rights laws is also quite interesting.

King understood court decisions and legal reform as a central component of broader political and social struggle. Although he certainly saw the importance of courtroom decisions and legislation, when he talked about the power of law, he tended to focus on the difficult work required to give life to basic legal principles. Judicial and legislative breakthroughs were not just moments for celebration. They were calls to action.

King’s sometimes tense relationship with civil rights lawyers helped shape his attitude toward the law. From the start of his civil rights career, King recognized his debt to the civil rights lawyers. In December 1955, on the eve of the Montgomery bus boycott that first brought him to the nation’s attention, he gave a passionate speech in which he framed boycotters’ cause as building on the long work of civil rights lawyers, particularly the dramatic NAACP victory in Brown the year before. “If we are wrong,” he declared, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Furthermore, civil rights lawyers played a critical role in the eventual triumph of the boycott. The boycott was teetering on the brink of failure, faced with a potentially crippling legal challenge to the carpool system on which the boycotters relied, when news arrived that the Supreme Court had struck down the segregated bus system as unconstitutional.

Yet King also sought to distance himself from the NAACP and its litigation-based tactics. There was an element of inter-organizational rivalry at play here—King’s SCLC competed with the NAACP for attention and funds. There was also an element of a generational divide at play, as King became more closely aligned with the younger element of the movement that was committed to direct-action protest and lashed out against the legalistic tactics favored by the older civil rights activists.

The work of lawyers was important, King stressed, but it must not dominate the energy of the movement. Direct-action protest was both an extension of, and an alternative to, the NAACP’s project of school desegregation litigation, which by the late 1950s had largely stalled in the face of obstructionist legal maneuverings. A new wave of civil rights protest emerged, sparked by the student lunch counter protests of 1960 and motivated in large part by frustration with the slowness of legal reform. To understand what drove African Americans to take to the streets to demand their rights, King explained, “[o]ne must understand the pendulum swing between the elation that arose when the [school desegregation] edict was handed down and the despair that followed the failure to bring it to life.” He critiqued what he saw as an overly idealistic vision of the law that the NAACP lawyers relied upon in making their case for Brown. “When the United States Supreme Court handed down its historic desegregation decision in 1954, many of us, perhaps naively, thought that great and sweeping school integration would ensue.”

Injustice might find expression in unjust laws, but King emphasized that the roots of injustice are deeper. For King, the law by itself was limited in its ability to affect hearts and minds; to truly uproot entrenched patterns of inequality, one must acknowledge the limits of legal reform. African Americans “must not get involved in legalism [and] needless fights in lower courts,” King warned, for that was “exactly what the white man wants the Negro to do. Then he can draw out the fight.” This was the harsh lesson of Brown and massive resistance. “Our job now is implementation. . . . We must move on to mass action . . . in every community in the South, keeping in mind that civil disobedience to local laws is civil obedience to national laws.”

One of King’s contributions to the struggle for racial equality was his passionate skepticism toward the efficacy of legal change when it was unaccompanied by organized social action.

ISCOTUS Co-Director Christopher W. Schmidt is Professor of Law and Associate Dean for Faculty Development at IIT Chicago-Kent College of Law. His book, The Sit-Ins: Protest and Legal Change in the Civil Rights Era, is about to be published by the University of Chicago Press.

Spilling the Beans on Justice Alito

Like many of us, Justice Samuel Alito loves his coffee. In fact, he even has his own blend. In 2000, when he was a judge on the Third Circuit, his clerks decided to give him a surprise birthday present by getting a local coffee company, T.M. Ward Coffee, to come up with a special blend of coffee named after him: Judge Alito’s Bold Justice Blend Coffee.

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Then-Judge Alito used to regularly stop by the coffee shop, located in Newark, New Jersey, near his Third Circuit chambers, for a cup. He apparently also likes to give it as a gift; one Christmas he bought 44 pounds of beans his blend. The Alito blend is a mix of dark Papua New Guinea, Celebes Kalossi, Java, Italian roast and espresso beans. The company owner described it as “strong in the cup with some sweetness and a winey aftertaste.” One reporter found it ” strong and smooth, though packing a hidden punch that had an overcaffinated reporter wishing she’d shown some restraint.” For those who visit the coffee shop, just say “Give me an Alito” and you too can try a cup of the bold brew.

