All posts by Chris Schmidt

The Gorsuch Report—Week 3

Here are the latest headlines for President Trump’s Supreme Court nominee Neil Gorsuch.  

The Clerks Speak Out. Judge Gorsuch’s past law clerks signed a letter to the Senate Judiciary Committee declaring that his independence “will never waiver.” (The only former Gorsuch clerks who did not sign are two currently clerking at the Supreme Court.) The Federalist published a supportive statement from two of his former clerks, one liberal, one conservative. They identified three lessons they learned from clerking for Judge Gorsuch: “the importance of accessible and clear writing, devoid of legalese”; “the importance of stepping back from the law and facts on your side to analyze the holes in your case and the facts and law supporting the other side”;  and he “urged us to pursue a fulsome understanding of the nuance and complexity of the legal and factual issues in each case.”

Pegging Gorsuch. In a widely cited study, political scientists Lee Epstein, Andrew D. Martin and Kevin Quinn predicted that Judge Gorsuch would fall somewhere between Justices Alito and Thomas on the conservative end on the ideological spectrum of current Supreme Court justices (in the same territory that Justice Scalia occupied). Now we have another study, this one by political scientists Ryan Black and Ryan Owens, who argue that Gorsuch in fact would on the the far right on the ideological spectrum–more conservative even than Justice Thomas.

Remembering Justice Scalia. The late Justice Antonin Scalia died on February 13, 2016, just one year ago. Writing in Forbes, Evan Young, a Scalia clerk, remembers the justice and endorses his nominated replacement. “Neil Gorsuch is the perfect next Justice to occupy this special seat, just as Antonin Scalia was the perfect next occupant in 1986.”

Next Steps. We now have a date for the beginning of confirmation hearings before the Senate Judiciary Committee for Judge Gorsuch: March 20. “If the hearing goes smoothly, and the full Senate votes to confirm him soon afterward, Gorsuch could be on the court before the end of the court’s current term in June,” writes Lawrence Hurley of Reuters. In the Chicago Tribune, conservative commentator Marc A. Thiessen predicts that “at a bare minimum, Democrats will maintain a united front to delay Gorsuch’s nomination as long as they can.” This may lead Republicans to choose the “nuclear option” of getting rid of the filibuster for Supreme Court confirmation votes. “If Democrats try to block or even delay a vote, go ahead and push the nuclear button,” urges Thiessen.

Remembering Justice Scalia–One Year Later

Just over a year ago, the nation lost Justice Antonin Scalia, one of the most significant members of the Supreme Court in recent history. “Nino Scalia will go down in history as one of the most transformational Supreme Court justices of our nation,” Justice Kagan stated. Justice Breyer described him as a “legal titan.”

Antonin Scalia was born in 1936 to a college professor and a schoolteacher in Trenton, New Jersey. He received his bachelor’s degree in history from Georgetown in 1957, his law degree from Harvard in 1960. A talented student, Justice Scalia graduated at the top of his high school, undergraduate, and law school classes. After law school, he practiced as a commercial lawyer. Then, beginning in 1967, he taught law at the University of Virginia. In 1971, he went to work for the Nixon and Ford Administrations in a variety of positions; from 1974 to 1977, he served as the Assistant Attorney General for the Office of Legal Counsel. He returned to teaching law, this time at the University of Chicago, in 1977. In 1982, he was appointed to the United States Court of Appeals for the District of Columbia Circuit. In 1986, President Reagan nominated him to the Supreme Court, and the Senate confirmed him with a unanimous vote.

Scalia was a passionate and influential advocate of originalism—a theory of constitutional interpretation based on adherence to the public meaning of the text at the time of ratification. But he would on occasion soften some of the sharp edges of the theory. He called himself a “fainthearted originalist,” by which he meant that he sometimes accepted longstanding precedent even when it did not align with the original meaning of a constitutional provision. His most famous demonstration of his version of originalism came in his opinion for the Court in District of Columbia v. Heller (2008), where he concluded that the original meaning of the Second Amendment was to protect an individual’s right to have a gun in the home for purposes of self defense. He supported his conclusion with pages and pages of history from the Founding Era; Justice Stevens, writing in dissent, felt compelled to write his own originalist analysis, matching Scalia’s historical treatise with one of his own. In addition to his originalism, Justice Scalia was well known for his biting dissents and witty, colorful writing. For a Supreme Court justice, his prose were unusually memorable.

The death of a sitting Supreme Court Justice has become an increasingly rare event. Only one other justice (William Rehnquist) has passed away while still in office in the past half century. (Scott Boddery in the Washington Post considers reasons deaths of sitting justices have become so unusual.)

