Weekly Roundup, October 2, 2015

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Oyez has a new and improved look!  Allie Bernstein tells us all about it.

ISCOTUS Director Christopher Schmidt gets to the bottom of Justice Scalia’s widely noted comment about his “four colleagues” who were ready to strike down the death penalty.  (He was misquoted.)

Richard Hasen explains how “the future composition of the Supreme Court is the most important civil rights cause of our time.”

The New York Times laid out the events in the timeline of Oklahoma death row inmate Richard Glossip, whose execution is now scheduled on November 6. The Supreme Court, which last term rejected Glossip’s challenge to Oklahoma’s method of execution, has refused to intervene.

Orin Kerr imagines what a confirmation hearing in 2035 will look like.  (Hint: It’s all about tweets and Facebook friendship.)

The New York Times had an obituary for Doug Kendall, founder of the Constitutional Accountability Center and a vocal critic of the Supreme Court’s conservatives.  Randy Barnett praised Kendall as “a true gentleman who loved the Constitution.”

Oyez: New and Improved

This is a guest post from our friends at Oyez, a digital multimedia archive of the U.S. Supreme Court.

Just in time for the start of the October Term 2015, we here at Oyez are proud to unveil a brand new version of our website. Not only does it look much cleaner, it is easier to navigate, find, and discover the treasures of our content.

Some new features include:

  • An improved audio player. The player opens quickly (no more loading bar) and the features are improved as well. The bench of justices who heard the case are pictured at the top, and whenever a justice speaks, that justice’s image will light up on the player. The audio has also been directionalized, so it sounds like the justice is speaking from their place on the bench. The search functionality is cleaner, and we’ve made it easier to clip, download, and share from our player.
  • Cleaner visuals. The site is much more intuitive to navigate and easier to understand. In addition, each case page features a larger visual array of the justices’ vote breakdown and short explanations for every decision made in the case. (For an impressive example of this feature, check out the 12 decisions in McConnell v. FEC!)
  • The introduction of the Oyez email list. Want to be in the know when it comes to the workings of the Supreme Court or Oyez’s latest content? Simply subscribe, and you’ll get the inside scoop.
  • In addition to the email list, you can easily see new ways to find Oyez around the web. On the top left of every page of the site, you’ll find links not just to our Facebook and Twitter, you’ll find the podcast of each recent Term’s arguments as well as a link to help support Oyez’s work.
  • Responsive design. No matter where you look at Oyez, be it on your phone, tablet, or computer, Oyez’s screen will fit yours.

We have many more features that are currently in the works. Many of the justices already feature improved biographies, and the rest are on their way. Short case descriptions pop up for many of our most popular cases, and more are being written every day. And, as many users have requested, we’ll be bringing back the ability to search by topic.

The transition may cause some problems, so don’t hesitate to let us know if you come across any issues. We’re already working on building a bridge to reconnect the site with the ISCOTUSnow and Pocket Justice apps. We’ve also discovered that cases pre-1900 without a docket number are having trouble making the URL switch. If you’re linking to a specific case page that isn’t working, you can simply search for the case on the site instead.

Thank you to all of our audience who gave us feedback during the beta phase of the website, and to everyone who uses our content. Oyez wouldn’t exist without you!

Scalia, the Court, and the End of the Death Penalty

Justice Scalia made news last week for his remarks during an appearance at Rhodes College.  In addition to expressing in his characteristically blunt way his frustration with the Court’s same-sex marriage opinion from last term, he predicted that the Court was on its way to striking down the death penalty.  The prediction got a good deal of attention, with death penalty opponents hoping that Justice Scalia’s predictive powers proved as accurate in this case as they did when he predicted over a decade ago the demise of prohibitions on same-sex marriage.  

Scalia, according to widely noted tweets by Jennifer Pignolet of the Memphis Commercial Appeal, who was covering the Justice’s speech, also suggested that four of his colleagues were ready to strike down the death penalty.  This nugget of information sparked a flurry of speculation in the Court-watching community.  Who were these four justices?  Justice Breyer wrote a dissenting in last terms’ review of Oklahoma’s lethal injection protocol, Glossip v. Gross, in which he argued at length for why he believed the death penalty may violate the Eighth Amendment’s prohibition on “cruel and unusual punishment.”  But only Justice Ginsburg signed on this opinion.  So where does Scalia get his four from?  Justices Sotomayor and Kagan dissented in Glossip, and they expressed concerns with the administration of the death penalty in Oklahoma and elsewhere, but they chose not to join Breyer’s bombshell opinion.  Might Scalia be assuming that Justice Kennedy could be leaning in this direction?  His jurisprudence, well on display in his same-sex marriage opinion, would seem to make him open to the kinds of arguments death penalty opponents offer, and he has written several major opinions on the death penalty and other Eighth Amendment issues.  Regardless of who exactly Scalia might be been talking about, why was he even talking about where other justices were on this issue if they had not chosen to lay out their position in a Court opinion?  Scalia’s comments appeared to a violate a basic tenet of Supreme Court judicial ethics: the justices are not supposed to talk about what happens behind the scenes at the Court.

