Weekly Roundup – December 19, 2014

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In response to the recent CIA torture report, Justice Scalia argued against a blanket ban on torture and declared that nothing in the Constitution prohibits torture.

Later this term, the Supreme Court will revisit the issue of life-without-parole sentences for juveniles.

By refusing to review a 9th Circuit decision, the Supreme Court left in place an injunction blocking enforcement of an Arizona law that limits use of a popular abortion drug.

By refusing to review another 9th Circuit decision, the Court rejected Arizona’s refusal to issue driver’s licenses to eligible undocumented immigrants.

The Court may have to settle a dispute between the Great Plains states, as Oklahoma and Nebraska sue Colorado over legalizing marijuana.

In Heien v. North Carolina, the Court held that the police did not violate a suspect’s Fourth Amendment rights when they searched his car subsequent to a stop that was based on their mistaken understanding of the law. What are the implications for our Fourth Amendment protections?

Will this be the Term for same-sex marriage? Robert Barnes of the Washington Post explores the issue.

Robert Kennedy’s Day at the Supreme Court

We used to have a tradition that each U.S. Attorney General would argue at least one case before the Supreme Court. Although he never argued a case in any court, Robert Kennedy was intent on following this tradition. (After appointing his brother as Attorney General, President Kennedy joked: “I can’t see that it’s wrong to give him a little legal experience before he goes out to practice law.”) To break tradition, Kennedy felt, would give more fuel to those who still questioned his qualifications. A solid performance at the Supreme Court might even quiet some of this criticism.

On January 17, 1963, Attorney General Kennedy made his sole appearance before the Court. He argued on behalf of the government in Gray v. Sanders, a constitutional challenge to Georgia’s county-based primary voting system, which strongly advantaged rural candidates over urban ones. The case was one of the Warren Court’s reapportionment line of decisions, a stepping stone between the more famous Baker v. Carr decision of the previous term (recognizing federal court jurisdiction in reapportionment challenges) and the Reynolds v. Sims decision (establishing the one person, one vote standard) that would come the next term. The Kennedy Administration had come out in support of judicial intervention to remedy the extreme imbalances of voting districts in states where legislatures refused to redraw voting district lines in response to demographic changes, resulting in the dilution of the voting power of citizens in growing urban areas. (For an excellent account of the reapportionment cases, see J. Douglas Smith’s new book, On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought ‘One Person, One Vote’ to the United States.)

On the day of oral argument, the Kennedy clan showed up in force at the Supreme Court. The Attorney General’s wife, Ethel, was there, along with his younger brother, Edward Kennedy, who had recently been sworn in as a U.S. Senator. Also there was the Attorney General’s sister in law, First Lady Jackie Kennedy. “Kennedys Outnumber the Justices” read one headline the following day.

When he rose to speak, Kennedy looked “like a nervous and uncomfortable young bridegroom,” reported the Washington Post. The justices respectfully listened to the Attorney General, allowing him to speak uninterrupted for some ten minutes as he read from a script prepared by Solicitor General Archibald Cox. Once he got going, his initial nervousness dissipated and he gave a generally solid presentation of his argument.

Kennedy’s presentation used one personalized reference (at 105:07) which got a laugh from the audience: “We used to have, and I repeat used to have, a saying in my City of Boston which was vote early, and vote often. If you live in one of the small counties in the State of Georgia, all you have to do is vote early and you accomplish the same result.”

When pulled from his script with some gentle questioning, Kennedy made his Solicitor General sitting in the gallery squirm a bit when he expressed support for a revised legal standard that went beyond his prepared talking points. Cox advocated a position under which some but not necessarily all inequality in voting districts would be held unconstitutional. Kennedy seemed willing to go further (at 109:58 – 110:45) supporting the “one man, one vote” standard under which any population inequality would be deemed unconstitutional.

In concluding his presentation to the Court, apparently returning to his prepared text, Kennedy gave eloquent voice to the basic principle at issue:

[T]he great miracle of the Constitution is that we’ve been able to deal with the problems of the 20th Century as well as the problems of the 18th Century. These are the great problems that are facing the United States at the present time. And this kind of invidious practice that exists now and has existed before and the Georgia County Unit System is a—strikes at the very heart of the United States. If we can give equal protection to those who feel that they’ve been deprived of their economic rights, certainly we can give equal protection to those who have been deprived of the most basic right of all, which is the right to vote. If we cannot protect them, then the whole fabric of American the system, then our way of life is irreparably damaged.

