This Day in Supreme Court History—April 22, 2014

On this day in 2014 the Supreme Court announced its opinion in Schuette v. Coalition to Defend Affirmative Action.

The case involved a 2006 amendment to the Michigan constitution, approved by a statewide referendum, that prohibited “all sex- and race-based preferences” in public education, employment, and contracting. The referendum was organized in response to Grutter v. Bollinger, the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s use of affirmative action. Following passage of the amendment, an alliance of progressive interest groups—the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary—challenged the amendment in court, claiming that it violated the Equal Protection Clause of the Fourteenth Amendment.

The Court denied the challengers’ claim. Six justices agreed that Michigan’s amendment did not run afoul of the U.S. Constitution, although they divided on their reasoning. Writing the opinion of the Court, Justice Kennedy insisted that the case was not about the constitutionality of using race as a factor in determining admissions, but whether states can choose to prohibit race preferences. This issue should be determined by the voters, Kennedy insisted, and nothing in the Constitution prevented them from concluding that government use of race classifications could “perpetuate the same racism such policies were meant to alleviate.”

The case produced several concurring opinions. Justice Scalia made clear his belief that the Equal Protection Clause not only did not prevent Michigan from adopting this policy, but that it required them to do so. Justice Breyer, who unlike the other justices in the majority had been a consistent defender of the constitutionality of affirmative action, wrote his own concurrence, emphasizing that regardless of one’s view on affirmative action, this was a matter that Michigan’s voters should be allowed to decide for themselves.

Justices Sotomayor and Ginsburg dissented. (Justice Kagan had worked on this case when she was Solicitor General and recused herself.) Justice Sotomayor wrote the dissenting opinion on behalf of herself and Justice Ginsburg, and, for the first time in her five years on the Supreme Court, she chose to read her dissent from the bench. In previous postings on this blog, I analyzed in some detail Sotomayor’s first oral dissent. Most of the remainder of this post draws from from those previous posts (available in full here and here):

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

 

Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position….

According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She concluded her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

Chief Justice Roberts wrote a short concurrence to take issue with Justice Sotomayor’s effort to frame the case as about the constitutionality of affirmative action rather than about deference to the decision making of Michigan’s voters. He wrote: “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

The Weekly Roundup – April 21, 2016

Having a full complement of justices can be a matter of life and death, as became clear this week. In Justice Gorsuch’s first vote as a Supreme Court Justice, he provided fifth vote to overturn a stay issued by the Eighth Circuit, thus allowing Arkansas to proceed with the first in a series of executions, which occurred last night. Before last night, Arkansas had not carried out an execution since 2005, but had decided to execute as many as eight men in an 11-day period because one of its execution drugs was nearing its expiration date. Ledell Lee was convicted of the 1995 murder of Debra Reese but had maintained his innocence. Among other arguments, his lawyers sought DNA testing that, they said, could exonerate him. Without Justice Gorsuch’s vote, the Court would have split 4-4, leaving the Eighth Circuit order in place. Justice Breyer issued a written dissent highlighting what he viewed as the arbitrariness of the execution. The New York Times reports here.

On Monday the Court heard arguments in three cases. In Perry v. Merit Systems Protection Board, the plaintiff, who was an employee of the Census Bureau, had complaints about his treatment and complained to the federal Merit System’s Protection Board (“MPSB”). His complaint included a discrimination claim, and the issue presented involves which court should review such an MPSB decision. Perry was the first case heard by Justice Neil Gorsuch on the Supreme Court, and many reported on his performance. Michael Doyle of McClatchy DC Bureau said that Gorsuch exuded “considerable self-confidence” and displayed a “seamless blend of preparation, persistence and humor.” The Justice asked his questions based with a textualist leaning, asking repeatedly why the Court should not just follow the plain text of the statute. Mark Joseph Stern of Slate.com provided a more critical review of Gorsuch’s performance and noted that at least two of his colleagues — Justices Alito and Kagan — seemed to think that his textualism would not be able to resolve the case.