Scalia’s seat on the Court remains empty today, over a year after his death. Republicans in the Senate refused to hold hearings on President Obama’s nominee, Merrick Garland, claiming that Justice Scalia’s seat should not be filled until after the presidential election. It was an unprecedented, longshot strategy to try to avoid allowing a Democratic President to fill the conservative justices seat. It has appeared to work. The Republicans won the presidency and preserved their Senate majority, and the new President’s nominee to the Court, Neil Gorsuch, a judge whose commitment to originalism and conservative record put him in close alignment with Justice Scalia, is poised to fill the vacant seat.

The Gorsuch Report—Week 2

It has been over a week since President Trump nominated Neil Gorsuch to a seat on the U.S. Supreme Court. The widely respected and impressively credentialed Judge Gorsuch, currently sits on the United States Court of Appeals for the Tenth Circuit.

The nomination was met with the predictable outpouring of support from Republicans, while the response from Democrats has been more mixed. Democrat Senator Dianne Feinstein praised Gorsuch calling him “caring” and “obviously legally very smart.” CBS News reports that Senator Feinstein, the top Democrat on the Senate Judiciary Committee, did not promise a vote for Gorsuch but describes him as “impressive.”

In an article posted on Politico, Democratic Senator Chuck Schumer laid the groundwork for challenge to Gorsuch. The Senate is “doing its job by critically evaluating” Gorsuch, he explains, emphasizing the distinction between the Senate supporting a judge for a federal bench position, and supporting a judge for a Supreme Court bench position.

Feinstein and others have noted Gorsuch’s young age: at 49-years-old, Gorsuch would be the youngest member of the Court by seven years (Justice Kagan, 56, is the next youngest). Since 1900, only 12 justices have been nominated at a younger age than Gorsuch. Current justice, Clarence Thomas, was nominated by George H.W. Bush in 1991, at the age of 43.

Another common topic of commentary is how Gorsuch compares to the late Justice Scalia, whose seat he would take if confirmed. The Huffington Post breaks down Gorsuch’s stance on a variety of constitutional issues, concluding Gorsuch is a “Scalia-in-waiting.” Adam Liptak of the New York Times explains that the most notable difference between the two is that Gorsuch’s “tone is consistently courteous and mild, while some of Justice Scalia’s dissents were caustic and wounding.”

On this blog, Professor Christopher Schmidt discusses  the particular value of the Supreme Court confirmation process during times like these when the value of the legal process and the courts are under challenge.

This Day in Supreme Court History—February 8, 1794

On this day in 1794, Supreme Court arguments opened in the case of Glass v. The Sloop Betsey. A French privateer, Pierre Arcade Johannene, had captured a Swedish-owned vessel—The Betsey—and delivered it to a Baltimore port. Johannene was probably acting under the presumption that the Betsey was a British vessel. France and Britain were at war at the time, and French privateers often brought captured British ships to American ports to determine what to do with the cargo (this despite President Washington’s declaration that America would remain neutral in the conflict).

Upon arriving in Baltimore, there was a dispute over what to do with the cargo on the Betsey. The vessel was from Sweden—another neutral party in the conflict between France and Britain—and the cargo on board belonged to both Swedes and Americans. One American sued in the U.S. District Court in Maryland to recover his share of the cargo, but the court held that it lacked jurisdiction to hear an admiralty dispute. On appeal, the circuit court agreed, leading Glass to the Supreme Court.

After four days of arguments at the Court, Chief Justice John Jay delivered the Court’s unanimous decision on February 19, 1794. The Court held that the lower federal courts had jurisdiction to hear admiralty cases and remanded Glass back to the District Court.

Although the legal question at issue in Glass was a relatively technical jurisdictional question, Jay made clear in his opinion for the Court that he saw at stake much larger questions involving the sovereignty of the new nation. Johannene apparently took the Betsey to Baltimore under the presumption that since no American court had the jurisdiction to decide ownership of the cargo, France would establish a court in the United States to adjudicate these kinds of admiralty disputes. Jay was having none of this. “[N]o foreign power can of right institute or erect any court of judicature of any kind within the jurisdiction of the United States” without express permission. The new courts of the new nation would deal with legal disputes on its shores.

In Praise of the Supreme Court Confirmation Process

It sometimes feels like no one has anything good to say about the Supreme Court confirmation process. Some lament its lack of substance. (Back when she was a law professor, Justice Kagan described it as “a vapid and hollow charade.”) Some worry it has become too partisan. (Just last spring, Chief Justice Roberts said that a “sharply political, divisive hearing process … increases the danger that whoever comes out of it will be viewed in those terms.”)