In the end, this was a bunch of sound and fury over nothing.  Scalia did not say that four of his current colleagues are ready to strike down the death penalty.  What he said, as Pignolet of the Commercial Appeal reported in a follow-up article, was the following: “I sat with three colleagues who thought the death penalty is unconstitutional … I sat with three colleagues, and there is now a fourth — Justice Breyer has announced that he thinks the death penalty is unconstitutional.”  This quotation clearly indicates that Scalia was looking backwards in time, to colleagues he sat with, not to his colleagues on the current Court.  He was not talking about Sotomayor or Kagan or Kennedy.  He was talking about William Brennan, Thurgood Marshall, and Harry Blackmun, each of whom denounced the death penalty as unconstitutional while sitting on the Court.  In talking about his four anti-death penalty colleagues, Scalia was not saying anything we didn’t already know.

The moral of the story?  Tweets are a lousy way to get our coverage of public events.  This is particularly true when the source is someone who is not a regular reporter on the law or the Supreme Court.  And this misreported story would never have happened if Justice Scalia allowed recordings of his remarks.  One sure outcome of all this is that it will only reinforce the Justice’s already low opinion of press coverage of his work.

Weekly Roundup, September 25, 2015

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In anticipation of Pope Francis’ visit, the National Law Journal wrote about the times the Pope has been mentioned in Supreme Court cases over the last sixty years.

Noah Feldman wrote about Chief Justice Roberts’ lonely position on Bloomberg View: “Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It’s admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it’s unenviable because, in an era of activism, it wins you nothing but enemies on both sides.”

“You should be upset because [the Supreme Court Justices] are making a new Constitution and they are terribly unrepresentative of the country,” Justice Scalia said on Tuesday at Rhodes College.  Scalia also predicted the Court would strike down the death penalty.

The Economist reports that  Apple intends to ask the Supreme Court to review a ruling by a federal appeals court regarding their entry into e-book sales in 2010.

A Reuters analysis indicated that state supreme court “Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed.”

Remembering Yogi Berra (and Earl Warren)

On April 5, 1979, the New York Times ran on its Op-Ed page a piece by Yale Law Professor Robert Cover titled “Your Law-Baseball Quiz.” Each of the six questions began with the name of a Supreme Court Justice, followed by a list of four Major League Baseball players. The object of the quiz was to “identify the baseball player who bears the same relationship to baseball as the justice bears to law.” The justice for the first question was Chief Justice Earl Warren; the correct ballplayer answer was longtime Yankee catcher Yogi Berra. (Berra died yesterday at age 90.)

Here is Cover’s perfect explanation:

Both Warren and Berra were enormously effective performers on teams with many stars. Despite the presence of players such as Mantle, Maris, Frankfurter, Douglas and Black in the same lineup—all of whom appeared to have a more elegant swing or style—Berra and Warren were the truly most valuable players. Both would frequently swing at bad pitches, but both were capable of hitting them for extra bases, especially in the clutch. Both saw through excessive thought to the true essence of their game:

“Theorists beset us with other definitions of law . . . . But the idea of justice survives all such myopic views, for as Cicero said, ‘We are born to it,’” said Warren. Or as Yogi said more succinctly, “How can you think and hit at the same time?”

Justice Breyer’s New Book on the Controversy over Citing Foreign Law

Most of Justice Breyer’s newly released book, The Court and the World, deals with cases in which the Court is required to engage with foreign nations and foreign law.  These cases, Breyer writes, “show how routinely American interests extend beyond the water’s edge, obliging the Court, in turn, to extend its range of legal and practical reference beyond what has been its custom, in order to arrive at sound judgments.”  Only after a couple hundred pages on this issue, and then only in a brief chapter he labels a “Postscript,” does Breyer turn to the controversy over considering foreign law as aid in interpreting domestic law, particularly the Constitution.  Breyer seeks to distinguish this controversial issue from a discussion of the inevitable engagement of the Supreme Court with foreign law and practices.  “Although this argument has seemed to occupy the foreground in political discussions about the role of foreign law,” Breyer writes, “it turns out to prove relevant to only a small part of that role.”

So it is only with apparent reluctance that Breyer shifts his focus from those cases in which engagement with foreign law is unavoidable to those cases in which engagement is the product of a choice on the part of a justice.  He mentions Justice Kennedy’s reference to the U.S. “stand[ing] alone” in the world in its use of the death penalty against minors—a practice that the Court struck down in 2005 as a violation of the Eighth Amendment.   He also mentions Justice Kennedy’s references to foreign nations’ rejection of punishment for same-sex sodomy in Lawrence v. Texas.  These references to foreign law as a tool for interpreting the Constitution drew the criticism not only of the dissenters in these cases, but also of members of Congress, where there were efforts to pass legislation prohibiting this kind of use of foreign law.