Additionally on Monday, the Court heard arguments in Town of Chester v. Laroe Estates was also before the Court on Monday.  Former Chicago-Kent Law Professor Michael Scodro notes in Chicago Lawyer Magazine that this case will bring an end to a civil procedure question that has divided lower courts for years, whether or not Article III of the Constitution demands that third parties in a lawsuit must have their own standing to join the case. ISCOTUSnow discussed this case earlier this week, along with a third case argued on Monday, California Public Employees’ Retirement System v. ANZ Securities, Inc. ISCOTUSnow also discussed the two Tuesday cases — Kokesh v. Securities and Exchange Commission, and in Henson v. Santander Consumer USA, Inc. In Kokesh the Court will decide if the SEC can order defendants to return illegal profits that were taken over five years ago. In  Henson, the Court must decide if a company that buys debts but was not the original debtor considered a debt collector subject the Fair Debt Collection Practices Act.

Wrapping up the week’s arguments, on Wednesday the Court heard Trinity Lutheran Church v. Comer, and Weaver v. Massachusetts. Trinity involves the separation of church and state, making this case highly anticipated due to Justice Gorsuch’s prior rulings in favor of religious plaintiffs. The Court must decide if the Equal Protection Clause invalidates the Missouri Constitution’s prohibition of providing state funds to religious groups for secular purposes. According to Adam Liptak of the New York Times, the majority of the Court, including Justice Kagan seemed to favor the church. The final case for the week, Weaver, will determine if defendants must show prejudice in a claim of ineffective assistance of counsel that may have resulted in a structural error.

Also this week, the Court issued several opinions, although none of them were in cases that had garnered significant public attention. Most notably, on Wednesday, the Court ruled in Nelson v. Colorado, holding that the state must return fees paid by people who have had their convictions overturned without having to establish their innocence. That decision was 7-1, with only Justice Thomas dissenting. The other cases decided this week were Manrique v. United States, a 6-2 decision about the timing of notices of appeals from restitution orders, Goodyear Tire & Rubber Co. v. Haeger, in which the Court held 8-0 that a sanction for misconduct cannot require payment for fees not incurred as a result of that misconduct, and Coventry Health Care of Missouri, Inc. v. Nevils, an 8-0 decision holding that a federal law governing federal employees’ health insurance preempts state law. Justice Gorsuch did not participate in any of these decision.

In other news, Senator Chuck Grassley has predicted a Supreme Court vacancy as early as this summer. ABC News reported that the Senator expects one of the Justices to resign, as he stated an upcoming resignation is “rumored.”

And a correction: ISCOTUSnow reported Monday that Justice Gorsuch participated in last week’s Conference. But in fact, according to a footnote in Monday’s Order List, he did not. His first Conference is presumably today, and as SCOTUSblog reports, there are a host of important petitions awaiting his participation.

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.)

 

The Week Ahead – April 17, 2017

The Court began the week by welcoming Associate Justice Neil Gorsuch to the bench. As Richard Wolf of USA Today reports, Gorsuch was not shy about asking questions, and his questions focused forcefully on the text of the statutes the Court was considering. On Monday, the Court also issued its Orders List from the first Conference that Justice Gorsuch participated in. [Correction: Justice Gorsuch did not in fact participate.] It did not issue any new grants of certiorari, and it denied certiorari in one closely watched case: Mickelson v. County of Ramsey, which challenged charging fees to people who have been arrested but not convicted. Once again, however, the Court did not act in Masterpiece Cakeshop, Ltd. v. Colorado Commission on Civil Rights, a case about the clash between a baker’s religious convictions and a state’s prohibition on discrimination on the basis of sexual orientation. ISCOTUSnow discussed Mickelson and Masterpiece Cakeshop here, along with several other cases the Court has yet to act on.

On Monday, the Court heard arguments in Perry v. Merit Systems Protection Board, Town of Chester v. Laroe Estates, Inc., and – in a rare afternoon session – California Public Employee’s Retirement System v. ANZ Securities, Inc. Perry addresses whether a Merit Systems Protection Board decision is subject to review in the district court or in the U.S. Court of Appeals for the Federal Circuit. Howard Wasserman in a USA Today article notes that this is the type of “detailed, procedural, one-off” opinion that is usually pawned off on the junior-most justice. Justice Gorsuch was particularly active in the questioning in this case, as SCOTUSblog reports

Town of Chester focuses on whether a party that does not itself have Article III standing may nonetheless intervene in a suit over which a federal court has jurisdiction. Neal Katyal of Hogan Lovells argued the case on behalf of the Town of Chester. Katyal, who served as Acting Solicitor General in the Obama Administration, supported Gorsuch’s nomination both by writing an op-ed in The New York Times entitled Why Liberals Should Back Neil Gorsuch and by introducing Gorsuch at his confirmation hearing. As a result of Katyal’s vocal support for Gorsuch’s confirmation, there was speculation about whether Gorsuch would recuse himself from Town of Chester, as the National Law Journal reported. Justice Gorsuch in fact stayed on the bench during the argument, although he did not ask Katyal any questions, according to USA Today.