Conference Report: January 5, 2018 Conference

On Monday, the Supreme Court gave a death row inmate another chance to persuade the federal courts to consider whether his sentencing proceeding was infected with racial bias. The opinion in this case,  Tharpe v. Sellers, was issued as part of the Order List from the Court’s January 5, 2018 Conference. The Court did not otherwise add any new cases to its docket, although it did call for the views of the Solicitor General in three cases.

In Tharpe v. Sellers, a habeas corpus case, the Court remanded the case for further consideration of whether the petitioner is entitled to a certificate of appealability (COA). (Unlike most litigants, habeas petitioners who are challenging state court convictions or sentences can appeal only if they can make “a substantial showing of the denial of a constitutional right.”) As the ABA Journal reports, Keith Leroy Tharpe was convicted of the 1990 murder of Jaquelin Freeman during the commission of the kidnapping and rape of his estranged wife. He was sentenced to death in early 1991. According to the Washington Post, Tharpe was set to be executed in late September, but the Supreme Court issued a temporary stay based on a claim of racial bias by the jury. Monday’s opinion went further, citing a signed affidavit from seven years after Tharpe’s conviction in which a white juror made such statements as “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; and “[a]fter studying the Bible, I have wondered if black people even have souls.” The Court held that since the juror had never retracted the affidavit, there was a strong factual basis for the argument that Tharpe’s race affected the juror’s vote for the death penalty.

Justice Thomas dissented, joined by Justices Alito and Gorsuch. In the dissent, Justice Thomas questioned why the Court would engage in “this pointless exercise” stating that the remand will not stop Tharpe’s ultimate execution and instead only delays justice for Jaquelin Freeman. Justice Thomas noted  that the jury took only two hours to return a unanimous death sentence and pointed out that the juror in question signed a second affidavit in which he stated that he voted for the death penalty not because Tharpe was black, but because the evidence at trial justified the punishment and Tharpe showed no remorse. In addition, the second affidavit explained that the juror had been drinking when he signed the first affidavit and claimed that his statements had been taken out of context.

The majority and the dissent agree that it is unclear whether Tharpe will be able to clear the bar to receive a COA, despite the juror’s affidavit. But the majority still held that, based on the “unusual facts” of the case, the Eleventh Circuit should reconsider Tharpe’s request for a COA. CNN discusses the case here.

When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court is requesting that the Solicitor General file an amicus brief to explain the United States’ view on whether the case deserves review. This most often happens in cases where, although the United States is not directly involved as a party, federal interests are significantly affected or the federal government possesses particular expertise. More information about CVSGs is available here.

In Dawson v. Steager, the question presented is whether the doctrine of intergovernmental tax immunity based on the precedent set in Davis v. Michigan Department of Treasury (1989) bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees based on the source of their retirement income. The precedent set in Davis was that a state can tax federal employees’ income only “if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation” – meaning that unless there is a significant difference between the state’s employees and federal employees, there can be no differentiation in tax exemption status.

In this case, James Dawson was a U.S. Marshal when he retired from the U.S. Marshal Service in 2008.  Under West Virginia law, Mr. Dawson should be able to exempt a portion of his retirement benefits from his state taxable income.  State law enforcement retirement recipients, however, are allowed to exempt all of the received benefits from their retirement plans from their taxable state income. The Dawsons have requested that the Supreme Court hear their case, and argue that West Virginia’s tax law discriminates against federal employees by favoring similarly situated state employees. The respondent in this case, State Tax Commissioner of West Virginia, Dale W. Steager, has argued that a Supreme Court review is unnecessary because the group of exempted state employees is so narrow that the state’s tax law does not discriminate against federal employees or provide state employees with a blanket exemption.

