All posts by Chris Schmidt

History of the Court, This Day In Supreme Court History

On This Day in Supreme Court History—February 5, 1813

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On this day in 1813, the Supreme Court decided Mima Queen v. Hepburn, an appeal of a suit of an enslaved woman who claimed her freedom. The Court rejected her appeal, holding that the hearsay evidence Mima Queen relied on to establish that her great grandmother was a free woman of color who was wrongly enslaved—and therefore that Mima Queen and her daughter should be free—was insufficient.

At trial in Mima Queen’s freedom suit, a witness stated in a deposition that he heard that Mima Queen’s great grandmother, Mary Queen, was from another country and that when she arrived in America “she had a great many fine clothes, and that old William Chapman took her on shore once, and that nobody would buy her for some time, until at last James Caroll bought her.”

The trial court instructed the jury to disregard this deposition if it determined “that the existence of the report was not stated by the deponent of his own knowledge, but from what had been communicated to him respecting the existence of such a report many years after her importation, without its appearing by whom or in what manner the same was communicated to him.” The jury found the evidence insufficient to give Mima Queen her freedom. Her lawyer, Francis Scott Key (most famous as the author of the “Star-Spangled Banner”), appealed to the U.S. Supreme Court.

The Supreme Chief affirmed the lower court’s decision. Chief Justice John Marshall wrote the opinion of the Court.

Although courts had recognized exceptions to the hearsay rule for some “cases of pedigree, of prescription, of custom, and in some cases of boundary,” the Chief Justice declined to make an exception here. He found unpersuasive the argument that knowledgeable sources might be dead and therefore unable to testify:

If the circumstance that the eye witnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained.

The sole dissenter in the case was Justice Gabriel Duvall. Although Duvall wrote very few opinions throughout his tenure on the Court, he felt moved to write a dissent here. The Court should make an exception to the hearsay rule in cases in which freedom is on the line, he insisted. If the courts allowed for hearsay evidence “in cases of pedigree or in controversies relative to the boundaries of land,” then why not when one’s freedom was on the line?

It will be universally admitted that the right to freedom is more important than the right of property.

And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection. A decision that hearsay evidence in such cases shall not be admitted, cuts up by the roots all claims of the kind, and puts a final end to them, unless the claim should arise from a fact of recent date, and such a case will seldom, perhaps never, occur.

Over Duvall’s dissent, the Chief Justice and the rest of the Court sided with property rights over human freedom. What happened to Mima Queen and her daughter after their loss at the Supreme Court is unknown.

 

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

First Amendment

Free Speech, Universities, and Campus Disruption

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A guest post by Professor Sheldon Nahmod, University Distinguished Professor, IIT Chicago-Kent College of Law.

Two propositions

I begin with two fundamental propositions. First, political protests and a free press are the lifeblood of American democracy. Second, the primary purposes of universities are to develop critical intellectual faculties and to advance knowledge: there should be no intellectual “safe spaces” at a university. These two propositions are tied to the self-government and marketplace of ideas functions of the First Amendment.

First Amendment basics

Here are some First Amendment basics. For one thing, when government regulates, it must ordinarily be neutral with respect to the content and, especially, the viewpoint of speech. For another, the First Amendment is not an absolute. Indeed, there are no absolute individual constitutional rights. Further, there are often costs imposed on innocent people, including taxpayers, by the First Amendment. In addition, the First Amendment technically applies only to government regulation; it protects private individuals from the state.

Finally, First Amendment principles, as articulated by the Supreme Court, do not exclusively reflect the exercise of political power, as some assert. These principles have worked well as a general matter to protect diverse viewpoints, and have taken account of political (and economic) inequality to protect the “little guy” and traditional media of communication such as leafleting, demonstrations and the like.

Protests on campus: an all-too-familiar fact pattern

Suppose a controversial and deliberately provocative speaker is invited by students to speak at a facility used for university-wide events. Unless the facility is ordinarily open to non-university events, the invited speaker has no First Amendment right of access to the facility. However, the students who invited him or her have a First Amendment right receive information and hear the speaker’s ideas. (Supreme Court decisions such as Lamont v. Postmaster General (1965), Red Lion (1969), and Virginia State Bd. of Pharmacy (1976) all speak of such a right in readers, listeners and viewers in certain circumstances.)

What are the constraints on the speaker? He or she may not engage in speech directed at inciting unlawful conduct, where the speech is likely to lead to such conduct. Such speech is unprotected by the First Amendment, as are true threats and “fighting words,” although the last has been limited to face-to-face confrontations.

Significantly, the university has an affirmative First Amendment duty to use reasonable means to physically protect the speaker from a hostile audience (Justice Hugo Black’s famous dissent in Feiner v. New York (1951)). That is, the university must try to control the audience before shutting down the speaker for his or her protection.