(Audio here, at 126:17 – 126:59)

In the end, Justice Douglas, writing for an eight-justice majority, basically accepted the Attorney General’s position:

Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment…. The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.

The approximately 25 minute clip of Kennedy’s oral argument can be found here (at 99:35 – 127:00).

My Record in Predicting Supreme Court Decisions: Still Perfect

As 2014 draws to a close, the Supreme Court has finished with its announcement of decisions for this year.  The Court issued opinions in 2 cases this week: (i) affirming (8-1) the decision in Heien v. North Carolina that reasonable mistakes about the law by police officers do not violate the Fourth Amendment and (ii) reversing (5-4) the decision in Dart Cherokee Basin Operating Co. v. Owens and holding that a notice of removal does not need evidentiary support, only a plausible allegation that the amount in controversy exceeds the state threshold.

After the oral argument, I found both decisions hard to predict based on the question counts.  But I’m happy to report my predictions in both Heien and Dart Cherokee were right.

So far, I’ve correctly predicted the outcomes in all 4 cases the Supreme Court has decided this Term.  To be honest, I’m surprised by the perfect score.  But I’ll take it because I know there are many other cases this Term I found very difficult to predict.

For the rest of my predictions, click here.

The Justices, Their Papers, and the Claims of History

Why do we care about what goes on behind closed doors at the Supreme Court? Do the justices have some sort of responsibility to ensure that the American people learn, at some point, the “inside” story of the Court? A recent article in the New Yorker by Jill Lepore on the theft of some of Justice Frankfurter’s papers, along with a provocative response by Michael Dorf, raise yet again these perennial questions.

We can all agree that there is something of value in getting behind the scenes at the Supreme Court. Journalists and historians delve into the available records and resources—correspondence, unpublished opinions, conference notes, interviews with justices and clerks—to try to recreate what happened. As a result of these investigative forays, today we have extensive knowledge of what was happening within the Court as the justices deliberated over many of the Court’s most significant decisions. Most recently, Joan Biskupic’s book on Justice Sotomayor made news with her revelation that Justice Sotomayor had written a sharp dissent in an affirmative action case that was never published when some of the justices, apparently influenced by Sotomayor’s dissent, switched sides.

But the question remains: what exactly is the value of these revelations? Historians and reporters don’t typically concern themselves with this question. These are important events, and their job is to find out as much about them as possible. Thus we lament justices who restrict access to their papers or, worse, justices who destroy their papers. But the question becomes more difficult when we shift perspective from that of the historian or journalist to that of the Supreme Court justice. Do the justices have a special responsibility to preserve the records pertaining to their work? Should we have laws that require them to do so, as we do in other areas of government? Professor Dorf raises the legitimate point that in order to determine whether this responsibility really exists and how far it should go requires an assessment of the value of these behind-the-scenes stories.

I agree with Dorf that this issue is harder than we might assume. To simply claim that the justices have a responsibility to “history” feels intuitively gratifying, but it does not resolve the issue. Yet I think that Dorf provides too narrow an assessment of how we might measure the value of materials relating to the inner workings of the Court.

Dorf concludes that the value of increased knowledge of the internal workings of the Court “is more in the nature of a claim of art than it is about making democracy function or anything so practical.” The papers of the justices, he writes, only rarely “contain documents that are relevant to some current controversy.”

We don’t need to know what Jackson said to Frankfurter or vice-versa to learn any useful lessons about the cases they decided or about interpersonal relations more broadly. Our interest (for those of us who have an interest in such matters) stems entirely from the fact that we find the matters inherently interesting….

We can understand the broad picture of the work of the Supreme Court and its relation to other institutions without access to the Justices’ papers. But for those who find history interesting, the minutiae of the decisionmaking process and even the behind-the-scenes gossip have inherent value. We can appreciate history in the way we appreciate art—for its own sake.