The question presented in Herrera v. Wyoming is whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest violated the Crow Tribe of Indians’ rights to hunt on the “unoccupied lands of the United States,” as established by federal treaty in 1868, thereby permitting the 2017 criminal conviction of a Crow member who engaged in subsistence hunting for his family.

In 1868, the Crow Tribe of Indians ceded to the United States most of their land (much of which was located in the present-day states of Wyoming and Montana) through the 1868 Treaty With The Crows. In exchange for the land, the 1868 Treaty created the Crow Indian Reservation along what is now Montana’s southern border and provided for payments, goods, and federal protection of the Crow Tribe members and remaining lands. Additionally, the 1868 Treaty provided that the Crow Tribe would have the right to “hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists [. . .] on the borders of the hunting districts.” In 1890, Wyoming became a state.  In 1891, Congress enacted the “Forest Reserve Act” which created the framework for the establishment of the National Forests. This Act provided that “nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes.”  In 1897, the Bighorn National Forest was created adjacent to the Crow Reservation on the Wyoming side of Montana’s southern border.

In 2014, Petitioner Clayvin Herrera and other members of the Crow Tribe were hunting on the Crow Reservation. While following a small herd of elk, the group crossed into the Bighorn National Forest. The group shot three elk and returned to the reservation with their kill. Mr. Herrera was subsequently tried and convicted of two crimes under Wyoming law for the unlawful hunting of elk in the National Forest. Mr. Herrera was prohibited from asserting the treaty right as a bar to prosecution, a decision which was affirmed by a Wyoming appellate court. These decisions were based on a 10th Circuit case from 1995, Crow Tribe of Indians v. Repsis, in which the court held that the “Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” 73 F.3d 982, 992 (10th Cir. 1995). The court continued by saying that the Creation of the Bighorn National Forest in 1897 “resulted in the ‘occupation’ of the land” and therefore also invalidated the Crow Tribe’s off-reservation hunting rights from the 1868 Treaty.

Mr. Herrera argues that Repsis was incorrectly decided by the Tenth Circuit, and that his rights – and the rights of other Native Americans who are bound by similar language in treaties with their tribes – were not abrogated either by the admission of Wyoming into the Union or by the creation of Bighorn National Forest. Wyoming, the respondent, asserts that the real issue is whether the doctrine of collateral estoppel, on which the lower courts relied, precludes Mr. Herrera from relitigating the Crow Tribe’s hunting rights within Wyoming. Wyoming also argues that the 1868 Treaty expired by its own accord and is in no way being abrogated by the State of Wyoming. Finally, Wyoming contends that the language in the 1868 Treaty is not widely replicated in other treaties with Native American tribes, so any decision will have limited precedential value.

The question presented in Fourth Estate Public Benefit Corp. v. is whether a copyright claim has been registered, within the meaning of 17 U.S.C. §411(a), when the copyright holder delivers the required application, deposit and fee to the Copyright Office, as the Fifth and Ninth Circuits have held; or if registration is made only once the Copyright Office acts on that application, as the Tenth and Eleventh Circuits have held.

Fourth Estate, an independent news organization, owns the copyrights to its journalists’ works and licenses them to AHN Feed Syndicate, a cloud-based news organization. AHN then takes the journalism from Fourth Estate and other content producers and licenses it to others. was a former licensee of AHN Feed Syndicate’s. Under the terms of the license, if Wall-Street canceled its account with AHN, it was to permanently remove and stop display of all AHN-provided content. However, after canceling it’s account with AHN, Wall-Street continued to distribute and copy 244 of Fourth Estate’s Works. Fourth Estate, which lost in the lower courts, argues that the Supreme Court should grant review to resolve the circuit split regarding when a copyright registration has been made; and further argues that this is a recurring question in most copyright infringement cases. Wall-Street contends that review is unwarranted both because Fourth Estate overstates the importance of the question presented, and because the 11th Circuit’s interpretation of 17 U.S.C §411(a) is correct – an infringement claim can only be made “once registration ‘has been made’ or ‘refused.’”