Lastly on Monday, in California Public Employee’s Retirement Systems (CalPERS), the Court heard argument about the timely filing of class actions in securities cases. Alison Frankel of Reuters explains the background of the case, including delving into the differences between statutes of limitation and statutes of repose, and also reports on the “trash talking” that ensued among the advocates on either side before the argument.

On Tuesday, the Court will hear oral arguments in Kokesh v. Securities and Exchange Commission and Henson v. Santander Consumer USA, Inc. In Kokesh, the Court’s second securities case of the week, the Court will consider whether a five-year statute of limitations applies to claims for “disgorgement” sought by the SEC. Disgorgement is an action against a wrongdoer to return to the rightful owner whatever profits the wrongdoer gained in the course of the illegal activity. BloombergBNA discusses the case further, here. In Henson, the Court will decide what constitutes a “debt collector” for purposes of the Fair Debt Collection Practices Act (FDCPA). Lexology explains that the circuits are split on the issue, and how important this issue is to state debt collection and enforcement activity.

On Wednesday the Court will hear arguments in cases with less technical issues, Trinity Lutheran Church of Columbia, Inc. v. Comer and Weaver v. Massachusetts. Trinity stems from a challenge to Missouri’s denial of grant to resurface a daycare playground. The denial stems from a provision of the state constitution that prohibits state aid from going to religious institutions. The Church argues this is a violation of the Equal Protection Clause. Above the Law addresses how Judge Gorsuch, given his prior decisions about the separation between church and state, could affect this case. And the case presents a new procedural twist. Last week, the Missouri governor announced that the state would now allow churches to receive funds under the playground surfacing program. The Court ordered the parties to submit letter briefs about whether this decision moots the case by noon on the day before argument.

In Weaver, the Court will analyzes ineffective counsel, structural error, and prejudice. The case involves a criminal defendant whose lawyer failed to object to the public (including the defendant’s mother and other supporters) being excluded from the courtroom during jury selection. Normally, the denial of a public trial is considered a “structural error” and the defendant does not need to demonstrate that he was prejudiced to receive a new trial. Here, however, the defendant’s public-trial claim is nested within an ineffective assistance of counsel claim. To win a new trial for ineffective assistance of counsel, the defendant must show that he was prejudiced by his attorney’s ineffectiveness. The state and intermediate federal courts have split on whether prejudice must be shown where structural error is the underlying basis for an ineffectiveness claim. And aside from the core issue of this case, there is a question of what constitutes a “public trial,” and what happens if a courtroom cannot accommodate everyone who would like to observe? Rory Little of SCOTUSblog explores further.

Finally, the Court may release opinions on Tuesday and/or Wednesday this week, and it will meet for Conference on Friday.

Weekly Roundup – (delayed from) April 14, 2017

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On Monday, April 10, Neil Gorsuch was sworn in as the next associate Supreme Court justice, filling the seat of the late Justice Antonin Scalia which remained vacant for the past 422 days. ISCOTUSnow described the swearing-in ceremonies in the Week Ahead post here.

During the second ceremony, Gorsuch was sworn in by Justice Kennedy, for whom Gorsuch clerked in 1993. As Julie Hirschfield Davis of the New York Times notes, this is the first time in Supreme Court history that a sitting justice will serve alongside a justice who had previously served as his clerk, noting that “Justice Kennedy’s presence was symbolic personally for Justice Gorsuch” as he considers him a mentor. In an article for CNN, Joan Biskupic speculates as to when Justice Kennedy might retire, mentioning that he has privately hinted to close friends and former law clerks that he intends to retire in the next few years. Kennedy, appointed by Ronald Reagan in 1988, is a center-right justice who has joined the liberal voting bloc in several high-profile cases, including Obergefell v. Hodges, the case that legalized same-sex marriage and for which Kennedy penned the majority opinion. His departure from the Court would, as Biskupic describes, “be more momentous than the one filled on Monday after the February 13, 2016 death of rigid conservative Scalia. If President Donald Trump were to choose someone on the right-wing like Gorsuch to succeed Kennedy, the nation’s highest court would become significantly more conservative.”