Breyer offers a gentle rebuttal to these critics.  Referencing foreign law can serve as a tool that “can help judges produce better decisions without constraining their decisional autonomy,” he explains.  “Judicial decision making, particularly in the Supreme Court, is not a mechanical effort at applying clear legal rules to new factual situations.  The task is more appropriately seen as a kind of problem solving.” The experience and thoughts of others, including judges in foreign lands, may prove informative in that problem-solving task.  Furthermore, turning to foreign law as an aid in interpreting domestic law is nothing new in the American judiciary, a point Breyer supports by citing examples from throughout the twentieth century.

Breyer argues that when these controversial but relatively rare instances when the Court cites foreign law to support an interpretation of the Constitution are placed in the context of the real subject of Breyer’s book—cases involving treaties, the foreign reach of U.S. law, or questions of U.S. jurisdiction over foreign activity in which engagement with is unavoidable—they appear more routine.  The Court must regularly, by necessity, deal with foreign law.  It never has been and never can be a “hermetically sealed legal system.”  The heat of the debate over referencing foreign law dissipates once this fact is fully appreciated, Breyer contends.  

In concluding his “Postcript” on foreign citations, Breyer attempts to turn the tables on his critics.  Rather than worrying about protecting the sovereignty of the U.S. legal system from foreign influence, American jurists should be thinking about ways to spread the influence of American law to foreign legal systems.  Judges who acknowledge the work of foreign courts will be serving this cause.  Breyer thus frames his call for greater attention to foreign law on not only a cosmopolitan sensibility or intellectual generosity—values that are unlikely to move his critics—but also on national self interest.  The Court and the World offers a persuasive argument that, in an increasingly interdependent world American self interest, is served by a greater judicial understanding of foreign law.  Whether this same argument will persuade critics of references to foreign law in decisions involving the interpretation of the U.S. Constitution is another story, however.

Weekly Roundup, September 18, 2015

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Linda Greenhouse reviewed Sisters in Law, the story of Justices Sandra O’Connor and Ruth Ginsburg, for the New York Times.

The U.S. Supreme Court was an important subject In Wednesday night’s Republican presidential debates. According to Senator Lindsey Graham, “We have to win this election. The court’s at stake. It is the most important reason for us to turn out, to make sure we don’t lose the judiciary for decades to come.”

Although an appeal regarding Virginia’s solitary confinement policy is ripe for examination, the justices have to weigh “whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.”

The Cato Institute released its annual Supreme Court Review for 2014-2015.

Justice Ruth Ginsberg will be guest hosting WMFT’s midday programming on Monday at 10 AM: “Justice Ginsburg, a well-known opera aficionado, will discuss Opera and the Law with Lisa Flynn, during which the singers will present operatic excerpts with legal scenes.”

Justice Breyer’s Big Week

In SCOTUS news, this is Justice Breyer week.  Everywhere one looks, there he is—NPR, the Wall Street Journal, the New York Times, Colbert’s new late show.  The cerebral justice has a new book out, titled The Court and the World.  It is Breyer’s third book aimed at a general audience and he wants to talk about it.   Here is a brief roundup of Justice Breyer’s big week in the media.

Breyer published an op-ed in the Wall Street Journal titled “The Supreme Court in an Interdependent World,” in which he summarized the key points of his book.  Recent debates over Supreme Court citations to foreign law, he argues, is largely a distraction from the real issues involving the Court’s engagement with foreign law.  “Global interdependence increasingly is changing the work of the Supreme Court,” whether we like it or not.  Breyer concludes: “In the multipolar, mutually interdependent world, the best way to advance the values that the Founders set forth—democracy, human rights and widespread commerce—is to understand, to take account of, and sometimes to learn from, both legal and relevant nonlegal practices that take place beyond our shores.”

In the New York Times, Yale law professor John Fabian Witt wrote an appreciative review of Breyer’s “lucid” book.

Breyer contends that events in the world have effectively resolved the foreign law controversy. Playing the judge as enlightened modern technocrat, he offers a reasoned elaboration of the mounting costs that judicial isolationism would entail in our increasingly interconnected world. Globalization, he argues, has made engagement with foreign law and international affairs simply unavoidable.

“Breyer’s fiercest critics will most likely be unmollified,” Witt recognizes. “But democracy has never been a nativist straitjacket. Breyer’s book offers a powerful description of the price we would pay for allowing it to become one.”

