All posts by Chris Schmidt

OT 2017, Weekly Roundup

Oral Arguments Review: Week of January 8, 2018

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Last week’s Supreme Court arguments featured the Fourth Amendment, voting rights, and disputes between states over water. On Monday, the Court heard arguments about two Fourth Amendment cases involving vehicles. First, the Court heard Byrd v. United States in which the issue was whether, under the Fourth Amendment, the driver of a rental car whose name is not on the rental agreement but has permission of the renter has a reasonable expectation of privacy. Byrd argued that a rental car agreement is not determinative of the scope of a driver’s constitutional rights. And as the American Civil Liberties Union argues in an amicus brief it submitted with the National Association of Criminal Defense Lawyers, the government’s position that drivers unauthorized by the rental car companies have no Fourth Amendment rights would have a disproportionate effect on black and Hispanic drivers, who are more likely to rent cars than white people.  The New York Times reports on that brief and other arguments.

As The New York Times also reports, during oral argument, however, Justice Kennedy described how Byrd waited outside of the rental facility while his girlfriend signed the agreement. Justice Kennedy said that it seemed as though he didn’t want to have his name on the rental agreement even though it appeared as though he would be the only one driving the rental car.

In the other Fourth Amendment case, Collins v. Virginia, the Court was asked to consider the scope of the Fourth Amendment’s “automobile exception,” which allows a police officer to search a vehicle without first getting a warrant to do so if the evidence of criminal activity could be removed from the premises because of the vehicle’s mobility. Collins argued that the automobile exception should not apply when the vehicle is parked in the “curtilage,” nor area surrounding the home. Vice.com predicted that a win for Virginia in this case “could dramatically curtail the protections of the Fourth Amendment. And Reason.com notes, unsurprisingly, that “several justices seemed skeptical of Virginia’s reasoning.” The justices may not reach the underlying issue, however, Towards the end, the attorney representing Virginia admitted that the intermediate state appellate court decided the case on the grounds that there were exigent circumstances. In response, Justice Ginsburg said that the Virginia Supreme Court had not addressed this question, and so the Supreme Court might have to remand the case because they could not take on that issue.

In the first water rights case of the week, Texas v. New Mexico and Colorado, the Court heard oral arguments over a dispute about water allocation from the Elephant Butte Reservoir between Texas, and New Mexico and Colorado. Governed by the language of Rio Grande Compact, the states must adhere to the specific language of all signatories of the document, of which the federal government is not included. The specific issue before the Court had to do with whether the federal government can nonetheless intervene in the lawsuit.

National Public Radio affiliate KUNM broke down the history of this case and recounted this week’s oral argument. Aside from the question of federal intervention, this case has much history behind it; from Western water rights to “the role Reclamation plays in both Texas and New Mexico.” KUNM notes that the stake are high. New Mexico “has already spent $15 million on staff and legal fees. And if the Supreme Court decides in favor of Texas, New Mexico could owe a billion dollars or more in damages and be forced to curtail groundwater pumping…”

In its second water rights case of the week, the Court heard arguments in Florida v. Georgia. This case involves Florida suing the state of Georgia over their consumption of water in the Apalachicola-Chattahoochee-Flint basin. Florida argues that the Army Corps of Engineers, which controls several federal dams flowing into the basin, should allocate more water to Florida to assist freshwater fisherman in preventing droughts, thus hurting business.

The special master–appointed by the Supreme Court, tasked to study water allocation among the rivers that flow into the basin–concluded that Florida was hurt by not having enough water but did not have enough evidence to prove that water reallocation from Georgia would alleviate the issue. During oral arguments, the Washington Post reports, Justice Kagan seemed sympathetic to this conclusion this claim,  stating to the lawyer representing Florida that “there seems to be a real dearth of record evidence specifically quantifying how much more water you would have gotten, exactly what benefits would have followed from that.” On the other hand, Chief Justice Roberts commented that a ruling for Florida will help build a case as to why the state should be allocated more water. However, the looming question before the Court and both states is the gauntlet of federal statutes and congressional mandates that the Corps must obey to meet its obligations as the de facto managers of water allocation for the basin.

Finally, on Wednesday, the Court heard oral arguments in Husted v. A. Philip Randolph Institute, which addresses the merits of an Ohio law that removes voters from the rolls. We’ll cover that argument in more detail in a separate post.