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

This Day in Supreme Court History—January 7, 1972

On this day in 1972, Lewis Powell and William Rehnquist were sworn in as the 99th and 100th members of the Supreme Court.

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They filled vacancies that had been created several months earlier when Justices Hugo Black and John Harlan retired. Both had fading health. Justice Black retired on September 17, 1971, and died just eight days later. Justice Harlan retired September 23, 1971; he died December 29, 1971.

President Richard Nixon nominated both Rehnquist and Powell on October 22, 1971. Nixon, who in his 1968 presidential campaign had been sharply critical of the Warren Court, had already replaced Warren with Warren Burger as Chief Justice. After two failed nominations, he installed Harry Blackmun as an Associate Justice, taking the seat left vacant when Abe Fortas resigned from the Court in 1969.

At the time of their appointments, Powell was a past president of the American Bar Association and one of the country’s leading corporate lawyers; Rehnquist was serving as an Assistant Attorney General in the Office of Legal Counsel. The Senate easily confirmed Powell on December 6, 1971, by a vote of 89 to 1. Rehnquist faced more opposition, most of it focused on his record as an outspoken and dedicated conservative. His paper trail included memoranda he had written as a law clerk to Justice Robert Jackson in the early 1950s in which he expressed skepticism toward civil rights claims. He was eventually confirmed on December 10 by a vote of 68 to 26.

Since they were both confirmed on the same day, who assumed the role of the Court’s junior justice? When two Justices join the Court on the same day, seniority is determined by age. Chief Justice Burger first administered the judicial oath to Powell, who was 64; Rehnquist, at 47, went second, and thereby became the most junior justice on the Court.

Justice Powell also started a new Supreme Court tradition on the day of his confirmation. Prior to taking his oath, he sat in the chair that Chief Justice John Marshall had used, located in front of the bench, below the Clerk of the Court’s desk. All succeeding Court appointees have followed this practice.

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Professor Christopher Schmidt.

Arguments: Week of January 8, 2018

The Court begins 2018 with a full schedule of oral arguments on Monday, Tuesday, and Wednesday of next week. Among the most interesting arguments are an important voting rights case and two cases about Fourth Amendment searches involving vehicles.

The Fourth Amendment cases will both be argued on Tuesday. In Byrd v. United States, the Court will consider whether a driver has a reasonable expectation of privacy in a rental car when he has the permission of the renter to drive the car but is not listed as an authorized driver on the rental agreement. More specifically, the question is whether the driver can even claim that his Fourth Amendment rights were violated, based on a doctrine sometimes referred to as “Fourth Amendment standing.” Orin Kerr provides some background on the doctrine and suggests that perhaps the driver’s motives should be relevant:

If we take the fundamental issue to be whether the car was in a practical sense Byrd’s car, then I get different instincts depending on what Byrd was thinking. For example, if Byrd just happened to have borrowed Reed’s rental car, and it just never occurred to him whether the rental car company allowed that, then I can see the car as effectively Byrd’s and it makes sense that Byrd has standing. On the other hand, if Byrd persuaded Reed to rent the car for Byrd because he knew the rental car company wouldn’t rent to him given his criminal record, then it seems weird to see the car as effectively Byrd’s and quite odd to say he has standing.

Also on Tuesday, the Court will hear about the scope of “automobile exception” to the Fourth Amendment right to be protected against unreasonable searches and seizures . Under this exception, as the Court explained in Maryland v. Dyson, if “a car is readily mobile and probable cause exists that it contains contraband, the Fourth Amendment … permits the police to search the vehicle without” a warrant.  The issue in Collins v. Virginia is whether this exception allows a police officer who is not invited and does not have a warrant, to enter private property and search a vehicle that is parked a few feet from the house. Officers were trying to find a motorcycle driver who had been involved in two high speed chases, and were not able to identify the driver visually because his helmet, and ran into Collins at the DMV a few months after the incidents in question. Suspecting Collins, the officers located his residence and saw a motorcycle covered in a tarp parked behind a car on his driveway. One of the officers then entered Collins’ property, without permission or a warrant, removed the tarp, and ran the licence plate of the motorcycle. It was flagged as stolen, so the officer arrested Collins for receiving stolen goods. Collins argues that the trespass was an unconstitutional search, but Virginia Supreme Court held that the officer’s conduct was lawful. A brief submitted by the United States Justice Foundation in support of Collins argues that the automobile exception did not apply to the facts in this case because the officer had no reason to believe that the motorcycle was stolen when he trespassed onto the property. However, Virginia claims that the motorcycle was “readily mobile, parked in a driveway with easy access to the street” and therefore the automobile exception should still apply in this case. Cornell Law Professor Sherry Colb discusses the law — and the odd facts — of the case here.