However, those protesting the speaker have First Amendment rights of their own: what are their limits? The protesters can make their views known but they cannot physically disrupt the speaker. So they may stand silently during the talk, or with their backs to the speaker, and they may even hold placards in opposition. But preventing the speaker  from speaking through continued heckling, or by throwing things or through other violent conduct, is not protected by the First Amendment and can be punished either by discipline or criminal sanctions if they are students, or by criminal sanctions if they are outsiders who are not students. Such conduct is neither protected by the First Amendment nor consistent with the primary purposes of universities.

University officials’ responses to disruption

Of course, it does not follow that universities in this situation will discipline their students or that law enforcement will proceed with criminal prosecutions. University officials often want to avoid or at least minimize controversy. They also have various constituencies: students, alumni, faculty, public opinion and, if public universities, legislatures. And in fairness, it is often difficult in the heat of things to know who the disruptors are and whether they are students or outsiders.

Still, when thinking about university administrators confronting these events, I am reminded of something that Justice Felix Frankfurter wrote long ago about legislators: “One must not expect uncommon courage in legislators.” With respect, it is fair to say the same thing about most university administrators who deal with these situations.

Still, university officials should keep this language from the Supreme Court’s 1957 Sweezy decision in mind:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

 

This post is based on Professor Nahmod’s presentation at a symposium on Free Speech and Campus Disruption held January 25, 2018, at Northwestern Law School. The symposium was co-sponsored by the Academic Engagement Network. It was first posted on Nahmod Law.

News

SCOTUS at SOTU

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Tonight, President Donald Trump will deliver his first State of the Union Address. The address is rooted in Article II, Section 3 of the Constitution, which states that the president, “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.” The president customarily offers an assessment of “the state of the union,” followed by a list of legislative goals for the year.

Chief Justice John G. Roberts Jr., Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg, Supreme Court Justice Stephen Breyer and Associate Justice Elena Kagan attendedthe 2012 State of the Union address.

It’s tradition for the justices of the Supreme Court to sit directly in front of the president during the event. Not all the justices attend, however. Justice Ginsburg will not be attending tonight. Instead, she’ll be at Roger Williams University’s law school giving her own “fireside chat.”

There is no love lost between the president and Justice Ginsburg, of course. During the 2016 campaign, Ginsburg called Trump a “faker,” and Trump countered that her “mind is shot.”

Justice Ginsburg attended all of President Obama’s State of the Union speeches. In 2013 and 2015, she appeared to be dozing off during the events. Ginsburg explained that she “wasn’t 100% sober,” since he had some “excellent California wine” supplied by Justice Kennedy at dinner beforehand. Justice Ginsburg did not attend President Trump’s February 2017 joint address in Congress either, but neither did Justices Samuel Alito or Clarence Thomas. Neither Alito nor Thomas are expected to be in attendance at tonight’s event.

Although partisanship can play a role in the justices’ attendance at the State of the Union, it seems that some justices simply don’t like the event. Justice Antonin Scalia referred to it as a “cheerleading session,” a “childish spectacle.” “You just sit there, looking stupid,” he complained. Scalia’s last attendance at a State of the Union was in 1997. Justice Thomas stated it is “very uncomfortable for a judge to sit there,” and Justice Alito explained in 2010 that he felt “like the proverbial potted plant” while in attendance.

The members of the Court are expected to sit quietly in the midst of a room full of exuberantly partisan politicians. On occasion, however, they have broken from role. In 2010, when he last attended the event, Justice Alito famously shook his head while mouthing the words “not true” when President Obama criticized the Court’s recent Citizens United campaign-finance decision.

Just four of the justices  will be in attendance tonight:  Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Neil Gorsuch.

 

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

 

Conference Report, OT 2017

Conference Report: January 19, 2018 Conference

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On January 19, the Supreme Court held its last Conference until February 16 and on the same day it announced its decision to grant review in the latest travel ban case, Trump v. Hawaii. This case involves one of several legal challenges to President’s Trump third executive order restricting entry into the country primarily by individuals from several majority-Muslim countries. By issuing its latest order granting certiorari on the day of he Conference, the Supreme Court indicated that it would hear Trump v. Hawaii this Term, probably in April, even though it had otherwise finished granting cases for this Term.

President Trump’s first travel ban executive order, issued only a week into his presidency, was quickly enjoined, and was then supplanted by a second order, which was also enjoined. Last June, the Supreme Court agreed to hear the challenge to the second order and issued an opinion narrowing the scope of the lower courts’ injunctions. When the order expired on its own terms in October, the Court dismissed that case as moot. The President issued yet another executive order in September, with a revised list of countries, and no expiration date. Litigation once again ensued. As of now, the Ninth Circuit has upheld a district court’s conclusion that the order is unlawful, and the Fourth Circuit is considering a similar district court ruling, although the Supreme Court stayed the injunctions issued by the  lower courts and allowed the full executive order to go into effect pending its decision. A comprehensive compilation of documents related to the litigation over the executive orders is available at the Lawfare blog. A short summary of the history of the orders and litigation is available at the Civil Rights Litigation Clearinghouse, and a more detailed discussion is available from the Congressional Research Service.