Despite these criticisms, something the confirmation process does quite well is to focus the nation’s attention on the idea of the rule of law and the values of an independent judiciary. Usually the discussion of these topics are little more than obligatory checkboxes for senators and the nominee prior to rolling up their sleeves and discussing the more contentious issue of constitutional interpretation and hot-button topics such as abortion and gay rights. But today, when people from across the ideological spectrum see the most basic principles of legal process and judicial independence under threat from the executive branch, what before might have felt like platitudes take on new importance.

When John Roberts sat before the Senate Judiciary Committee in September 2005, he gave an opening statement in which he explained that after having served as a lawyer in the Justice Department, he entered private practice, where he argued cases before the Supreme Court. It was not until this point in his career that “I fully appreciated the importance of the Supreme Court in our constitutional system,” he noted.

 Here was the United States, the most powerful entity in the world, aligned against my client, and yet all I had to do was convince the Court that I was right on the law, and the Government was wrong, and all that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a Government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law, any rights are meaningless.

This is indeed a remarkable thing. We are fortunate that most of the time we can take the rule of law for granted. But there are times when this basic, essential principle is threatened, and at times like these we need find opportunities to stop and reflect upon its importance. The upcoming confirmation hearings for Judge Gorsuch will give us this opportunity.



This Day in Supreme Court History—February 1, 1790

On February 1, 1790, U.S. Supreme Court sat for the first time. They met on the second floor of the Merchants Exchange Building in New York City, the nation’s capital at the time.

In addition to Chief Justice John Jay, associate justices William Cushing of Massachusetts and James Wilson of Pennsylvania were present. Missing from the first sitting of the Court were Justices John Rutledge of South Carolina, John Blair of Virginia, and Robert Harrison of Maryland.

The scene at the Court’s scheduled opening on February 1 was “uncommonly crowded,” according to one press account. Among those in attendance were New York City’s mayor, the federal judge for the district of New York, the Recorder of New York, and the Marshal of the district of New York.

The Court dedicated its first sessions to organizational proceedings. The justices appointed a court crier and a clerk, and admitted lawyers to the bar. The Court heard no cases that day. In fact, it heard no cases during its entire first term. The next year, the Court reconvened in Philadelphia, the new national capital.

This Day In Supreme Court History—January 13, 1988

On this day in 1988, the Court decided Hazelwood School District v. Cathy Kuhlmeier, holding that students do not have a First Amendment right to publish a school newspaper free from school administrator editorial oversight.

The Spectrum, the school newspaper of Hazelwood East High School in Missouri, was written and edited by students. In May 1983, the school principal ordered the editors to withhold articles dealing with divorce and teenage pregnancy that he found inappropriate. Cathy Kuhlmeier and two other students sued the school district. The district court held that the school district had not violated the First Amendment. The Eighth Circuit Court of Appeals reversed.

In its 5 to 3 decision, the Supreme Court held that the students’ First Amendment rights were not violated. The majority opinion, written by Justice Byron White, gave the following reasons for the decision. First, the student newspaper was not a public forum. The school administrators had never demonstrated an intent to open it to “indiscriminate use” by student reporters and editors, or by the student body. Rather, they used the paper “as a supervised learning experience for journalism students.” Thus, school officials could regulate the contents of the paper “in any reasonable manner.” Second, educators do not violate the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored activities when “their actions are reasonably related to legitimate pedagogical concerns.” And third, in this case, the principal’s editorial deletions were reasonable.

In dissent, Justice Brennan stated that the principal had “violated the First Amendment’s prohibitions against censorship of any student expression that neither disrupts classwork nor invades the rights of others, and against any censorship that is not narrowly tailored to serve its purpose.” He wondered whether the reasoning of the majority’s opinion meant that administrators could censor a student who says “socialism is good” in a political science class or a “gossip who sits in the student commons swapping stories of sexual escapade.” He warned that recognizing the educator’s “undeniable, and undeniably vital, mandate to inculcate moral and political values” not be understood as “a general warrant to act as ‘thought police’ stifling discussion of all but state-approved topics and advocacy of all but the official position.”

This Day in Supreme Court History—January 11, 2000

On this day in 2000, United States v. Morrison was argued in front of the Supreme Court. Morrison was a constitutional challenge to a section of the Violence Against Women Act of 1994 (VAWA) that provided a civil remedy for victims of gender-motivated violence by allowing them to sue for damages in federal court. The question for the Court was whether Congress had the authority to enact this provision under either the Commerce Clause or the Fourteenth Amendment.