NPR’s Nina Totenberg has an interview with Justice Breyer, which you can listen to here.  “There’s a tremendous thirst for knowledge about the court,” Breyer said in an interview with USA Today’s Richard Wolf.  His book “is not just for lawyers and judges,” Breyer explained.  “It is for people interested in how their lives are being changed by what’s happening in today’s world.”  

Tony Mauro interviewed the justice for the National Law Journal (story here; full interview here).  Breyer talked not only about his book but also about the previous term at the Court.  On his dissent in the lethal injection case, Glossip v. Gross, in which he gave a strong case for the unconstitutionality of the death penalty, Breyer explained:

I have been working on it for a while. This case was there and it seemed an appropriate place to say what I thought on the issue. I thought we should use that case, as I said in the opinion, to go into the basic problem here, which I thought was whether the death penalty itself is constitutional and I have my reasons.

In the Washington Post, Supreme Court reporter Robert Barnes interviewed Breyer.  On the controversy over looking to foreign law when interpreting the Constitution, Breyer noted the long history of U.S. judges looking abroad for guidance.  According to Breyer, the first time a citation to foreign law became a target for criticism was 1988, when Justice Scalia raised the issue in a dissent in a death penalty case.

For a profile in the New York Times, Adam Liptak interviewed Breyer in his home office in Cambridge (“cluttered and lived in, it bears signs of a restless intellect and a doting grandfather”).  “The world we’re operating in,” Breyer told Liptak, “is one in which by and large everyone believes you have to know something about what’s going on abroad.” Understanding legal practices outside the U.S., the Justice insists, “will help us think about our system.”  

And then there is the Colbert interview.  In his interview with Tony Mauro, Breyer explained his decision to go do the Colbert interview:

He has a serious news show. The publisher of this book is anxious, and I am not against, giving the book some publicity by talking seriously about it and he wants to talk about it seriously. Fine. I will do that for a couple of weeks and then I will go back to my regular job.

He is more interested in news. It is not a comedy show in particular. If he is interested in talking seriously about the book, fine. This is a serious news program actually. My publisher told me. I have not talked to him. I have just talked to the publisher, whom I trust.

If this is what Breyer expected, he was surely disappointed with his Colbert experience.

Colbert followed a very funny introduction, in which he noted that only 3% of Americans could identify Justice Breyer, with a light-hearted and not particularly substantive interview.  Colbert’s interview with “the man inside the muumuu” touched on, among other topics, cameras in the courtroom and the collegial relations among the justices.  One topic not discussed (at least not in the aired interview) was Breyer’s new book.  

In post-interview commentary, Matt Ford in the Atlantic described the interview as a “missed opportunity” for Breyer and Colbert to discuss more pressing legal issues.  In the Washington Post, Eric Wemple critiqued Breyer’s efforts to defend the Court’s refusal to allow video coverage of oral argument.

One imagines that after this week, Breyer will be happy to get back to his day job.

Weekly Roundup, September 11, 2015

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FindLaw’s examined the financial impact of Supreme Court decisions based on a recent report by Chicago-Kent Professor Dan Katz and others.

On Tuesday, Kim Davis was released from jail under orders “not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.”

CNN’s Ariane de Vogue predicts that future appointments to the Supreme Court will feature prominently in the 2016 presidential campaign.

A federal trial judge has opened up the potential for a lawsuit by the House of Representatives, claiming “the Obama administration is spending billions of dollars on the new health care program without Congress’s permission to do so.”

Sonia Sotomayor gave talks at the Springfield Public Forum’s 80th anniversary and at the Holyoke Public Library. “Working together, we can become, or try to become, a more perfect union,” she said. “As a society, we can correct ourselves.”

Judge Posner’s new book includes a discussion of the Supreme Court’s diversity problem.

Weekly Roundup, September 4, 2015

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On Monday, the Supreme Court refused to allow county clerk Kim Davis in Kentucky to deny marriage licenses to couples. Later in the week, ISCOTUS director Chris Schmidt weighed in on Kim Davis’ defiance and subsequent jailing.

A group of several Texas doctors and clinics requested that SCOTUS review an earlier ruling restricting their procedures. From the petition: “This case will determine whether Texas can force more than 75 percent of the state’s abortion clinics to close by enforcing a pair of statutory requirements that serve no valid state interest.”

On Thursday Rick Garnett commemorated Chief Justice William H Rehnquist, who passed ten years ago.

A study shows how Supreme Court Justice Clarence Thomas’ word choice reflects his position and role in court.

Justice Sonia Sotomayor took part in a 2-hour conversation at the University of Notre Dame. Regarding her judicial philosophy, she said, “I have always tried to approach the law as a learning process, as one of trying to understanding how other people have approached particular questions. I believe that people really expect the law to have some fixed meaning that gives them some measure of comfort in their human relations.”

At the end of this month, the Supreme Court justices will hold their Long Conference, “where appeals go to die.”