On Monday, January 22, the Court issued the remaining orders from the January 19th Conference, and it added an additional case to its docket, Weyerhaeuser Co. v. Fish and Wildlife Service. Weyerhaeuser centers on the issue of whether the Endangered Species Act (ESA) prohibits private land from being designated as “unoccupied critical habitat” when that land is not being occupied by an endangered species and is not essential to species conservation. The Court must also decide if an agency’s decision regarding exclusion of areas from being designated as critical habitats for economic reasons is subject to judicial review.

The Fifth Circuit Court of Appeals upheld land-use restrictions on private land in Louisiana imposed by the Fish and Wildlife Service (FWS) to protect the dusky gopher frog, a species currently only found in Mississippi. The ESA allows the imposition of land restrictions on unoccupied land if it is “essential” species conservation. The FWS designated the Louisiana land at issue as unoccupied critical habit in order to expand the dusky gopher frog’s domain in efforts to conserve the frog.

The owners of the Louisiana land are fighting the designation because it will reduce the property value by as much as $34 million, and significant modifications will have to be made in order for the frog to be able to habitat there. The owners contend that under the ESA, the FWS must entertain a cost-benefit analysis is this situation, because the high cost to them significantly outweighs the benefits to the frog. The Court of Appeals held, however, that the FWS has full discretion in deciding whether or not to take a cost-benefit approach in making this determination, and that its decision is not subject to review by the courts.

Rich Samp, contributor to Forbes, aired his concerns about the Fifth Circuit’s decision noting it “established a double-standard. It permits environmental groups to seek judicial review when FWS invokes cost considerations as a reason not to impose land-use restrictions, but it denies landowners the right to go to court when FWS reaches the opposite conclusion.” The Cato Institute also reported concerns about the lower court decision, explaining in the ABA Journal, “…the assertion of jurisdiction over land with no connection to a species gives the government almost limitless power to regulate land use.” Check out the Washington Times and the Washington Examiner for more commentary on this case.

This post was drafted and edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019,  ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Carolyn Shapiro.

Justices, This Day In Supreme Court History

On This Day in Supreme Court History—January 26, 1898

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On this day in 1898, Justice Joseph McKenna took his oath of office to serve on the Supreme Court.

Image result for joseph McKenna

President William McKinley nominated McKenna to the Court on December 16, 1897, to fill the seat of Justice Stephen J. Field, who had retired. McKenna was serving as President McKinley’s Attorney General at the time. The Senate confirmed him that same day by a voice vote, over the opposition of lawmakers, newspaper editors, and two federal judges, all of whom believed him unfit for the position.

In a ceremony of the members of the Court, Chief Justice Melville Weston Fuller administered the statutory oath to Justice McKenna in the robing room,.

Then, at noon, the Chief Justice and the associate justices took their seats on the bench. The clerk read Justice McKenna’s commission while McKenna stood. Everybody in the chamber rose and McKenna read the judicial oath. The clerk presented McKenna an open Bible. According to the Buffalo Enquirer, “upon its page [McKenna] imprinted a kiss that could be heard over half the courtroom.”

The court marshal escorted Justice McKenna behind a curtain behind the bench, and the new associate justice appeared at the left of the Chief Justice.

The Buffalo Enquirer account continued:

As he ascended the steps leading to the platform, his hand was warmly clasped by Justice [Edward Douglass] White, who occupied the adjoining chair, and he was formally welcomed to his seat. All the other justices faced the new member and bowed to him, but none shook hands.

The Court then turned to the business of the day.

McKenna would serve on the Court until his retirement in 1925.

 

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

 

 

Justices

Justice Sotomayor on Living with Diabetes

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Last Friday, Justice Sotomayor’s day started with a health scare when paramedics were called to her house to treat her for low blood sugar—a complication of the Type 1 diabetes that she has been living with since she was a child. She recovered quickly after receiving treatment and went to work as usual.Image result for sotomayor

Type 1 diabetes is a chronic condition typically diagnosed in childhood in which the pancreas stops producing insulin, an essential hormone in the body’s energy production processes. For people with type 1 diabetes, low blood sugar can be life-threatening if not recognized and treated quickly.

Justice Sotomayor has been candid about her struggles with the disease, from sharing her self-described “super vigilant” routine to sharing which glucose tablet flavor she most often buys (tropical blast is her favorite). She has said that the risk of situations like last Friday have led her to be more open about her struggles and how she manages her health on a daily basis.