On Wednesday the Court will hear Husted v. Randolph Institute, which addresses the legality an Ohio law that purges voters from the voting polls if they do not confirm their address. The law allows the Ohio Secretary of State to send postcards to voters who have not voted within the past two years, asking them to confirm their address. The Secretary of State may purge a voter from the list if that voter fails to fill out of the postcard and send it back. The A. Philip Randolph Institute – named after the civil rights activist – among other groups like the ACLU and the Brennan Center for Justice, argues that the Ohio law violates the National Voting Rights Act (NVRA) and the Help America Vote Act (HAVA). Specifically, the NVRA states that an individual may not be removed as a voter “by reason of the person’s failure to vote.” Ohio argues that it is not purging voters because they aren’t voting, but because they aren’t filling out the postcards to indicate their address. The Economist highlights the issues in the case and notes that until the Trump Administration, the Department of Justice (DOJ) agreed with the challengers’ position on how to interpret the statutes at issue. Greg Stohr of Bloomberg showcased one Ohio voter, Larry Hammond, who deliberately chose not to vote in some elections but did not intend to give up his right to vote. Hammond intentionally sat out the 2012 and 2014 elections, but when he wanted to vote on a 2015 ballot measure on marijuana legalization, he discovered he had been purged from the voting rolls.

On Monday, the Court will hear arguments in two cases involving disputes between States over water rights, Texas v. New Mexico and Colorado and Florida v. Georgia. Because the cases involve litigation between states, the Court has original jurisdiction. As a practical matter, as Stephen Wermiel explained on SCOTUSblog, original cases are referred to a special master, who holds a trial and writes a report to the Court. In Texas v. New Mexico the Court will hear oral arguments on the first of two water rights cases. The Court then essentially hears an appeal from that report. The water rights cases tend to be complex and technical. SCOTUSblog summarizes the issues in Texas v. New Mexico and Colorado here and in Florida v. Georgia here.

This post was drafted by ISCOTUS Fellows Zoe Arthurson-McColl and Michael Halpin, both Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Justice Marshall and Judge Mikva: Justice Kagan Reminisces

Justice Elena Kagan clerked for two legal legends after she graduated from law school, First, she clerked for Judge Abner Mikva of the United States Court of Appeals for the District of Columbia, and she then went on to clerk for Justice Thurgood Marshall on the United States Supreme Court. During her visit to Chicago-Kent College of Law in October, Justice Kagan talked about those experiences. She noted that Judge Mikva worked in top positions in all three branches of government — before he was a judge, he was a Member of Congress from the Chicago area and he went on to be White House Counsel during the Clinton Administration. Clerking for Judge Mikva. Because of Judge Mikva’s “subtle and penetrating understanding” about government, Kagan herself became “very intrigued by” government and the way it operates. Moreover, she was exposed to fascinating cases because on the D.C. Circuit, where Mikva sat, “the most important cases are about the way government operates.” Personally, Justice Kagan continued, Judge Mikva, was “a wonderful human being” who taught her about the importance of finding good mentors, and she has tried to be a good mentor herself.