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. It was overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Civil Rights, History of the Court

Martin Luther King Jr., the Law, and the Courts

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In honor of Martin Luther King Jr Day, we are reposting this essay by ISCOTUS Co-Director Christopher W. Schmidt.

Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.

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King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.

Law as an Obstacle to Racial Justice

Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.

Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.

King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”

A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”

In this particular case, King might have won in the court of public opinion and certainly in the court of history, but he lost in the highest court of the land. When the Supreme Court finally decided to hear an appeal of the conviction of civil rights protesters for violating a state court injunction ordering them to refrain from demonstrating, the Court ruled 5-4 against the civil rights protesters. King and his cause generally fared well before the Supreme Court, but this case was one of a handful of exceptions. Justice Stewart, writing for the Court, reprimanded the protesters in Walker v. Birmingham:

This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

For King, unjust laws—and the courts that enforced them—were obstacles in the cause of racial justice.

Law as an Opportunity for Advancing Racial Justice

And then there were the laws that King and other civil rights activists wanted: school desegregation orders; non-discrimination requirements for restaurants, hotels, and private employers; voting rights protections. King’s attitude toward these kinds of civil rights laws is also quite interesting.

King understood court decisions and legal reform as a central component of broader political and social struggle. Although he certainly saw the importance of courtroom decisions and legislation, when he talked about the power of law, he tended to focus on the difficult work required to give life to basic legal principles. Judicial and legislative breakthroughs were not just moments for celebration. They were calls to action.

King’s sometimes tense relationship with civil rights lawyers helped shape his attitude toward the law. From the start of his civil rights career, King recognized his debt to the civil rights lawyers. In December 1955, on the eve of the Montgomery bus boycott that first brought him to the nation’s attention, he gave a passionate speech in which he framed boycotters’ cause as building on the long work of civil rights lawyers, particularly the dramatic NAACP victory in Brown the year before. “If we are wrong,” he declared, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Furthermore, civil rights lawyers played a critical role in the eventual triumph of the boycott. The boycott was teetering on the brink of failure, faced with a potentially crippling legal challenge to the carpool system on which the boycotters relied, when news arrived that the Supreme Court had struck down the segregated bus system as unconstitutional.

Yet King also sought to distance himself from the NAACP and its litigation-based tactics. There was an element of inter-organizational rivalry at play here—King’s SCLC competed with the NAACP for attention and funds. There was also an element of a generational divide at play, as King became more closely aligned with the younger element of the movement that was committed to direct-action protest and lashed out against the legalistic tactics favored by the older civil rights activists.

The work of lawyers was important, King stressed, but it must not dominate the energy of the movement. Direct-action protest was both an extension of, and an alternative to, the NAACP’s project of school desegregation litigation, which by the late 1950s had largely stalled in the face of obstructionist legal maneuverings. A new wave of civil rights protest emerged, sparked by the student lunch counter protests of 1960 and motivated in large part by frustration with the slowness of legal reform. To understand what drove African Americans to take to the streets to demand their rights, King explained, “[o]ne must understand the pendulum swing between the elation that arose when the [school desegregation] edict was handed down and the despair that followed the failure to bring it to life.” He critiqued what he saw as an overly idealistic vision of the law that the NAACP lawyers relied upon in making their case for Brown. “When the United States Supreme Court handed down its historic desegregation decision in 1954, many of us, perhaps naively, thought that great and sweeping school integration would ensue.”

Injustice might find expression in unjust laws, but King emphasized that the roots of injustice are deeper. For King, the law by itself was limited in its ability to affect hearts and minds; to truly uproot entrenched patterns of inequality, one must acknowledge the limits of legal reform. African Americans “must not get involved in legalism [and] needless fights in lower courts,” King warned, for that was “exactly what the white man wants the Negro to do. Then he can draw out the fight.” This was the harsh lesson of Brown and massive resistance. “Our job now is implementation. . . . We must move on to mass action . . . in every community in the South, keeping in mind that civil disobedience to local laws is civil obedience to national laws.”

One of King’s contributions to the struggle for racial equality was his passionate skepticism toward the efficacy of legal change when it was unaccompanied by organized social action.