Justice Sotomayor says she shares her challenges and successes in dealing with diabetes in the hope that she can inspire people who live with diabetes and other chronic illnesses. In an interview about her book “My Beloved World,” she explained:

One of the thing I wanted to do in this book, it was first to give young diabetics hope about their own life. And a real belief and understanding that they could do anything they wanted to do in life. Because there are no barriers to what we can accomplish and do. However, it is something that has to be managed in your life. You just can’t ignore it. You have to learn how to take care of yourself. And it’s something that everyone with a chronic disease does. Healthy people are those people who can recognize that disease presents you with a challenge. It challenges you to figure out how to live with it.

 

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

OT 2017, Weekly Roundup

Oral Arguments Review: Week of January 16

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The Court had two days of oral argument last week.

Tuesday, January 16

On Tuesday, the Court heard arguments in Dalmazzi v. United States and Hall v. Hall.

In Dalmazzi (consolidated with Ortiz v. United States and Cox v. United States), the justices considered whether a military judge is statutorily or constitutionally precluded from serving on a military court of criminal appeals (“CCA”) while simultaneously serving an appointment to the United States Court of Military Commission Review (“CMCR”), a statutorily created entity that hears appeals from military commissions. Petitioner Nicole A. Dalmazzi was convicted by a military judge of using Ecstasy, a Schedule I controlled substance. The U.S. Air Force CCA affirmed the findings and sentence of Dalmazzi’s dismissal and confinement for one month. Colonel Martin T. Mitchell participated as a judge on the CCA panel while also appointed as a judge to the CMCR. Dalmazzi (and petitioners in the consolidated cases) believes she is entitled to a new hearing before the CCA because Mitchell’s dual position on the CCA and the CMCR violated statutory and constitutional prohibitions on dual-officeholding, specifically 10 U.S.C. §973(b), a Civil War-era dual officership ban, and the Appointments Clause of Article II of the Constitution.

This case presented “unusual terrain” for the Supreme Court, Ariane de Vogue of CNN noted, because it was brought by military service members. The Court has not addressed such a case in 21 years.

Brian Fletcher, assistant to the U.S. Solicitor General, argued on behalf on the government. The federal statute cited by Dalmazzi, 10 U.S.C. §973(b), does not apply in this case, he argued. It precludes military officers from concurrently holding a “civil office” requiring presidential nomination and Senate confirmation, but the CMCR is not subject to §973(b) because it is a military office. The CMCR “performs a function that military officers have long performed, judging violations of the law or war or other offences triable by military commission,” he told the Court.

Stephen Vladeck, a law professor at the University of Texas School of Law, argued for the petitioners. He countered that the CMCR is a civil office subject to the dual-officeholding prohibition. Congress “created the office by statute,” he explained, “it exercises the sovereign authority of the United States,” and “ it can be held, and, indeed, is held by civilians.”

The Court also gave University of Virginia law professor Aditya Bamzai the opportunity to present his rather striking argument that the Supreme Court should not even be hearing the case. The Court lacked Article III jurisdiction in the case, he argued, because the Court of Appeals of the Armed Forces (“CAAF”), the entity that denied Dalmazzi’s petition for a grant of review of the CCA decision that she is appealing here, is an entity of the Executive Branch and not an appellate court. Justice Ginsburg questioned whether the fact that the CAAF exercises appellate jurisdiction over CCA gave the Supreme Court Article III appellate jurisdiction in the case. Bamzai responded that for constitutional purposes, the Court would be exercising original jurisdiction over a CAAF decision in this case, as it would be the first time an Article III court reviewed its decision. And the Constitution prohibits original jurisdiction in this situation.

In Tuesday’s other case, Hall v. Hall, the Court considered whether, in a single-district consolidated case, the entry of a final judgment in one case makes that case immediately appealable, even if other consolidated cases are still pending in the same district. Petitioner Elsa Hall, acting as the representative of her mother’s estate, pursued an action against her brother, Samuel Hall, who, in turn, filed a separate cause of action against Elsa. The two suits were separately filed in the District Court of the Virgin Islands, which were consolidated pursuant to Federal Rule of Civil Procedure 42(a)(2), which allows the consolidation of cases with “common questions of law or fact.”

Andrew Simpson, representing the petitioner, argued that the Court should adopt a bright line rule for considering consolidated cases, and that when a final judgment in one case is entered, even if other consolidated cases are still pending, the final judgment creates the right for a party to appeal that judgement. He also argued that Rule 42, the mechanism by which the two cases were consolidated, does not merge cases. Justice Kagan challenged Mr. Simpson on his interpretation of the word “consolidate.” “I mean, if you look at Black’s Law Dictionary, it says a consolidation in civil procedure, it defines as the court-ordered unification of two or more actions into a single action. So that’s the Black’s Law Dictionary definition. Same thing. Two becomes one.”