In 1994, Christy Brzonkala, a Virginia Tech student, became the first person to file a Federal lawsuit under VAWA. Brzonkala initially filed a university complaint against two fellow Virginia Tech students, football players Antonio Morrison and James Crawford, alleging that they sexually assaulted her. After a school hearing, the complaint against Crawford was dropped, while Morrison received a one-year suspension, which was withdrawn shortly before the start of the upcoming football season because school officials found the punishment “unduly harsh.” Brzonkala turned to the courts. After a Virginia grand jury failed to return criminal charges for either Morrison or Crawford in 1996, she filed a federal lawsuit against Morrison, Crawford, and Virginia Tech under the newly enacted VAWA.

Morrison’s lawyers argued that the provision allowing Brzonkala to pursue this federal lawsuit was unconstitutional because Congress lacked the authority to enact such a provision under either the Commerce Clause or the 14th Amendment. The district court agreed and dismissed the suit. Brzonkala appealed, but the Fourth Circuit  affirmed, explaining, “Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded.”

At oral arguments at the U.S. Supreme Court, the conservative justices pressed Brzonkala’s lawyer, Julie Goldscheid, about the limits of her reading of of the commerce power. “The justification for the statute that you’re now giving us,” Justice Scalia argued, “is a justification that would allow general Federal criminal laws on all subjects because all crime affects interstate commerce.” Morrison’s lawyer, Michael E. Rosman, faced similar slippery slope concerns from the other direction. Justice Breyer wondered whether the more limited view of the commerce power he advocated meant that if “people are in their own houses cooking up biological warfare or it turns out that in their own fireplaces, they pollute the air in a way that will, through global warming, swamp the east coast” then “Congress is powerless to act?”

The Supreme Court issued its decision in Morrison on May 11, 2000. With a 5-4 vote, the justices affirmed the decision and reasoning of the Fourth Circuit, holding the civil remedy unconstitutional under both the Commerce Clause and the 14th Amendment rationales. Chief Justice Rehnquist wrote the majority opinion, in which he rejected the idea that “Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” The commerce power, he explained, “requires a distinction between what is truly national and what is truly local. He also held that the enforcement clause of the Fourteenth Amendment did not give Congress the power to enact the civil remedy provision, since the Fourteenth Amendment regulated constitutional violations by government actors. Morrison was a private citizen, and Justice Rehnquist concluded that there was insufficient evidence that state governments were unconstitutionally discriminating in their enforcement of protection against gender-motivated violence.

Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, wrote the dissent, arguing that Congress had authority under the Commerce Clause to pass the civil remedy provision. He cited congressional findings that “crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce.”

While Morrison struck down the civil remedy provision, the body of VAWA remained intact. It provided federal funding for the prosecution of gender-motivated violent crimes, established the Office on Violence Against Women within the Department of Justice, and provided resources for victims of gender-motivated violence, like the National Domestic Violence Hotline. President Obama signed the Violence Against Women Reauthorization Act of 2013 on March 7, 2013, which reaffirmed VAWA and also expanded federal protections and resources apply to LGBT individuals, Native Americans, and immigrants.

This Day In Supreme Court History—January 10, 1984

On this day in 1984, Strickland v. Washington was argued at the Supreme Court. This case considered what it meant for a criminal defendant to have the “effective assistance” of counsel, which the Court had previously ruled the Sixth Amendment required.

David Washington waived his right to a jury trial and pleaded guilty to three murders in a Florida court. The judge sentenced him to death. After unsuccessfully appealing in state courts, he took his claim that he lacked effective assistance of counsel at sentencing to federal court. He lost again in the district court, but the U.S. Court of Appeals for the Fifth Circuit reversed. The Supreme Court then granted certiorari.

At the Supreme Court, Washington’s lawyer, Richard Shapiro, argued that Washington’s defense counsel admitted that he felt helpless upon learning of his client’s murder confessions and this was why he did no independent investigation into his background. The lawyer had no “strategic or tactical choice for this this total lack of investigation,” Shapiro explained to the justices. “When his client’s life was at stake,” this lawyer “could not point … to a single shred of independent evidence that would have advised the judge of a fuller understanding of who David Washington is.”

If Washington’s lawyer had conducted a proper investigation, Shapiro argued, he would have discovered psychiatric and psychological evidence showing “child abuse, deprivation, and neglect as a youth.” When “combined with the extraordinary pressures that were placed on Mr. Washington at the time of the crimes,” this  “led to the severe mental and emotional distress which resulted in his breakdown during that period of time” when the murders took place. A skeptical Justice Rehnquist asked whether a jury would really “buy that.” The defense counsel had failed to present supporting facts, Shapiro responded, and that had the potential to “make the difference.”