ISCOTUS Co-Director Christopher W. Schmidt is Professor of Law and Associate Dean for Faculty Development at IIT Chicago-Kent College of Law. His book, The Sit-Ins: Protest and Legal Change in the Civil Rights Era, is about to be published by the University of Chicago Press.

Justices, SCOTUS Fun Facts

Spilling the Beans on Justice Alito

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Like many of us, Justice Samuel Alito loves his coffee. In fact, he even has his own blend. In 2000, when he was a judge on the Third Circuit, his clerks decided to give him a surprise birthday present by getting a local coffee company, T.M. Ward Coffee, to come up with a special blend of coffee named after him: Judge Alito’s Bold Justice Blend Coffee.

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Then-Judge Alito used to regularly stop by the coffee shop, located in Newark, New Jersey, near his Third Circuit chambers, for a cup. He apparently also likes to give it as a gift; one Christmas he bought 44 pounds of beans his blend. The Alito blend is a mix of dark Papua New Guinea, Celebes Kalossi, Java, Italian roast and espresso beans. The company owner described it as “strong in the cup with some sweetness and a winey aftertaste.” One reporter found it ” strong and smooth, though packing a hidden punch that had an overcaffinated reporter wishing she’d shown some restraint.” For those who visit the coffee shop, just say “Give me an Alito” and you too can try a cup of the bold brew.

Conference Report, OT 2017

Conference Report: January 5, 2018 Conference

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On Monday, the Supreme Court gave a death row inmate another chance to persuade the federal courts to consider whether his sentencing proceeding was infected with racial bias. The opinion in this case,  Tharpe v. Sellers, was issued as part of the Order List from the Court’s January 5, 2018 Conference. The Court did not otherwise add any new cases to its docket, although it did call for the views of the Solicitor General in three cases.

In Tharpe v. Sellers, a habeas corpus case, the Court remanded the case for further consideration of whether the petitioner is entitled to a certificate of appealability (COA). (Unlike most litigants, habeas petitioners who are challenging state court convictions or sentences can appeal only if they can make “a substantial showing of the denial of a constitutional right.”) As the ABA Journal reports, Keith Leroy Tharpe was convicted of the 1990 murder of Jaquelin Freeman during the commission of the kidnapping and rape of his estranged wife. He was sentenced to death in early 1991. According to the Washington Post, Tharpe was set to be executed in late September, but the Supreme Court issued a temporary stay based on a claim of racial bias by the jury. Monday’s opinion went further, citing a signed affidavit from seven years after Tharpe’s conviction in which a white juror made such statements as “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; and “[a]fter studying the Bible, I have wondered if black people even have souls.” The Court held that since the juror had never retracted the affidavit, there was a strong factual basis for the argument that Tharpe’s race affected the juror’s vote for the death penalty.

Justice Thomas dissented, joined by Justices Alito and Gorsuch. In the dissent, Justice Thomas questioned why the Court would engage in “this pointless exercise” stating that the remand will not stop Tharpe’s ultimate execution and instead only delays justice for Jaquelin Freeman. Justice Thomas noted  that the jury took only two hours to return a unanimous death sentence and pointed out that the juror in question signed a second affidavit in which he stated that he voted for the death penalty not because Tharpe was black, but because the evidence at trial justified the punishment and Tharpe showed no remorse. In addition, the second affidavit explained that the juror had been drinking when he signed the first affidavit and claimed that his statements had been taken out of context.

The majority and the dissent agree that it is unclear whether Tharpe will be able to clear the bar to receive a COA, despite the juror’s affidavit. But the majority still held that, based on the “unusual facts” of the case, the Eleventh Circuit should reconsider Tharpe’s request for a COA. CNN discusses the case here.

When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court is requesting that the Solicitor General file an amicus brief to explain the United States’ view on whether the case deserves review. This most often happens in cases where, although the United States is not directly involved as a party, federal interests are significantly affected or the federal government possesses particular expertise. More information about CVSGs is available here.

In Dawson v. Steager, the question presented is whether the doctrine of intergovernmental tax immunity based on the precedent set in Davis v. Michigan Department of Treasury (1989) bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees based on the source of their retirement income. The precedent set in Davis was that a state can tax federal employees’ income only “if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation” – meaning that unless there is a significant difference between the state’s employees and federal employees, there can be no differentiation in tax exemption status.