Neal Katyal, representing the respondent, argued that the two cases were consolidated for all purposes, and that when the petitioner attempted to appeal the final judgment in one case, while the respondent’s case against her was still pending, her “maneuver [ran] headlong into determinations by both Congress and this Court that litigants can only appeal generally from final decisions.”

Chief Justice Roberts wondered about the impact of the respondent’s position in a “mass tort situation” in which there are “100 separate cases.” In these cases, parties might have to wait years for final judgments in all of the consolidated cases in the same district before filing appeals, a delay, the Chief Justice noted, that could be “very prejudicial.” Katyal responded that parties in this type of situation could rely on interlocutory appeals, writs of mandamus, and Federal Rule of Civil Procedure 54, which allows a district court to use its discretion to send a case up to the court of appeals.

Wednesday, January 17

On Wednesday, the Court heard arguments in Encino Motorcars v. Navarro, which presents the question of whether service advisors at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.

Paul Clement argued for Encino Motorcars. Clement made a text-based argument that service advisors are “salespeople primarily engaged in servicing automobiles,” and they are therefore within the FLSA exemption for any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements. Justice Kagan challenged Clement by pointing out that most dictionaries define “servicing” automobiles as “repairing, maintain, fixing,” to which Clement responded that Congress intended courts to interpret “servicing” broadly because the exemption includes partsmen, who “are not engaged in getting under the hood and turning the wrenches.”

James Feldman argued on behalf of the respondent service advisors. Feldman also used a text-based argument, claiming that five English dictionaries define “service” as maintaining or repairing. “You don’t maintain or repair a car, in the way people would ordinarily speak, with a pad or a clipboard and a pencil or a telephone, which are the primary tools that service advisors use,” he said. Chief Justice Roberts challenged Feldman by pointing out that service advisors sometimes make cursory checks of cars and make quick diagnoses before sending the cars to mechanics or partsmen, who frequently repair the cars according to the service advisors’ diagnoses. Feldman allowed that service advisors might “make a guess” based on what customers tell them, but this was not servicing the car. When Justice Kennedy asked whether it would be accurate for a service advisor to tell a customer that he is going to supervise the servicing of the car, Feldman replied that such an explanation would be incorrect: they “serve a communications function. They don’t in any sense supervise the mechanic.”

The National Law Journal noted that Justice Kagan wondered why the United States Solicitor General wasn’t part of the arguments considering this was a case “in which one would expect the government to be here.”

Also on Wednesday, the Court heard McCoy v. Louisiana, which presents the question of whether it is unconstitutional for a defense lawyer to concede his client’s guilt over the accused’s express objection. Seth Waxman argued on behalf of Robert McCoy, who was accused of triple murder. Waxman argued that McCoy’s previous lawyer had violated the Sixth Amendment by telling the jury that McCoy was guilty. Chief Justice Roberts and Justice Breyer challenged him on whether a lawyer may admit that his client committed any element of an offense over a client’s objection. Waxman, after being pressed, argued that a trial court should not allow a lawyer to admit that his client committed any element of an offense against the client’s wishes. Justice Breyer suggested that such a stance presents a slippery slope, or as he put it, a balloon, “expanding into we don’t know where what, because they’re filled with elements, the federal code. And before you know it, lawyers will have a hard time defending this person. And you’re walking right into jail when you start telling your lawyer how to run his case.” Waxman responded that the Court does not need to decide whether a lawyer may admit any element of an offense in order to decide the case before them. Justice Breyer noted that “there are about 200,000 criminal cases in the lower courts” and he wondered about the “kind of chaos” that would result, since “there are many, many defendants who go through dozens of lawyers while they’re objecting to this one or that one or the other one.”

Elizabeth Murrill, Solicitor General of Louisiana, argued for the state. She proposed a rule that in a narrow class of death penalty cases lawyers may be required to override their clients regarding trial strategy. When the strategy the client proposes is “a futile charade and requires him to defeat both their objectives of defeating the death penalty,” such a rule should be applied. Indeed, Murrill suggested, a lawyer’s cooperating with such an ineffective strategy would meet the standard for ineffective assistance of counsel. Challenged by Justice Sotomayor as to why the proposed rule should apply only to death penalty cases, Murrill argued that in most cases the rules of professional conduct mandate that an attorney follow his client’s wishes. Several justices pushed back on this point, arguing that the decision of whether to admit guilt in a capital case should be left in the hands of the client and not the lawyers.

This post was drafted by ISCOTUS Fellows Bridget Flynn and Elisabeth Hieber, both Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018 and ISCOTUS Co-Director Christopher Schmidt.

Conference Report, OT 2017

Conference Report: January 12, 2018 Conference

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At its Conference on January 12, the Supreme Court announced that it would hear twelve new cases, including an important Texas voting right case and a potentially significant case about whether states can tax their residents’ purchases from out-of-state vendors.