Seung Min Kim of Politico addresses the fallout of the “nuclear option” triggered by Senate Republicans to secure Gorsuch’s confirmation. Kim quotes Sen. Ed Markey (D-Mass), who vowed to restore the 60-vote threshold formerly needed to break a filibuster on confirmation hearings for Supreme Court nominees should Democrats relinquish control of the Senate: “We will ensure that for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people who are nominated. Rather than just someone who passes a litmus test.” Kim suggests, however, that “[i]f history is any guide, Democrats are unlikely to actually revive that 60-vote threshold, particularly if they also win the White House along with the Senate majority [in 2020]. Though Republicans were enraged after Senate Democrats deployed the nuclear option in 2013 for all nominations other than the Supreme Court, the GOP chose to keep the lower threshold for nominees when they retook the Senate majority in 2014.”

On Wednesday, Terry Gross, in a segment of Fresh Air on NPR, discussed Leonard Leo, a conservative lawyer who has had extensive involvement in the selection of Justices Roberts, Alito, and Gorsuch. Gross interviewed Jeffrey Toobin, who profiled Leo in a recent article for the New Yorker titled “The Conservative Pipeline to the Supreme Court.” Leo is the executive vice- president of the Federalist Society, a nationwide organization of conservative lawyers that has been “very engaged in identifying and recruiting for judges candidates who are ultra-conservatives.” Toobin argues that “Gorsuch is likely to be only the first of Leo’s Trump Administration appointees: he is preparing for yet more vacancies on the Supreme Court, and also finding candidates for some of the hundred-plus vacancies on the lower courts, deepening his imprint on the judiciary.”

This Day in Supreme Court History—April 12, 1937

On this day in 1937, the Supreme Court handed down NLRB v. Jones & Laughlin Steel, a cornerstone of what became known as the “Constitutional Revolution of 1937.”

In National Labor Relations Board v. Jones & Laughlin Steel Corporation, ten former workers of Jones & Laughlin Steel brought a suit against the company, asserting that they were illegally fired after they attempted to unionize and join the Steel Workers Organizing Committee. The recently created National Labor Relations Board ordered Jones & Laughlin Steel to rehire the employees and compensate them for any back pay owed them.

The law that created the NLRB, the National Labor Relations Act of 1935, also known as the Wagner Act, was a critical component of President Franklin D. Roosevelt’s New Deal program of legislative reforms. An unprecedented attempt to address the unequal bargaining power dynamic between employers and employees, the Wagner Act prohibited employers from punishing employees for organizing or joining a union and required them to engage in collective bargaining with unionized workers.

Congress claimed authority to pass the Wagner Act under its power to regulate interstate commerce, enumerated in Article I of the Constitution. In challenging the law, Jones & Laughlin argued that its provisions regulating the bargaining relationship between employees and employers went beyond Congress’s commerce power.

After a string of controversial decisions striking down New Deal legislation, the Supreme Court changed course. In a 5-4 decision, the Supreme Court upheld the bargaining provisions of the Wagner Act. Chief Justice Charles Evans Hughes delivered the opinion of the Court, arguing that the commerce power extended to regulations designed to prevent a potential strike at Jones & Laughlin, since a work stoppage would have an “immediate, direct, and paralyzing effect upon interstate commerce.” “Collective bargaining is often an essential condition of industrial peace,” Hughes asserted, and a “refusal to confer and negotiate has been one of the most prolific causes of strife.”

The decision was a landmark ruling on the meaning of the Commerce Clause. Its reasoning granted far more authority to Congress to regulate economic relations than the Court had previously allowed. It was also a major victory for industrial and factory workers across the country. The Wagner Act helped usher in a new era of labor relations, one in which union power, backed by the authority of the federal government, entered into negotiations with industry on far more equal footing than before.

