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Chief Justice Roberts went to New York to lecture about former Chief Justice Charles Evans Hughes. In The Wall Street Journal, Jess Bravin wrote that the lecture was “less about law . . . than about leadership, the peculiar kind that a chief justice can, with sufficient dexterity, exercise in a role that gives him . . . a muted place in the political dialogue.” The Chief Justice impressed Steven Mazie of the Economist, who wrote, “Roberts comes off as disarmingly charming, exuding fair-mindedness and an understated wit.”
ABA Journal previewed the upcoming “one person, one vote” Evenwel v. Abbottcase. On Balkanization, David Gans warned that the plaintiff’s arguments “would undermine minority representation in Texas . . . and throughout the nation.”
The Supreme Court posted its monthly argument calendar for January.
Oyez has released a new podcast highlighting famous past oral arguments that have a bearing on upcoming cases in the Supreme Court. This week’s podcast focuses on affirmative action and the 2013 Supreme Court case of Fisher v. University of Texas.
We’re signing off early this week for the holidays. Happy Thanksgiving!
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.)
Nancy S. Marder of Chicago-Kent wrote a guest post for us on Wednesday about Foster v. Chatman and race discrimination in peremptory challenges.
The Daily Progress and The National Law Journal covered an event Justice Sotomayor attended at the University of Richmond School of Law in which the Justice discussed how she nearly pulled out of the confirmation process.
Last Friday’s announcement that the Court will review a challenge to a Texas law regulating abortion clinics has caused a ripple of opinion. In The Economist, Steven Mazie wrote “the constitutional and political stakes are huge . . . . The ruling will amplify concerns about the justices Barack Obama’s successor will appoint to a bench that, a year from now, will be occupied by three octogenarians.” See also further coverage from NPR and Reuters.
The Court recently decided, in Mullenix v. Luna, that “a police officer should have been granted qualified immunity when he shot at a car whose driver had led police on a high speed chase to stop it instead of waiting to see if spike strips worked.” An analysis is available at the NCSL Blog.
Justice Scalia tells students at Georgetown University that the Supreme Court’s decisions protecting gay rights were not rooted in the Constitution and their logic could justify judicial protection of the rights of child molesters. See the report in the New York Times.
Simon Lazarus pointed out a “stealth corporate takeover” of the Court in The New Republic.
Image used under CC License from Wikimedia Commons
Guest Post by Nancy S. Marder, Professor of Law, Director of the Justice John Paul Stevens Jury Center, and Co-Director of the Institute for Law and the Humanities at IIT Chicago-Kent.
On November 2, 2015, the United States Supreme Court heard oral argument in Foster v. Chatman. The petitioner in this case, Timothy Tyrone Foster, asked the Court to decide whether the prosecutor exercised peremptory challenges based on race, in violation of an earlier Supreme Court precedent, Batson v. Kentucky. Peremptory challenges are allotted to both sides during jury selection so that they can remove a certain number of prospective jurors from the jury without having to give any reason at all.
Batson, which was decided in 1986, established that peremptory challenges cannot be exercised by prosecutors against African-American prospective jurors if the defendant is African-American. Later Supreme Court cases expanded Batson and established that lawyers cannot exercise peremptory challenges based on the prospective juror’s race, ethnicity (Powers v. Ohio) or gender (J.E.B. v. Alabama ex rel. T.B.), and these prohibitions apply to prosecutors and defendants (Georgia v. McCollum) in criminal cases, as well as to lawyers in civil cases (Edmonson v. Leesville Concrete Co., Inc.).
Petitioner Timothy Tyrone Foster, an African-American man who has been on death row for the past twenty-eight years in Georgia, claimed that the prosecutors in his case violated Batson by exercising race-based peremptory challenges and striking four African-American prospective jurors during jury selection. Foster was tried, convicted, and sentenced to death by an all-white jury.
Foster’s case provides an unusual window into the exercise of peremptory challenges and how prosecutors have managed to circumvent the proscriptions of Batson. When Foster objected to the prosecutors’ four peremptory challenges, the prosecutors gave seemingly race-neutral reasons for their challenges, which the trial judge and reviewing state courts accepted. However, years later Foster was able to obtain the prosecutors’ notes through the Georgia Open Records Act. The notes revealed that the prosecutors were working from a venire or panel list that highlighted in green those who were African-Americans, juror cards that indicated African-American prospective jurors by race, and a list of “definite no’s” that included the remaining African-American prospective jurors (after for cause challenges and hardship excuses had been exercised).
Although the prosecutors gave seemingly race-neutral reasons for the exercise of their peremptory challenges, their notes suggested that they considered race at every stage of jury selection. This is as close to a “smoking gun” as one is likely to find in a Batson challenge, unless the prosecutors had said outright that they had struck jurors based on their race, which no prosecutor would say after Batson.