In Abbott v. Perez, the Court agreed to hear a pair of appeals from the decisions of a three-judge district court to invalidate Texas’s congressional districts. (Three-judge district courts are convened in cases involving constitutional challenges to redistricting plans. Their decisions are appealed directly to the Supreme Court, which does not have discretion to turn them away, although it can summarily affirm or reverse without hearing argument or even issuing an opinion. More information on three-judge district courts is available here.) In Abbott, the lower court concluded that Texas’s redistricting plan was intentionally racially discriminatory, and the Court imposed an injunction demanding an immediate legislative session to redraw the districts.. Amy Howe of SCOTUSblog notes that these grants are unsurprising given the Court’s decision earlier this Term to stay the district court’s injunction.  Redistricting issues are a hot button issue for the Court this term. The Justices have already heard arguments in the Wisconsin partisan redistricting case, Gill v. Whitford and have granted a Maryland redistricting case, Benisek v. Lamone.  And Justin Levitt at the Election Law Blog has the latest on partisan redistricting litigation in North Carolina, where different courts have struck down both the state legislative and congressional maps, although the Supreme Court this week stayed the order to redraw maps

South Dakota v. Wayfair, the Court agreed to consider taxation of online sales. In 1991, in a case called Quill Corp. v. North Dakota, the Court significantly limited the circumstances under which a retailer that is not “physically present” in a state can be required to collect state sales taxes. Since 1991, of course, online commerce has led to a dramatic increase in interstate retail purchases, and many believe that Quill is crippling state treasuries. In the Wayfair case, South Dakota asks the Court to abrogate Quill. As Tax Law Professor Blog reports, thirty-seven tax law professors signed onto an amicus brief urging the Court to take the case and overrule Quill.  Above the Law believes that “[w]e need this case. Our polity needs this case. This case is going to put money back in the hands of state governments that are starved for cash.”

The Court also agreed to hear Washington v. United States, where it will examine a deal that the federal government made with Northwest Indian tribes that they were guaranteed a fair share of fish, which mean that they would get 50% of each salmon run, or less if their needs would be met by a smaller amount. The Court is being asked to answer three questions related to this case:

  1. Whether the right of taking fish meant that the number of fish allocated to the tribes always had to be enough to provide a moderate living;
  2. Whether the district court erred in dismissing the state of Washington’s equitable defenses against the government (asking the court to excuse their actions because the government’s actions were unjust)  when these treaties were signed in the 1850s, told Washington to make salmon culverts in a specific way, and then claimed that these designs violated the treaties previously signed; and
  3. Whether, in requiring Washington to replace hundreds of salmon culverts (costing billions of dollars) that would have no effect on the salmon, the district court violated principles of federalism and comity. Culverts are large pipes that let streams pass beneath roads while blocking salmon trying to migrate, and fixing the ones in dispute in Washington is reportedly going to increase the length of salmon habitat by hundreds of miles and ultimately result in more salmon.

Also on Friday, the Court granted Chavez-Meza v. United States, which looks at proportional sentence reductions under 18 U.S.C. §3582(c)(2). The question in the case is whether a district court must provide an explanation – when the reasons are not obvious from the record – for its decision in cases where it does not grant proportional sentence reduction; or, can the court issue its decision without explanation so long as it “is issued on a preprinted form order containing boilerplate language that the court has ‘tak[en] into account the policy statement set forth in 18 U.S.S.G. §1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable.’” The Court likely took this case to resolve the circuit split on the issue.

In another interesting case from its Friday order list, the Court agreed to hear arguments relating to the Mandatory Victims Restitution Act (MVRA) in Lagos v. United States. The MVRA requires that courts order the defendant to reimburse their victim for expenses relating to attending proceedings related to the offense, such as lost income, travel expenses, and child care. It applies to a variety of federal crimes, such as property offenses, fraud, and some violent crimes. The MVRA is a tool that allows victims to recover for the cost of cooperating with the investigation and prosecution In this case, the Court must decide whether this also covers expenses neither required nor requested by the government, and that were not incurred because of some official government action but for the victim’s own purposes. The defendant-petitioner in this case pled guilty to five counts of wire fraud and one count of conspiracy to commit wire fraud, admitting to misleading General Electric Capital Corporation (GECC) in dealings having to do with revolving loans. In addition to resulting in substantial costs associated with GECC’s internal investigations, the fraud eventually caused Lagos’s companies to file for bankruptcy. At issue in this case is the legal basis for the expenses incurred by GECC as a result of their internal investigation into the fraud.

Summaries of the remaining cases granted on January 12 can be found on SCOTUSblog.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was edited by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

History of the Court, Justices, This Day In Supreme Court History

This Day in Supreme Court History—January 20, 1801

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On this day in 1801, President John Adams nominated John Marshall to be the Chief Justice of the United States.