The Week Ahead – April 10, 2017

As of this morning, with the swearing in of Justice Neil Gorsuch, the Supreme Court is back to its full complement of nine justices. As The Los Angeles Times reports, Gorsuch had two swearing-in ceremonies. The first was a private ceremony at the Supreme Court, at which Chief Justice Roberts presided and, Mark Walsh of SCOTUSblog explains, at which Gorsuch took the constitutional oath. The second ceremony was in the White House Rose Garden, and Justice Kennedy — for whom Gorsuch clerked — administered the judicial oath. In a longer piece, Mark Walsh explains the difference between the oaths provides some background on the history of the oaths taken by Supreme Court justices.

Justice Gorsuch will not hear his first arguments until next week. The first cases that he will hear on the Court involve the legality of the exclusion of churches from state funding in Trinity Lutheran Church v. Comer, the Sixth Amendment, defendant’s rights, and inadequate counsel, the revocation of a naturalized citizen’s citizenship, and the proper timing of class action securities lawsuits. Check out Fox News for more details on these cases. USA Today and the Washington Post also provided articles on Gorsuch’s likely impact that will start next week. Gorsuch is not likely to upset the ideological balance of the court given the previous occupant of his seat was Justice Scalia, but he will bring the Court back in full swing now that there are nine justices in place and no worries of deadlocked decisions.

Justice Gorsuch does not even have until next week to get used to his new job. The justices meet for their next Conference on Thursday. Among the duties of the most junior justice is taking notes at Conference and — even more prosaically — answering the door. As Justice Kagan explained — to Gorsuch himself at a public interview last summer — this can happen because “you know, one of the justices forgot his glasses. The other justice forgot her cup of coffee.” And as Kagan also explained, the junior justice sits on the cafeteria committee.

There will also be serious business. As usual, SCOTUSblog identifies petitions worth watching that are listed for the next Conference. One such case is for a writ of certiorari is Dot Foods, Inc v. Department of Revenue for the State of Washington. Law360 describes the case, in which Dot Foods argues its due process rights were violated when it was stripped of its tax-exempt status due to a retroactive application of a Washington statutory amendment that regulated in state sales and commerce of out of state businesses.

Another case worth watching is Carpenter v. United States. As CATO Institute explains, this case involves the constitutionality of warrantless search and seizure of cell phone records under the Fourth Amendment. The plaintiffs were convicted of armed robberies and are appealing their conviction arguing that it violated the Fourth Amendment for the government to  use the cell phone records for information about their whereabouts.

Another case distributed for Thursday’s conference is Mickelson v. County of Ramsey. The issue in this case is whether it is a due process violation for the government to confiscate money from innocent people due to an arrest, and make them prove they are entitled to have it back. Adam Liptak of  The New York Times explains that Corey Statham was arrested and had his charges dismissed, but the county kept a portion of his confiscated money as a “booking fee.” A number of states bill people merely for being arrested and held in jail, and Statham’s attorney Michael A. Carvin argues that, “providing a profit motive to make arrests gives officers an incentive to make improper arrests.”  The issues in this case are similar (though not identical) to the civil forfeiture issues Justice Thomas recently highlighted in an opinion respecting the denial of certiorari.

Finally, the Supreme Court will be considering whether to grant cert in the repeatedly relisted Masterpiece Cake Shop, Ltd. v. Colorado Commission on Civil Rights, which addresses whether an antidiscrimination law can be constitutionally applied to a baker who makes wedding cakes but refuses to do so for same-sex couples for religious reasons. This is one case in which Gorsuch’s arrival could make a substantial difference, as CNN reports here.

Weekly Roundup – April 7, 2017

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The big news this week involved the Senate’s action on Judge Neil Gorsuch’s nomination to replace Justice Scalia. This morning, the Senate confirmed Gorsuch on a 55-45 vote. Three Democrats (Joe Donnelley of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia) joined all Republicans in voting yes. Roll Call reports that this voting breakdown means that Gorsuch received the smallest number of opposition party votes of anyone on the Court. Presumably, Gorsuch will be sworn in immediately and will join the Court next week to discuss cert petitions at Conference and on April 17 to hear oral argument. (The Court’s calendar is here.)