When Justice Kagan discussed her time clerking for Justice Marshall, she called him the “the greatest lawyer of the 20th century.” She described him as “just an extraordinary lawyer,” who “decade in and decade out” worked to advance justice. Justice Kagan not only sang his praises in the legal arena but also highlighted his incredible storytelling ability — he could “make you laugh [and] make you cry” in the same story. Justice Kagan noted that she clerked for Justice Marshall toward the end of his career when he was taking stock of his time on the Court which added to it being “an extraordinary experience.” It gave her a “window into some of the most important parts of twentieth century history.”

Justice Kagan has written and spoken about her time with Justice Marshall elsewhere as well. Marshall nicknamed Justice Kagan (who is 5’3”) “Shorty” and “Little Bits.” Marshall stood at 6’2”. Marshall also once called Justice Kagan a “knucklehead,” (a term he frequently called his clerks) when he tasked her with writing a dissent and she told him it would be difficult to find a legal basis to find in favor of the party that he wanted to support.

At the time of Kagan’s clerkship in 1988, the Supreme Court, under Chief Justice Rehnquist’s leadership, was becoming increasingly conservative, so Marshall was “looking for really bright people to kind of put a new charge in him” Marshall biographer Juan Williams was quoted as saying in the New York Times. But that did not mean that Justice Kagan was a clone of Justice Marshall. Indeed, during her 2009 Solicitor General confirmation hearing and later in her 2010 Supreme Court confirmation hearings, Justice Kagan explained that the writings she produced for Marshall reflected her efforts “channel” Justice Marshall. In the latter hearings, she said:

“When I was clerking for Justice Marshall, I was 27 years old, and Justice Marshall was an 80-year-old icon, a lion of the law. … The role of the clerks was to channel Justice Marshall to try to figure out whether Justice Marshall would want to take a case, whether Justice Marshall would think that the case is an appropriate one, and that’s what I did.…I love Justice Marshall; he did an enormous amount for me. If you confirm me you will get Justice Kagan.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Oral Arguments Review: Week of December 4, 2017

On Tuesday, the Supreme Court heard oral argument in one of the biggest cases of the Term: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In this case, a baker who makes custom wedding cakes refused to provide a cake for a same-sex couple celebrating their marriage. The Colorado Civil Rights Commission found that he had violated the state’s anti-discrimination law. The baker appealed to the Supreme Court, alleging that he was forced to engage in “compelled speech” and that his free exercise of his religion was improperly burdened, both in violation of the First Amendment.

The argument, which lasted almost 90 minutes, involved extensive discussion about the scope of the right that the baker was claiming. To the extent that he claimed to be engaging in expressive conduct, Justice Kagan pressed his attorney about whether make-up artists, hair stylists, chefs, and florists would also be covered by his theory. Surprisingly to many, including Justice Breyer, when Justice Alito asked whether architectural design was expression protected by the First Amendment, the baker’s lawyer said no. The Justices and attorneys also discussed whether race discrimination could be justified on religious or free expression grounds, a position that both the baker’s attorney and the United States government, which appeared to support the baker, attempted to distinguish.

There has been an enormous amount of commentary about this case and the argument. David Savage of the Los Angeles Times explains why a 1990 majority opinion written by Justice Scalia, Employment Division, Department of Human Resources v. Smith, makes the free exercise of religion claim particularly challenging for the baker. (In Smith the Court held that there are generally no free-exercise exemptions from compliance with generally applicable laws.) A video of a “spirited” debate between the Cato Institute’s Ilya Shapiro and the NAACP Legal Defense and Educational Fund’s John Paul Schnapper-Casteras can be found here. Shapiro and Schnapper-Casteras filed amicus briefs on opposite sides of the case on behalf of their respective organizations. Commentary from the National Catholic Register is here and from Craig Konnoth, a University of Colorado law professor, here.

Another high-profile case was argued on Monday, December 4. Christie v. National Collegiate Athletic Association, as ISCOTUSnow explained last week, the key issue involves Congress’s ability to prevent states from deregulating sports gambling. Ilya Somin argued in a piece entitled “Place Your Bets on Federalism,” at the Washington Post’s Volokh Conspiracy that the argument went well for New Jersey, which wanted to legalize some gambling. And the sports media also continues to cover the case. CNN reports here, noting that Governor Chris Christie himself sat in the front row during the argument.