In this case, James Dawson was a U.S. Marshal when he retired from the U.S. Marshal Service in 2008.  Under West Virginia law, Mr. Dawson should be able to exempt a portion of his retirement benefits from his state taxable income.  State law enforcement retirement recipients, however, are allowed to exempt all of the received benefits from their retirement plans from their taxable state income. The Dawsons have requested that the Supreme Court hear their case, and argue that West Virginia’s tax law discriminates against federal employees by favoring similarly situated state employees. The respondent in this case, State Tax Commissioner of West Virginia, Dale W. Steager, has argued that a Supreme Court review is unnecessary because the group of exempted state employees is so narrow that the state’s tax law does not discriminate against federal employees or provide state employees with a blanket exemption.

The question presented in Herrera v. Wyoming is whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest violated the Crow Tribe of Indians’ rights to hunt on the “unoccupied lands of the United States,” as established by federal treaty in 1868, thereby permitting the 2017 criminal conviction of a Crow member who engaged in subsistence hunting for his family.

In 1868, the Crow Tribe of Indians ceded to the United States most of their land (much of which was located in the present-day states of Wyoming and Montana) through the 1868 Treaty With The Crows. In exchange for the land, the 1868 Treaty created the Crow Indian Reservation along what is now Montana’s southern border and provided for payments, goods, and federal protection of the Crow Tribe members and remaining lands. Additionally, the 1868 Treaty provided that the Crow Tribe would have the right to “hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists [. . .] on the borders of the hunting districts.” In 1890, Wyoming became a state.  In 1891, Congress enacted the “Forest Reserve Act” which created the framework for the establishment of the National Forests. This Act provided that “nothing in this act shall change, repeal, or modify any agreements or treaties made with any Indian tribes.”  In 1897, the Bighorn National Forest was created adjacent to the Crow Reservation on the Wyoming side of Montana’s southern border.

In 2014, Petitioner Clayvin Herrera and other members of the Crow Tribe were hunting on the Crow Reservation. While following a small herd of elk, the group crossed into the Bighorn National Forest. The group shot three elk and returned to the reservation with their kill. Mr. Herrera was subsequently tried and convicted of two crimes under Wyoming law for the unlawful hunting of elk in the National Forest. Mr. Herrera was prohibited from asserting the treaty right as a bar to prosecution, a decision which was affirmed by a Wyoming appellate court. These decisions were based on a 10th Circuit case from 1995, Crow Tribe of Indians v. Repsis, in which the court held that the “Tribe’s right to hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into the Union.” 73 F.3d 982, 992 (10th Cir. 1995). The court continued by saying that the Creation of the Bighorn National Forest in 1897 “resulted in the ‘occupation’ of the land” and therefore also invalidated the Crow Tribe’s off-reservation hunting rights from the 1868 Treaty.

Mr. Herrera argues that Repsis was incorrectly decided by the Tenth Circuit, and that his rights – and the rights of other Native Americans who are bound by similar language in treaties with their tribes – were not abrogated either by the admission of Wyoming into the Union or by the creation of Bighorn National Forest. Wyoming, the respondent, asserts that the real issue is whether the doctrine of collateral estoppel, on which the lower courts relied, precludes Mr. Herrera from relitigating the Crow Tribe’s hunting rights within Wyoming. Wyoming also argues that the 1868 Treaty expired by its own accord and is in no way being abrogated by the State of Wyoming. Finally, Wyoming contends that the language in the 1868 Treaty is not widely replicated in other treaties with Native American tribes, so any decision will have limited precedential value.

The question presented in Fourth Estate Public Benefit Corp. v. Wall-Street.com is whether a copyright claim has been registered, within the meaning of 17 U.S.C. §411(a), when the copyright holder delivers the required application, deposit and fee to the Copyright Office, as the Fifth and Ninth Circuits have held; or if registration is made only once the Copyright Office acts on that application, as the Tenth and Eleventh Circuits have held.