The vacancy in the Court arose when Chief Justice Oliver Ellsworth resigned on December 15, 1800. Ellsworth was in France, where Adams had sent him to negotiate a treaty to end the 1798-1800 “quasi-war” between France and the United States. His return home was delayed by a case of kidney stones, and he decided it would be best if he resigned from the Court.

Marshall was not Adams’ first choice. Some Federalists senators urged Adams to nominate Federalist stalwart Justice William Paterson. Some suggested that Adams promote Associate Justice William Cushing (five years earlier, Cushing had declined the chief justiceship). Some told Adams he should name himself the new Chief Justice.

Adams eventually settled on John Jay. Jay, who had served from 1789 to 1795 as the nation’s first Chief Justice, was quickly confirmed by the Senate. But Jay rejected the position. Only then did Adams turn to his Secretary of State, the Virginia Federalist John Marshall, who had proven himself a loyal supporter of Adams, an effective diplomat, and a skilled lawyer.

At the time of Marshall’s nomination, Adams was a lame-duck President, having lost the election of 1800 to Thomas Jefferson. Adams and his allies were intent on getting as many Federalist judges appointed before Jefferson and his Democratic-Republicans, who also won control of Congress, assumed power in March 1801. Although Marshall was not the first choice of Adams or other Federalist leaders, they saw his appointment as far preferable to leaving the seat vacant for Jefferson to fill.

Following his January 20 nomination, the Senate quickly confirmed Marshall. On February 4, 1801, Marshall took the oath of office and became the fourth Chief Justice of the United States. He is generally recognized as the most consequential justice in the history of the Supreme Court.

 

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Professor Christopher Schmidt.

OT 2017, Weekly Preview

Arguments: Week of January 16, 2018

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With only two argument days this week, the Court will hear argument in four, quite different cases with issues ranging from arcane civil procedure questions to whether a capital defendant’s lawyer can, in the hopes of avoiding a death sentence, effectively concede guilt against the defendant’s express objection.

The death penalty case is McCoy v. Louisiana, which the Court will hear on Wednesday, January 17, 2018.  The state of Louisiana tried McCoy in 2011 on three counts of first-degree murder for the 2008 murders of Christine and Willie Young – the mother and stepfather of McCoy’s estranged wife, Yolanda – and Gregory Colston, Yolanda’s son. McCoy maintained his innocence, but his lawyer conceded McCoy’s guilt in an unsuccessful attempt to prevent a death penalty sentence. The New York Times has an analysis of the case and its history.

The Washington Post also discusses the case, including quotes from Lawrence J. Fox, a visiting lecturer at Yale Law School who filed a brief on McCoy’s behalf. Fox notes that, “[t]he decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense — a right that personally belongs to the accused.” For similar reasons, the libertarian Cato Institute wrote in support of McCoy.

On Wednesday, the Court will also hear arguments in Encino Motorcars v. Navarro, which presents the question of whether service advisors at car dealerships are exempt from the Fair Labor Standards Act‘s overtime-pay requirements. Respondents sued the employer car dealership, seeking time-and-a-half overtime pay for working more than 40 hours per week. The FLSA exempts from its overtime requirements “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” 29 U.S.C. §213(b)(10)(A). The Ninth Circuit found Respondents non-exempt under a 2011 Department of Labor regulation. The Supreme Court vacated that decision, holding that the Department’s 2011 regulation should not control. The Ninth Circuit again found Respondents non-exempt on remand. The Ninth Circuit also acknowledged again that its holding conflicts with published decisions of the numerous courts, including the Supreme Court of Montana and the Fourth and Fifth Circuits. Bloomberg Law’s Big Law Business predicts that the case could be a harbinger of how the Court interprets exemptions in the future and may implicate some tensions among the Justices over deference to agencies.

On Tuesday, January 16, 2018, the Court will hear arguments for Dalmazzi v. United States and Hall v. Hall. In Dalmazzi (consolidated with Ortiz v. United States and Cox v. United States), the Court will consider whether a military judge is statutorily or constitutionally precluded from serving on a military Court of Criminal Appeals while  simultaneously serving an appointment to the United States Court of Military Commission Review.

Petitioner Nicole A. Dalmazzi was convicted by a military judge of wrongfully using Ecstasy, a Schedule I, controlled substance by. The US Air Force Court of Criminal Appeals (“CCA”) affirmed the findings and sentence of Dalmazzi’s dismissal and confinement for one month. Colonel Martin T. Mitchell participated as a judge on the CCA panel while also appointed as a judge to the United States Court of Military Commission Review (“CMCR”), a statutorily created entity that hears appeals from military commissions.