Shapiro argued that the Sixth Amendment demanded a test for the adequacy of counsel that was focused on the “impairment of the defense,” rather than the outcome of the case. An outcome determinative test, he argued, “assumes the defendant could have a fair trial with incompetent counsel.” A defense “counsel laboring under a sense of hopelessness,” as Washington’s lawyer was, “ is not the zealous advocate that the Constitution requires and that the sacred professional trust of an attorney requires.” Chief Justice Burger worried that such a standard would “eliminat[e] perhaps two thirds of all the criminal cases that come to trial, at least half.”

Attorney Carolyn Snurkowski argued on behalf of Charles Strickland, the superintendent of Florida state prisons. She laid the blame for the outcome of the trial squarely on Washington. He had acted contrary to the advice of his lawyer by confessing, pleading guilty, and waiving sentencing proceedings. She derisively summarized Washington’s position: “Although I pled guilty, I have no complaints about [my lawyer’s] preparation for trial, although I cut him off at the knees with regard to presenting my case to a jury or to a judge, he was ineffective at the sentencing phase because he did not do certain things.” Snurkowski argued that Washington failed to make a specific allegation about his lawyer’s competency and that he failed to demonstrate that the alleged incompetence led to prejudice or changed the outcome of the case.

On May 14, 1984, the Court ruled, by an 8-1 vote, against Washington. (Justice Marshall dissented.) In her majority opinion, Justice O’Connor held that a court should only find a Sixth Amendment violation for ineffective assistance of counsel in cases where (a) the lawyer’s performance was deficient, meaning that the lawyer failed to meet an “objective standard of reasonableness”; and (b) the deficient performance prejudiced the defense enough to deprive the defendant of a fair trial, which requires that the defendant shows a “reasonable probability” that the result would have been different if the attorney had not erred. The Court found that Washington failed to meet this demanding standard. He would be executed two months later.

This Day in Supreme Court History— January 6, 1964

On this day in 1964, one of the Supreme Court’s most significant First Amendment cases, New York Times v. Sullivan, was argued.

The case began on March 29, 1960, when a group of civil rights activists ran a full-page fundraising advertisement in the New York Times. Martin Luther King Jr. was facing a trial in Alabama court on charges of tax evasion and perjury, and the advertisement solicited donations to help fund his legal defense. Titled “Heed Their Rising Voices,” the advertisement accused Alabama of prosecuting King in retribution for his civil rights activism. “Their strategy is to behead this affirmative movement and thus to demoralize Negro Americans and weaken their will to struggle,” it declared.

The advertisement also included descriptions of white southern officials repressing the student lunch counter sit-in movement that was then spreading across the South. Among the accusations was that, following a civil rights protest in Montgomery, “truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus” and then the students’ “dining hall was padlocked in an attempt to starve them into submission.”

Although never mentioned by name, Montgomery city commissioner L.B. Sullivan filed a libel suit against the New York Times and four black Alabama ministers whose names were among those listed as signatories to the advertisement. Sullivan argued the advertisement defamed his reputation and that various factual errors in the advertisement—the police never surrounded the campus or padlocked the dining hall, for example—prevented the defendants from claiming truth as their defense. Sullivan won a $500,000 judgment at trial, which the Alabama Supreme Court subsequently upheld.

At the Supreme Court, Montgomery attorney M. Roland Nachman Jr. represented Sullivan. Nachman highlighted the numerous vague referents in the advertisement, many of which, he insisted, could have been understood to be pointing toward Sullivan as responsible for oppressive acts that had not actually taken place. He also noted that the newspaper had neglected to follow its own advertising vetting standards. Furthermore, Nachman argued that no court had ever made a distinction between libel of a private person and libel of a public official—which was basically what the Times was demanding.

Columbia law professor Herbert Wechsler represented the New York Times. He insisted that nothing in the ad necessarily pointed to Sullivan as being responsible for the police department’s actions, that the instructions given to the jury were too vague, and that the First Amendment required the press be protected against suits such as this, which was intended to silence political criticism.
On March 9, 1964, the Supreme Court ruled, 9-0, in favor of the New York Times. In his opinion for the Court, Justice Brennan wrote that a public official may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This was the first time that the Court invoked the First Amendment to check libel actions.

“Another milestone in the long fight for freedom of the press and freedom of speech has been set up by a unanimous decision of the United States Supreme Court,” praised the Chicago Tribune editorial board, which was generally critical of the Warren Court’s doctrinal innovations. “The effect of the decision is to reaffirm the constitutional right of every citizen to criticize the government and officials of government.”