During oral argument at the U.S. Supreme Court, the lawyer for Georgia tried to explain the prosecutors’ notes by saying that they had to keep track of the prospective jurors’ race because the petitioner had filed a motion seeking to prevent the State from exercising peremptory challenges based on race. Several of the Justices, however, were skeptical of this reason because it was not advanced until Georgia filed its brief at the U.S. Supreme Court. The prosecutors had never made this argument in any of the courts below.
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One of the more surprising aspects of the oral argument was a procedural question about whether certiorari in this case should be directed to the Georgia Supreme Court, that had declined to issue a certificate of probable cause because it found Foster’s habeas appeal to be meritless, or whether it should be directed to the Superior Court of Butts County, Georgia that had considered and denied Foster’s habeas petition based on the newly discovered prosecutors’ notes. The Supreme Court had taken the highly unusual step of sending the parties a letter on the Friday (Oct. 30, 2015) before Monday’s oral argument (Nov. 2, 2015), letting them know that they needed to address this procedural issue. Each side spent almost 20 of its 30 minutes of oral argument on this issue. However, those in the courtroom on Monday—other than the Justices and both sides’ lawyers—had no idea why the lawyers were addressing this procedural issue rather than the merits of the case.
This procedural issue, which was not resolved at oral argument, might lead the U.S. Supreme Court to decline to reach the merits of this case, or to wait until after the Georgia Supreme Court or the Eleventh Circuit has weighed in on this issue.
It would be unfortunate if the Supreme Court does not reach the merits of this case. Although it is notoriously difficult to show a Batson violation, in this case the prosecutors’ notes speak for themselves and show that the prosecutors’ peremptory challenges were based on the race of the prospective jurors. If the Court reaches the merits, there is a good chance it will hold that the prosecutors in this case violated Batson.
However, if the Court is able to reach the merits, I believe it should go even further than Foster has requested and eliminate peremptory challenges. Peremptory challenges continue to serve as a mask for discrimination during jury selection. Justice Thurgood Marshall, in his concurrence in Batson thirty years ago, urged the Court to eliminate peremptory challenges in order to eliminate discrimination during jury selection. He wrote that as long as peremptory challenges were permitted, discrimination during jury selection would persist. Justice Marshall was right and thirty years of experience with Batson have proven his point.
Read Nancy S. Marder’s article, “Foster v. Chatman: A Watershed Moment for Batson and the Peremptory Challenge?” on SSRN.
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.)
A trailer for PBS’ “Unexpected Justice” about Justice John Paul Stevens was released this week. The documentary concerns the Justice’s involvement in a whistleblower case against some Justices in the Illinois Supreme Court.
Oral arguments for Luis v. United States were held on Tuesday. The case raises the question of whether a court can freeze a defendant’s “untainted” assets when “tainted” assets are not available. NPR’s Nina Totenburg reported on the case, while Mark Joseph Stern wrote it up on Slate.
“Is John Roberts a good judge?” Adam White examined the Chief Justice’s legacy in The Weekly Standard.
Tyson Foods, Inc. v. Bouaphakeo, argued on Tuesday, was a “highly anticipated showdown over the standards for establishing a class action” that “proved disappointing,” according to Daniel Fisher on Forbes. Tony Mauro wrote up the case in The National Law Journal and Richard Wolf reported in USA Today.
The Obama Administration has appealed a federal appeals court decision that held unconstitutional the President’s executive order on immigration. “The president’s lawyers may face an uphill fight in the high court, where some justices have voiced skepticism over Obama’s bold use of executive authority,” write David Savage and Timothy Phelps in the Los Angeles Times.
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.)
On Monday, the Court reviewed Spokeo, Inc. v. Robins, about an Internet “people search engine” alleged to have violated the Fair Credit Reporting Act. Vanderbilt Law Review hosted a roundtable on the case. The Los Angeles Times previewed the case, while on The National Law Journal, Marcia Coyle reported on the oral arguments. James Cooper wrote an op-ed for The Christian Science Monitor, saying that if the Court “sides with the alleged victim, any tech company that collects and aggregates personal data could be subjected to devastating lawsuits.” A Reuters report noted the close division in the Court’s response.
On Monday the Supreme Court heard oral arguments in Foster v. Chatman, concerning the exclusion of African Americans from a capital jury. In The New York Times, Larry Thompson wrote that if the Supreme Court “cannot establish discrimination in this case, then the lofty language of Batson rings hollow.” Nina Totenberg covered the case on NPR; on The Economist, Steven Mazie discussed the argument.
David Gans wrote about the amici curiae brief filed by the Constitutional Accountability Center for Fisher v. University of Texas, round two at the Court of a challenge to UT’s affirmative action policy.
The Supreme Court Justices reviewed child pornography sentencing enhancements in Lockhart v. United States on Tuesday. Jessica DaSilva reported on BNA.
“What did Congress mean a generation ago when it required prisoners challenging prison conditions and treatment in court to pay hefty filing fees, in monthly installments, from their meager prison wages?” USA Today reported on Wednesday’s discussion of Bruce v. Samuels.