The Gorsuch nomination engendered a major procedural upheaval in the Senate — the so-called nuclear option. As The New York Times explained, after more than 41 Democrats voted against ending debate on the nomination — thus successfully maintaining a filibuster, which ordinarily can be ended only with at least 60 votes — the Republican-controlled Senate changed its rules so that only 51 votes are needed to end debate on a SCOTUS nomination. Although Democrats had made a similar rules-change during the Obama presidency for presidential executive-branch appointees and lower court judges, they had pointedly left the filibuster intact for SCOTUS nominations. On Thursday, on a straight party-line vote, the Republicans eliminated that supermajority requirement.

Not surprisingly, numerous commentators have weighed in on the likely effects of the Senate’s action on the Supreme Court going forward. ISCOTUS co-director Carolyn Shapiro argues that in the long run, eliminating the filibuster may allow Democrats to appoint more liberal justices. Others, like Scott Lemieux, predict an increasingly large conservative majority on SCOTUS. Jonathan Adler argues that because the absence of the filibuster will make it harder to stop a nomination, incentives to obstruct will decrease and presidents of both parties will be freer to nominate justices with less traditional resumes.

Although the Supreme Court did not hear argument this week, it did hand down two unanimous decisions on Monday. In Chief Justice Robert’s Dean v. United States opinion, the Court decided that a judge, when calculating the sentence for a predicate offense, does not have to ignore the fact that the defendant will serve mandatory minimums imposed under 18 U.S.C. § 924(c). The Court reversed and remanded a decision from the Eighth Circuit Court of Appeals that Levon Dean’s sentence of more than 33 years was reasonable. The Court reasoned that a) “sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence” and b) § 924(c) does not specify how long the sentences should be for predicate offenses nor does it specify what courts can consider when determining those sentences. Above the Law explores what prison time accomplishes and “when is enough enough?”

In McLane Co., Inc. v. Equal Employment Opportunity Commission, the Court held that a district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. The Court reasoned three main conclusions: (1) reviewing for abuse of discretion is a “longstanding practice” of appeals courts, (2) district judges’ expertise is well suited to decide whether evidence sought is relevant to a specific charge or whether a subpoena is unduly burdensome in light of circumstances, and (3) deferential review will streamline the litigation process by freeing appellate courts from the obligation of reconsidering evidence and facts that district courts have already considered. The National Law Review discusses the case in more detail.

The Court also granted certiorari in two cases: Jesner v. Arab Bank, PLC and Ayestas v. Davis. The Court will likely revisit its 2013 Kiobel v. Royal Dutch Petroleum decision in order to decide if, under the Alien Tort Statute, corporations can be held liable for human rights violations, the New York Law Journal reports. In Ayestas, the Jurist explains that the Court will address a defendant’s right to federal funding for an expert for a habeas petition.

 

Gaming Out the Nuclear Option

Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Today, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I’m not alone in thinking about unintended consequences here. Nate Silver of 538.com has an extensive piece today about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

In contrast, the Democratic nominees during this timeframe – Ginsburg, Breyer, Sotomayor, and Kagan – were all seen as varying degrees of moderate liberal at the time they were nominated. You don’t have to take my word for this. Relying on data from the venerable Supreme Court Compendium, University of Chicago Law Professor Geoffrey Stone has ranked the nominees (through Kagan) by perceived intensity of ideology at the time of nomination. Except for Souter and Kennedy, all Republican nominees in the past 35 years have more intense ideological preferences than all Democratic nominees in the same timeframe.

And nominating a moderate did not help President Obama in the fight over the vacancy left by Justice Scalia’s death. President Obama’s pick, Judge Merrick Garland, was anything but an extreme nominee. Indeed, only a week before his nomination, Senator Orrin Hatch predicted that Obama would not nominate Garland, whom Hatch had previously praised as worthy of bipartisan support, because he was too moderate, and some progressive groups were disappointed by the nomination. Given that context, the Republican refusal to even consider Garland was and remains particularly infuriating to Democrats. As a result, one lesson Democrats might reasonably draw from the Garland nomination is that there is no Democratic nominee moderate enough (or old enough – Garland was in his 60s, quite old for a lifetime appointment) to be confirmed by a Republican Senate.[1] This lesson may resonate all the more because the Garland nomination was the first since before Brown v. Board of Education was decided in 1954 in which a Democratic president’s nominee was made to a Republican-controlled Senate. In other words, there is no history of a Republican-controlled Senate confirming moderate Democratic nominees.