This goes too far, I believe. The supposed “lessons” of history to present-day dilemmas are invariably overstated, but there is value in knowledge about the ways in which the fundamental institutions of our society function. When it comes to the U.S. Supreme Court, its written opinions give us only a partial window into how it operates. Accounts of the Court’s decisionmaking process provide additional insight. Details about how the Court actually functioned at some past point, about how the justices came to their most important decisions, is surely of some considerable value in a constitutional democracy. It deepens our understanding of what the Court did in the past, what it does today, and what it might do tomorrow.

Consider, for example, where our understanding of the Court would be without knowing that prior to the 1940s the norm within the Court was for the justices to suppress dissents in all but the most important of cases. The justices believed that in most cases the value of an individual dissent did not outweigh the value of presenting an image of a unified Court to the public. The fact that the high rates of consensus in the Court during much of its history was a product of a norm and not actual consensus tells us something vitally important about the Court and the issues it confronted. It changes our understanding of some of the unanimous opinions that came in this period, and it changes out understanding of those relatively rare dissenting opinions of the period. It also changes our understanding of the Court we have had since the 1940s, when dissenting opinions have become commonplace.

Or consider our quite thorough understanding of what happened behind the scenes in the Brown decision. Behind the united front of Chief Justice Warren’s unanimous opinion were years of false starts, cajoling, and compromise. Although I would not look to the justices’ deliberations to learn something about the problem of racial segregation in schools today, I do believe that this seminal moment reveals something about how a fundamentally conservative institution could, for a time, stand at the vanguard of one of the nation’s most important social revolutions. Bruce Ackerman’s most recent book draws on the justices’ papers to identify several moments when the Warren Court almost took some major doctrinal leap in the name of the civil rights revolution, only to pull back at the last minute for one reason or another. All of this surely has some value for those who today are considering whether the Supreme Court might advance their cause of choice.

None of this resolves the very difficult question of how far the justices’ responsibility to history, legal or otherwise, goes when it comes to preserving and making accessible their papers. My goal here is simply to offer some thoughts as to how this issue should be approached. Dorf is surely right to argue that “history’s” claim to the details of the justices’ decisionmaking process cannot serve as a blanket call for transparency. But neither can this claim be reduced to the level of Supreme Court voyeurism. When historians and journalists recreate the inner workings of the Supreme Court, they are serving the legitimate claim of a democratic citizenry for knowledge about this critically important institution.

Weekly Roundup – December 12, 2014

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Why the Supreme Court might agree to hear a same-sex marriage case after all.

In January, the Court will hear a case concerning the constitutionality of a Massachusetts ordinance banning “aggressive begging.”

The Court’s decision not to intervene in BP’s gulf spill legal war could increase the company’s liability to billions more than anticipated.

The Court ruled on Tuesday that Amazon does not have to pay warehouse workers for time spent waiting to go through security screenings.

Bobby Chen—who, without a lawyer, persuaded the Court to hear his case—has gone missing.

The Justices appeared split along ideological lines in Wednesday’s U.S. v. Wong oral argument.

Linda Greenhouse reflects on the Court and rights for pregnant workers.

An in-depth Reuters report looks at the small, elite group of lawyers who wield outsize influence at the Supreme Court.

Predicting the Winners in US v. Wong and US v. June

The Supreme Court heard oral argument in two cases on Wednesday, both involving whether equitable tolling applies to claims against the federal government under the Federal Tort Claims Act. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method, see my post on last Term’s Aereo case.  For all of my predictions this Term, click here.

U.S. v. Wong asks whether the six-month time bar for filing suit in federal court under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

The Court asked the Respondent (Wong) 28 questions, 11 fewer than asked of the Petitioner (Solicitor General). The question disparity suggests a win for the Respondent, who argued for affirming the Ninth Circuit’s decision that the statute of limitations under the Federal Tort Claims Act is not jurisdictional and equitable tolling may be applied to it.