Fourth Estate, an independent news organization, owns the copyrights to its journalists’ works and licenses them to AHN Feed Syndicate, a cloud-based news organization. AHN then takes the journalism from Fourth Estate and other content producers and licenses it to others. Wall-Street.com was a former licensee of AHN Feed Syndicate’s. Under the terms of the license, if Wall-Street canceled its account with AHN, it was to permanently remove and stop display of all AHN-provided content. However, after canceling it’s account with AHN, Wall-Street continued to distribute and copy 244 of Fourth Estate’s Works. Fourth Estate, which lost in the lower courts, argues that the Supreme Court should grant review to resolve the circuit split regarding when a copyright registration has been made; and further argues that this is a recurring question in most copyright infringement cases. Wall-Street contends that review is unwarranted both because Fourth Estate overstates the importance of the question presented, and because the 11th Circuit’s interpretation of 17 U.S.C §411(a) is correct – an infringement claim can only be made “once registration ‘has been made’ or ‘refused.’”

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and 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.

This Day In Supreme Court History

This Day in Supreme Court History—January 7, 1972

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On this day in 1972, Lewis Powell and William Rehnquist were sworn in as the 99th and 100th members of the Supreme Court.

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They filled vacancies that had been created several months earlier when Justices Hugo Black and John Harlan retired. Both had fading health. Justice Black retired on September 17, 1971, and died just eight days later. Justice Harlan retired September 23, 1971; he died December 29, 1971.

President Richard Nixon nominated both Rehnquist and Powell on October 22, 1971. Nixon, who in his 1968 presidential campaign had been sharply critical of the Warren Court, had already replaced Warren with Warren Burger as Chief Justice. After two failed nominations, he installed Harry Blackmun as an Associate Justice, taking the seat left vacant when Abe Fortas resigned from the Court in 1969.

At the time of their appointments, Powell was a past president of the American Bar Association and one of the country’s leading corporate lawyers; Rehnquist was serving as an Assistant Attorney General in the Office of Legal Counsel. The Senate easily confirmed Powell on December 6, 1971, by a vote of 89 to 1. Rehnquist faced more opposition, most of it focused on his record as an outspoken and dedicated conservative. His paper trail included memoranda he had written as a law clerk to Justice Robert Jackson in the early 1950s in which he expressed skepticism toward civil rights claims. He was eventually confirmed on December 10 by a vote of 68 to 26.

Since they were both confirmed on the same day, who assumed the role of the Court’s junior justice? When two Justices join the Court on the same day, seniority is determined by age. Chief Justice Burger first administered the judicial oath to Powell, who was 64; Rehnquist, at 47, went second, and thereby became the most junior justice on the Court.

Justice Powell also started a new Supreme Court tradition on the day of his confirmation. Prior to taking his oath, he sat in the chair that Chief Justice John Marshall had used, located in front of the bench, below the Clerk of the Court’s desk. All succeeding Court appointees have followed this practice.

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 8, 2018

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The Court begins 2018 with a full schedule of oral arguments on Monday, Tuesday, and Wednesday of next week. Among the most interesting arguments are an important voting rights case and two cases about Fourth Amendment searches involving vehicles.

The Fourth Amendment cases will both be argued on Tuesday. In Byrd v. United States, the Court will consider whether a driver has a reasonable expectation of privacy in a rental car when he has the permission of the renter to drive the car but is not listed as an authorized driver on the rental agreement. More specifically, the question is whether the driver can even claim that his Fourth Amendment rights were violated, based on a doctrine sometimes referred to as “Fourth Amendment standing.” Orin Kerr provides some background on the doctrine and suggests that perhaps the driver’s motives should be relevant:

If we take the fundamental issue to be whether the car was in a practical sense Byrd’s car, then I get different instincts depending on what Byrd was thinking. For example, if Byrd just happened to have borrowed Reed’s rental car, and it just never occurred to him whether the rental car company allowed that, then I can see the car as effectively Byrd’s and it makes sense that Byrd has standing. On the other hand, if Byrd persuaded Reed to rent the car for Byrd because he knew the rental car company wouldn’t rent to him given his criminal record, then it seems weird to see the car as effectively Byrd’s and quite odd to say he has standing.