Dalmazzi moved the CCA to vacate the decisions in her case, on the grounds that Mitchell’s dual position on the CCA and the CMCR violated statutory and constitutional prohibitions on dual-officeholding, specifically 10 U.S.C. §973(b), a Civil War-era dual officership ban, and the Appointments Clause of Article II of the Constitution. Before the CCA ruled on that motion, Dalmazzi filed a petition for a grant of review with the Court of Appeals for the Armed Forces (“CAAF”). The CAAF vacated and then denied Dalmazzi’s petition for grant of review as moot; though Judge Mitchell had been confirmed to the CMCR by the Senate, President Obama did not sign his commission until after the CCA had issued its decision in Dalmazzi’s court-martial. Petitioners thus challenge Dalmazzi’s conviction and also ask the Court to consider whether the CAAF erred in finding the claim moot, arguing that §973(b) is triggered once a military officer “holds” or “exercises the functions of” a civil office; even though his commission was not yet signed by the President, he was still exercising the functions of a CMCR judgeship when the CCA sentenced Dalmazzi.

In addition to considering whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the CCA, the Court must also consider the threshold question of whether it has jurisdiction to review this type of case in the first place. The United States argues that while federal law does allow the Supreme Court to review decisions of the CAAF in certain situations, the governing statute, 28 U.S.C. §1259(3), only allows review of cases in which the CAAF grants a petition for review. Because the CAAF vacated its order granting review of Dalmazzi’s petition and then denied the petition for review as moot, the CAAF did not grant the petition for review and the the government argues that Court does not have jurisdiction to review the decision. Petitioners argue that this interpretation would allow the CAAF to insulate decision from review by the Supreme Court by simply vacating the grant of the review at the end of a decision.

The only amicus brief in this case was filed by Aditya Bamzai, a professor at the University of Virginia School of Law. He argues that the Supreme Court does not have jurisdiction to review decisions from the CAAF because, though called a “court” by statute, it is an entity of the Executive Branch; citing Marbury v. Madison, Bamzai argues that the Court does not have Article III appellate jurisdiction over a body of the Executive Branch. In a very unusual move, the Court granted Bamzai’s motion to participate in oral argument, and will allow him ten minutes to outline his position.

In its second case on Tuesday, Hall v. Hall, the Court will considers whether the holding in Gelboim v. Bank of America, a 2015 case concerning jurisdiction in multidistrict consolidated cases, should be applied in the same way to single-district consolidated cases. In Gelboim, the Court unanimously held that when a district court dismisses the only claim in a case that is consolidated with other actions for pretrial proceedings in multidistrict litigation, the dismissal acts as a final, appealable order, even if not all other claims in the multidistrict litigation had been resolved. Here, the Court must determine whether, in a single-district consolidated case, the entry of a final judgment in one case makes that case immediately appealable, even if other cases are still pending in the same district.

The dispute initially started when the elderly Ethlyn Hall, both in her individual capacity and as a trustee of her inter vivos trust,  filed suit against her son, Samuel Hall, who was acting as her attorney, after she became displeased with his management of property in the U.S. Virgin Islands. Ethlyn moved to Florida to live near her daughter Elsa. After Ethlyn died while the case was pending, Elsa took her place as plaintiff as the representative of Ethlyn’s estate. Samuel then filed suit against Elsa for a variety of causes of action, including intentional infliction of emotional distress allegedly caused by Elsa turning Ethlyn against him. The District Court of the Virgin Islands consolidated the cases pursuant to Federal Rule of Civil Procedure 42(a)(2), which allows the consolidation of cases with “common questions of law or fact.” A jury rejected the estate’s claims, and awarded Samuel $2 million dollars in compensatory and punitive damages against Elsa. The district court entered separate judgments for each action and ordered a new trial for Samuel’s claims against Elsa, after finding the jury might have relied on a legally untenable basis for its finding. When Elsa appealed the judgment regarding the estate’s claims against Samuel to the Third Circuit, the court dismissed her appeal, as a final judgment had not been entered in the retrial for Samuel’s case against her. The Third Circuit emphasized that the circuit does “not employ a bright line rule and instead consider[s] on a case-by-case basis whether a less-than-complete judgment is appealable.”

Elsa, the petitioner in this case, argues that the case-by-case approach employed by the Third Circuit is too uncertain and increases the risk of having an appeal dismissed as untimely if an appellant must wait until all other consolidated cases have been resolved. The petitioner also cites 28 U.S.C. §1291, which provides that a court of appeals “shall” have jurisdiction over a final judgment of a district court. Petitioner argues that this is mandatory language, and the Third Circuit erred in concluding it did not have jurisdiction because of the pending case.

Respondent Samuel argues that, because the cases were consolidated pursuant to Rule 42(a)(2), they should be considered substantively and procedurally unitary, and that the text of Rule 42(a) “indicates that fully consolidated actions formally become a single case.” As such, Samuel argues that fully consolidated cases should be treated the same way as multiple claim actions – “as a single ‘judicial unit’ appealable only when all claims are decided.”

This post was drafted by ISCOTUS Fellows Bridget Flynn and Elisabeth Hieber, both Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.