However, the picture gets more complicated looking at the question count per Justice. There’s a possible split along ideological lines. Chief Justice Robert and Justice Kennedy asked 8 and 4 questions to the Respondent (Wong), respectively, but no question to the Petitioner (Solicitor General). Justice Alito asked one more question to the Respondent. On the other hand, Justices Ginsburg and Kagan asked 7 and 10 more questions to the Petitioner, respectively. Justices Breyer and Sotomayor each asked 2 more questions to the Petitioner. Defying the ideological pattern, Justice Scalia asked 3 more questions to the Petitioner. Although 5 Justices asked the Petitioner more questions (suggesting a win for the Respondent), it is not clear whether Justice Scalia’s questions indicate a leaning to the Respondent’s side. In U.S. v. June, the companion case argued afterwards (see below), Justice Scalia asked more questions to the Respondent’s side.

The overall and individual question counts suggest a close case, probably a 5-4 decision. Justice Kennedy may be the swing vote, and his questions might suggest a leaning to the Petitioner (Solicitor General). However, I will stick with the overall question count and predict a win for the Respondent (Wong).

Figure 1.

Lee - 12.10.14 US v Wong

The second case, U.S. v. June, asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the Federal Tort Claims Act, 28 U.S.C. § 2401(b), is subject to equitable tolling.

This question count again favored the Respondent. The Court asked the Respondent (June) 17 questions, 9 fewer than asked of the Petitioner (Solicitor General). The overall question disparity suggests a win for the Respondent, who argued for affirming the Ninth Circuit’s decision.

However, just as in U.S. v. Wong, the picture gets more complicated looking at the question count per Justice. Chief Justice Roberts again asked the Respondent more questions (+4). Justices Ginsburg, Breyer, and Kagan again asked the Petitioner more questions (+4, +5, +4, respectively). Several Justices asked more questions to the other side compared to the side they asked more questions in Wong: Justices Scalia and Sotomayor asked the Respondent more questions (+2 and +1, respectively); and Justice Kennedy asked the Petitioner more questions (+1). Justices Thomas and Alito asked no questions. The pattern still suggests a possible ideological split. As in Wong, I will stick with the overall question count and predict a win for the Respondent (June).

Figure 2.

Lee - 12.10.14 US v June

My Perfect Record in Predicting Supreme Court Cases–So Far

On Tuesday, the Supreme Court handed down its first two decisions of the Term.  As SCOTUSblog reports, the Court reversed the 9th Circuit decision regarding overtime pay in Integrity Staffing Solutions v. Busk and affirmed the 8th Circuit’s decision regarding Federal Rule of Evidence 606(b)’s bar on juror-related evidence in Warger v. Shauers.  Both decisions were unanimous.

I correctly predicted the outcome in both cases.  Based on the large disparity of questions between the parties during oral argument, I thought both cases were very easy cases to predict–as you can see here.  Of course, it’s still early in the Term, and I don’t expect  my record in making predictions to remain perfect.  But, for now, I’ll take it!

We’ll be keeping the tally on this page during the Term.

Predicting the Winners in Gelboim v. Bank of America and ADOR v. CSX

The Supreme Court heard oral argument in two fairly technical cases on Tuesday, one involving the appeal of a dismissal of an action that has been consolidated with other actions that are still ongoing and the other involving the the Railroad Revitalization and Regulatory Reform Act of 1976.  Indeed, this week, the Court is knee deep in some very technical and complex areas of law. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method, see my post on last Term’s Aereo case. For all of my predictions this Term, click here.

The first case, Gelboim v. Bank of America Corporation, asks whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.


This case is easy to predict.  As Figure 1 shows, the Court asked the Petitioner (Gelboim) 59 questions, 19 more than asked of the Respondent (Bank of America). The large disparity in questions indicates a victory for the Respondent, which argued that 28 U.S.C. § 1291 “bars an immediate appeal as of right when one constituent in a consolidated district-court action [in a Multi-District Litigation] is dismissed from ongoing pretrial proceedings”as the Second Circuit held below.

The second case, Alabama Department of Revenue v. CSX Transportation, Inc., asks (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state’s tax scheme rather than focusing solely on the challenged tax provision.