Also on Tuesday, the Court will hear about the scope of “automobile exception” to the Fourth Amendment right to be protected against unreasonable searches and seizures . Under this exception, as the Court explained in Maryland v. Dyson, if “a car is readily mobile and probable cause exists that it contains contraband, the Fourth Amendment … permits the police to search the vehicle without” a warrant.  The issue in Collins v. Virginia is whether this exception allows a police officer who is not invited and does not have a warrant, to enter private property and search a vehicle that is parked a few feet from the house. Officers were trying to find a motorcycle driver who had been involved in two high speed chases, and were not able to identify the driver visually because his helmet, and ran into Collins at the DMV a few months after the incidents in question. Suspecting Collins, the officers located his residence and saw a motorcycle covered in a tarp parked behind a car on his driveway. One of the officers then entered Collins’ property, without permission or a warrant, removed the tarp, and ran the licence plate of the motorcycle. It was flagged as stolen, so the officer arrested Collins for receiving stolen goods. Collins argues that the trespass was an unconstitutional search, but Virginia Supreme Court held that the officer’s conduct was lawful. A brief submitted by the United States Justice Foundation in support of Collins argues that the automobile exception did not apply to the facts in this case because the officer had no reason to believe that the motorcycle was stolen when he trespassed onto the property. However, Virginia claims that the motorcycle was “readily mobile, parked in a driveway with easy access to the street” and therefore the automobile exception should still apply in this case. Cornell Law Professor Sherry Colb discusses the law — and the odd facts — of the case here.

On Wednesday the Court will hear Husted v. Randolph Institute, which addresses the legality an Ohio law that purges voters from the voting polls if they do not confirm their address. The law allows the Ohio Secretary of State to send postcards to voters who have not voted within the past two years, asking them to confirm their address. The Secretary of State may purge a voter from the list if that voter fails to fill out of the postcard and send it back. The A. Philip Randolph Institute – named after the civil rights activist – among other groups like the ACLU and the Brennan Center for Justice, argues that the Ohio law violates the National Voting Rights Act (NVRA) and the Help America Vote Act (HAVA). Specifically, the NVRA states that an individual may not be removed as a voter “by reason of the person’s failure to vote.” Ohio argues that it is not purging voters because they aren’t voting, but because they aren’t filling out the postcards to indicate their address. The Economist highlights the issues in the case and notes that until the Trump Administration, the Department of Justice (DOJ) agreed with the challengers’ position on how to interpret the statutes at issue. Greg Stohr of Bloomberg showcased one Ohio voter, Larry Hammond, who deliberately chose not to vote in some elections but did not intend to give up his right to vote. Hammond intentionally sat out the 2012 and 2014 elections, but when he wanted to vote on a 2015 ballot measure on marijuana legalization, he discovered he had been purged from the voting rolls.

On Monday, the Court will hear arguments in two cases involving disputes between States over water rights, Texas v. New Mexico and Colorado and Florida v. Georgia. Because the cases involve litigation between states, the Court has original jurisdiction. As a practical matter, as Stephen Wermiel explained on SCOTUSblog, original cases are referred to a special master, who holds a trial and writes a report to the Court. In Texas v. New Mexico the Court will hear oral arguments on the first of two water rights cases. The Court then essentially hears an appeal from that report. The water rights cases tend to be complex and technical. SCOTUSblog summarizes the issues in Texas v. New Mexico and Colorado here and in Florida v. Georgia here.

This post was drafted by ISCOTUS Fellows Zoe Arthurson-McColl and Michael Halpin, both Chicago-Kent Class of 2020, and 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.

History of the Court, SCOTUS Fun Facts

Justice Marshall and Judge Mikva: Justice Kagan Reminisces

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Justice Elena Kagan clerked for two legal legends after she graduated from law school, First, she clerked for Judge Abner Mikva of the United States Court of Appeals for the District of Columbia, and she then went on to clerk for Justice Thurgood Marshall on the United States Supreme Court. During her visit to Chicago-Kent College of Law in October, Justice Kagan talked about those experiences. She noted that Judge Mikva worked in top positions in all three branches of government — before he was a judge, he was a Member of Congress from the Chicago area and he went on to be White House Counsel during the Clinton Administration. Clerking for Judge Mikva. Because of Judge Mikva’s “subtle and penetrating understanding” about government, Kagan herself became “very intrigued by” government and the way it operates. Moreover, she was exposed to fascinating cases because on the D.C. Circuit, where Mikva sat, “the most important cases are about the way government operates.” Personally, Justice Kagan continued, Judge Mikva, was “a wonderful human being” who taught her about the importance of finding good mentors, and she has tried to be a good mentor herself.