Audio and transcripts arguments in Christie, Masterpiece Cakeshop, and the other, less high-profile cases from last week —Rubin v. Islamic Republic of Iran, Murphy v. Smith,  and Marinello v. United States — can be found Descriptions of these cases can be found here.

Will The Supreme Court Review SEC’s In-House Judges?

By Harold J. Krent, Dean and Professor of Law, IIT Chicago-Kent College of Law in Chicago.

This post is an abridged version of an article first published at Law360.

Challenges to appointment of U.S. Securities and Exchange Commission administrative law judges (ALJs) have spread across the country. Private parties that have lost on the merits before the SEC have then challenged the legitimacy of those proceedings by asserting that SEC ALJs, as inferior officers, should have been appointed by SEC commissioners instead of by the chief ALJ. Article II of the Constitution provides that inferior officers of the United States can only be appointed by the president, courts of law, or heads of departments, and the SEC conceded that, if the ALJs are deemed inferior officers, then the appointments were invalid.

Article II vests the appointment power in presidents to permit them influence over the vast amount of authority delegated by Congress to agencies in the executive branch. The president has the power to appoint principal officers such as SEC commissioners, and all inferior officers within the agency must be appointed either by the president or the SEC commissioners themselves. In contrast, presidents need not appoint employees because they do not exercise significant authority under the laws of the United States. The appointments clause thereby promotes political accountability.

I, along with others, confidently predicted — at least until last week — that the U.S. Supreme Court would grant certiorari to resolve the split in the federal circuit courts over whether federal ALJs should be considered inferior officers or employees under Article II of the Constitution. Resolving the Article II issue has ramifications for many federal agencies whose appointment of ALJs have not conformed to the appointments clause. The Social Security Administration, for example, employs over 1,400 ALJs. As a practical matter, the ongoing appointments challenges have cast a pall over a wide swathe of current administrative proceedings before federal ALJs.

Review by the Supreme Court seemed likely for another reason. A second and more important question raised by the cases is whether ALJs, if deemed inferior officers, can be protected from “at will” removal in independent agencies such as the SEC and SSA. In an analogous context, the Supreme Court in Free Enterprise Fund held that inferior officers in independent agencies cannot be protected by a “for cause” removal standard because two layers of “for cause” insulation from the president’s removal authority creates an attenuated chain of accountability to the president.  ALJs, however, currently can only be removed for “cause.”

Nevertheless, ALJs arguably need protection from at-will removal in order to assure private entities contesting government action that decision makers in their cases enjoy a measure of independence. Our administrative system of adjudication, in other words, largely turns on a promise of independence at least at the level of the front-line adjudicator, even if not from the agency itself. The agency inherently is political, but not the front-line adjudicator whose factual findings remain in the record no matter what the agency decides and can influence subsequent judicial review. The court may well be tempted to craft a rule that limits Free Exercise Fund, possibly on the ground that the president need not have as close supervision over officers exercising routine adjudicative as opposed to administrative functions. The path toward certiorari seemed clear.

This past week, the U.S. Department of Justice changed course and disavowed the SEC’s earlier position that its ALJs should be considered employees. But, in a surprise twist, the DOJ asked the court nonetheless to grant certiorari.

What will the court do? On one hand, although the case appears moot, perhaps the court can entertain jurisdiction because the parties might still disagree as to the remedy — can the properly appointed ALJ ratify what he had determined earlier without holding yet another hearing. The SEC has not yet stated whether the ALJs have to rehear the cases previously decided, so it seems a stretch for the court to take the case on that basis. And, even if the court accepts the DOJ’s invitation to grant certiorari, the parties are not adverse with respect to the two key issues — the private parties and the SEC now agree 1) that ALJs are inferior officers, and 2) neither side has weighed in on the removal question. At the end of the day, DOJ’s call for review now may be enticing, but traditional principles of restraint likely will result in a denial.