Contrast this Republican treatment of Garland to the treatment Democratic- controlled Senates have given Republican SCOTUS nominees. Since 1954, Democratic Senates have confirmed numerous Republican appointees, including the conservative Burger, Rehnquist (when appointed as Associate Justice), Kennedy, and Thomas. Democratic Senates also confirmed Souter, Stevens, Powell, Blackmun, and President Eisenhower’s four post-­Brown nominees. That’s twelve confirmations. And until today, the Democrats have never filibustered a Republican nominee. Republicans like to complain about Bork, who was narrowly defeated by a Democratic Senate. But as this list makes clear, Bork’s defeat was unusual. And it happened because he was himself unusual in his extreme positions and rigid readings of the Constitution.

Finally, it’s worth noting just how rare Democratic Supreme Court appointees have been in the last half-century. In 1967, President Johnson successfully nominated Thurgood Marshall to the Supreme Court. No justice was nominated by a Democratic president for another 26 years, until President Clinton nominated Justice Ginsburg in 1993, followed by Justice Breyer in 1994. The most recent two Justices to join the Court – Justices Sotomayor and Kagan – were appointed by President Obama. That is it – five appointments in 50 years. In contrast, during the same time period, Republican presidents successfully appointed eleven Justices and additionally successfully elevated Rehnquist from Associate to Chief Justice.[2] With the pending confirmation of Justice Gorsuch, the Republican tally will increase to twelve – with Democrats still steaming over the treatment of Garland.

The point here is that despite Republican complaints that Democrats have been waging “scorched-earth ideological wars” over judicial nominees, at least during the past 35 years, Republicans have been more aggressive in trying to appoint ideologically extreme Supreme Court justices. Pushing such appointments – and eliminating the filibuster to get the latest one through – while refusing to even consider a moderate nominee by President Obama removes many of the incentives for Democrats to nominate moderates when they control both the Senate and the Presidency. When it comes to selecting new members of the Supreme Court, we should expect future Democratic presidents and Democratic-controlled Senates to act more like Republicans have been acting, resulting in more liberal appointments. (It also may, for the first time, lead Democratic voters to focus as much on the Supreme Court as Republican voters do, although this may be wishful thinking.) But the bottom line is that in the long run, Republicans may live to regret the nuclear option.

[1] There are of course other factors here. The fact that a Democratic nominee to replace Scalia would have a dramatic effect on the overall ideological balance of the Court surely played a role in encouraging Republican opposition. And Republicans also argue, for example, that some Democrats had themselves proposed a moratorium on SCOTUS nominations during a presidential election season.

[2] The Republican-appointed justices are Burger, Blackmun, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Roberts, and Alito. We can also go back to Brown, since that is a timeframe I use elsewhere in this post. Since Brown, and not including Gorsuch, Republican presidents have successfully nominated fifteen justices, and Democrats have successfully nominated eight. The additional Republican appointees are Harlan, Brennan, Whittaker, and Stewart, while the Democratic appointees are White, Goldberg and Fortas.

Should Democrats Filibuster the Gorsuch Nomination? Pro & Con

Here are the arguments for why Senate Democrats should filibuster:

  1. Garland. They need to protest what Republicans did to Judge Garland’s nomination last year. Democrats need to take extraordinary action to make it clear the extreme wrong of the Republican refusal to hold hearings.
  2. Gorsuch. Judge Gorsuch will be such a conservative justice that Democrats need to do all they can to try to stop his nomination.
  3. The Base. The progressive base and liberal pressure groups are energized and are demanding that Democratic senators do all they can to stop the nomination. Even if a filibuster is unlikely to prevent Gorsuch from taking his seat, it could be seen as a partial victory and might further energize the base for future battles.
  4. Long Game. The most likely consequence of a filibuster—i.e., the “nuclear option” of a Senate rules change that eliminates the filibuster for Supreme Court nominations—is not as bad as it sounds. A straight majority vote process might even allow a future Democratic-controlled Senate to get a more liberal justice onto the Court.