This case is more difficult to predict, given the two questions presented as well as the Solicitor General’s third position supporting neither party.  The SG agreed with the Respondent that the proper comparison to determine discrimination against a rail carrier is compared to other competitors, but agreed with the Petitioner that “a state can justify a challenged tax’s differential treatment of railroads by pointing to an alternative and comparable tax that applies to the comparison class but not to railroads.”

If the SG were not involved, then I’d give the win to the Respondent (CSX), which was asked 9 fewer questions than the Petitioner, as shown by Figure 2 below.  Since the SG agreed with the Respondent on the comparison issue, I predict a victory for the Respondent on that issue. But what about the justification issue—whose view will prevail? It’s too hard to say from just the number of questions, especially given that the Solicitor General received only 10 minutes as an amicus. But if I had to make a prediction on the second issue, I’ll go with the SG.  So it’s a partial win for CSX.


Predicting the Winners in Direct Marketing v. Brohl and DOT v. AAR

The Supreme Court heard oral argument in two fairly technical cases on Monday, one involving the Tax Injunction Act and the other involving the Passenger Rail Investment and Improvement Act of 2008. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. For more about this method, see my post on last Term’s Aereo case.  For all of my predictions this Term, click here.

The first case, Direct Marketing Association v. Brohl, asks whether the Tax Injunction Act, which provides that “[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State,” bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.

This case is easy to predict. The Court asked the Petitioner only 36 questions and the Respondent 54 questions, a differential of 18 questions. The disparity in questions strongly suggests a win for the Petitioner (Direct Marketing Association).

Figure 1.

Lee - 12.8.14 Direct Marketing v Brohl

The second case, Department of Transportation v. Association of American Railroads, asks whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008, which requires the Federal Railroad Administration (FRA) and Amtrak to “jointly . . . develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak’s passenger trains that is required by federal law, and provides for the STB to appoint an arbitrator if the FRA and Amtrak cannot agree on the metrics and standards within 180 days, effects an unconstitutional delegation of legislative power to a private entity.

This case is closer, but I predict a win for the Respondent (Association of American Railroads). The Court asked the Petitioner 49 questions, 6 more than asked of the Respondent. The Justices appear to be divided along ideological lines. Three Justices asked the Petitioner more questions: Roberts (+13), Scalia (+9), and Kennedy (+5). Four Justices asked the Respondent more questions: Ginsburg (+3), Breyer (+12), Sotomayor (+6), and Kagan (+2). Justice Alito asked both sides one question, and Justice Thomas asked no questions. If the ideological pattern holds, I expect Justices Alito and Thomas to side with the Respondent as well.

Figure 2.

Lee - 12.8.14 DOT v AAR

Why Does Everyone Want the Supreme Court to Take a Same-Sex Marriage Case?

Red and blue Americans agree on precious little, but there is one thing that seems to be on every politician’s Christmas list this season: Supreme Court review of a same-sex marriage case.

Everyone, it seems, is asking the Court to take on the issue. Proponents of same-sex marriage are confident that they now have the five votes they need to strike down prohibitions on same-sex marriage nationwide. It was for this reason that even the winners in the slew of federal appeals court decisions recognizing a right to same-sex marriage joined the losers in asking the Court to grant certiorari. For those who believe prohibitions on same-sex marriage to be a violation of fundamental constitutional principles, a victory at the Supreme Court will be the culminating moment in a long legal struggle.

But the more interesting recent development has been the support for Supreme Court review by those who claim to oppose a constitutional right to same-sex marriage. States that have seen their marriage bans struck down in federal district courts are bypassing available appeals and asking the Supreme Court to take their case. The winners in the recent Sixth Circuit case upholding same-sex marriage bans are joining the losers in asking for Supreme Court review.

What’s going on here? Surely the two sides cannot be equally confident of victory in the High Court. A more likely explanation is that opponents of same-sex marriage simply want the issue taken off their hands. There are ever-decreasing political benefits to be gained from arguing against same-sex these days. Most conservatives probably want the Supreme Court to take the issue and to strike down marriage bans, as they are sure to do, sooner or later. This will give opponents one more opportunity to attack the liberal wing of the Supreme Court (more political points to be scored there than by attacking gay rights), and it will remove from the political agenda an issue that is becoming a growing liability for conservatives. Thank you Supreme Court.