And here are the arguments for why Senate Democrats should not filibuster:

  1. Futility. The Republicans have the votes to change the rules, eliminate the filibuster, and put Gorsuch on the Court. Why not focus on battles that can be won?
  2. The Next Justice. Gorsuch is conservative but widely respected and clearly qualified. And he is taking the seat that had been occupied by the conservative Justice Scalia. Why not preserve the filibuster for a future court battle in which the nominee might be more problematic (less qualified and/or more extreme) and/or the current ideological balance of the Court will be at stake?

The Week Ahead – April 3, 2017

As ISCOTUSnow noted earlier today, this is showdown week for the Gorsuch nomination. Since this morning’s post, there have been two big developments. First, as expected, the Senate Judiciary Committee voted in favor of confirming Gorsuch on a party-line vote. Second, as was less certain, enough Democrats announced their intention to vote against cloture, which is the procedure that ends a filibuster. As ABC News reports, four Democrats today (Chris Coons, Dianne Feinstein, Patrick Leahy, and Mark Warner) announced their intention to against cloture, bringing the total to the 41 necessary to maintain a filibuster. (Since then, Ben Cardin (MD) has also said that he wil vote against cloture.) In the past few days, three Democrats — Joe Donnelley (IN), Heidi Heitkamp (ND), and Joe Manchin (WV), all from states that Trump won — announced that they will vote for cloture.

The focus now shifts to the full Senate. Senate Majority Leader McConnell has announced that the Senate will vote on the Gorsuch nomination on Friday. And he has reiterated his threat to invoke the “nuclear option,” eliminating the supermajority needed to end debate and proceed to a merits vote for Supreme Court nominees. Making good on this threat would require the votes of 51 Senators, however, meaning that McConnell can afford only one defection from his caucus. It remains to be seen if he will be successful. Ted Barrett, in an opinion piece for CNN written before today’s events, explains that

“The Senate may be a week away from turning into the House. Senators from each party . . . worry that by getting rid of the 60-vote threshold to defeat a filibuster on the nomination, the Senate is one step away from turning into a mirror-image of the House — a chamber where bipartisanship isn’t needed to pass bills and whichever party is in the majority can govern with little or no input from the minority party.”

There has been much commentary about the wisdom, or lack thereof, of a filibuster by the Democrats (see our earlier post for some links), but today there is also some interesting commentary about how the Democrats got to this point. According to a New York Times op-ed by a former staffer to now-retired Senator Harry Reid, who served as both majority and minority leader for the Democrats, the Democratic Senators went into the confirmation hearing with an open mind but were offended and angered by Gorsuch’s demeanor and — more so — his refusal to answer even the most uncontroversial questions. The Victoria Bassetti of the Brennan Center makes a similar argument in more detail.

The Supreme Court has no oral arguments scheduled this week, but it issued orders and opinions today, Monday, April 3. In the first of two grants, Jesner v. Arab Bank, PLC, the Court will consider the extent to which the Alien Tort Claims Act imposes liability on corporations. (The defendant bank in Jesner is accused of helping to finance terrorist activity.) Ayestas v. Davis, the second case granted today, focuses on federal courts’ obligations to provide resources to habeas petitioners who need help developing their ineffective assistance of counsel claims.

In the first of two opinions issued today, Justice Sotomayor wrote for seven justices in McLane v. EEOC, ruling that appellate review of district court determinations whether to enforce or quash EEOC subpoenas is based on abuse of discretion, not de novo review. Justice Ginsburg concurred in part and dissented in part. And in Dean v. United States, Chief Justice Roberts wrote for a unanimous Court, holding that a district court judge may take into account mandatory sentences that must run consecutive to other sentences in exercising sentencing discretion.

Finally, Justice Sonia Sotomayor will speak at two events in upstate New York on Tuesday, April 4. First, she will speak at the Schacht Fine Arts Center on the Troy campus of the Sage Colleges in Troy, New York. The event is part of Centennial Celebration of the Sage Colleges, and will feature a question and answer discussion with Justice Sotomayor. Later on Tuesday, she will headline a speaking event at the University at Albany – State University of New York. She will be discussing her 2013 best-selling autobiography My Beloved World and the event will also include a question and answer discussion.