When Justice Kagan discussed her time clerking for Justice Marshall, she called him the “the greatest lawyer of the 20th century.” She described him as “just an extraordinary lawyer,” who “decade in and decade out” worked to advance justice. Justice Kagan not only sang his praises in the legal arena but also highlighted his incredible storytelling ability — he could “make you laugh [and] make you cry” in the same story. Justice Kagan noted that she clerked for Justice Marshall toward the end of his career when he was taking stock of his time on the Court which added to it being “an extraordinary experience.” It gave her a “window into some of the most important parts of twentieth century history.”

Justice Kagan has written and spoken about her time with Justice Marshall elsewhere as well. Marshall nicknamed Justice Kagan (who is 5’3”) “Shorty” and “Little Bits.” Marshall stood at 6’2”. Marshall also once called Justice Kagan a “knucklehead,” (a term he frequently called his clerks) when he tasked her with writing a dissent and she told him it would be difficult to find a legal basis to find in favor of the party that he wanted to support.

At the time of Kagan’s clerkship in 1988, the Supreme Court, under Chief Justice Rehnquist’s leadership, was becoming increasingly conservative, so Marshall was “looking for really bright people to kind of put a new charge in him” Marshall biographer Juan Williams was quoted as saying in the New York Times. But that did not mean that Justice Kagan was a clone of Justice Marshall. Indeed, during her 2009 Solicitor General confirmation hearing and later in her 2010 Supreme Court confirmation hearings, Justice Kagan explained that the writings she produced for Marshall reflected her efforts “channel” Justice Marshall. In the latter hearings, she said:

“When I was clerking for Justice Marshall, I was 27 years old, and Justice Marshall was an 80-year-old icon, a lion of the law. … The role of the clerks was to channel Justice Marshall to try to figure out whether Justice Marshall would want to take a case, whether Justice Marshall would think that the case is an appropriate one, and that’s what I did.…I love Justice Marshall; he did an enormous amount for me. If you confirm me you will get Justice Kagan.”

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

Business Law, News Update, OT 2017

Will The Supreme Court Review SEC’s In-House Judges?

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By Harold J. Krent, Dean and Professor of Law, IIT Chicago-Kent College of Law in Chicago.

This post is an abridged version of an article first published at Law360.

Challenges to appointment of U.S. Securities and Exchange Commission administrative law judges (ALJs) have spread across the country. Private parties that have lost on the merits before the SEC have then challenged the legitimacy of those proceedings by asserting that SEC ALJs, as inferior officers, should have been appointed by SEC commissioners instead of by the chief ALJ. Article II of the Constitution provides that inferior officers of the United States can only be appointed by the president, courts of law, or heads of departments, and the SEC conceded that, if the ALJs are deemed inferior officers, then the appointments were invalid.

Article II vests the appointment power in presidents to permit them influence over the vast amount of authority delegated by Congress to agencies in the executive branch. The president has the power to appoint principal officers such as SEC commissioners, and all inferior officers within the agency must be appointed either by the president or the SEC commissioners themselves. In contrast, presidents need not appoint employees because they do not exercise significant authority under the laws of the United States. The appointments clause thereby promotes political accountability.

I, along with others, confidently predicted — at least until last week — that the U.S. Supreme Court would grant certiorari to resolve the split in the federal circuit courts over whether federal ALJs should be considered inferior officers or employees under Article II of the Constitution. Resolving the Article II issue has ramifications for many federal agencies whose appointment of ALJs have not conformed to the appointments clause. The Social Security Administration, for example, employs over 1,400 ALJs. As a practical matter, the ongoing appointments challenges have cast a pall over a wide swathe of current administrative proceedings before federal ALJs.

Review by the Supreme Court seemed likely for another reason. A second and more important question raised by the cases is whether ALJs, if deemed inferior officers, can be protected from “at will” removal in independent agencies such as the SEC and SSA. In an analogous context, the Supreme Court in Free Enterprise Fund held that inferior officers in independent agencies cannot be protected by a “for cause” removal standard because two layers of “for cause” insulation from the president’s removal authority creates an attenuated chain of accountability to the president.  ALJs, however, currently can only be removed for “cause.”

Nevertheless, ALJs arguably need protection from at-will removal in order to assure private entities contesting government action that decision makers in their cases enjoy a measure of independence. Our administrative system of adjudication, in other words, largely turns on a promise of independence at least at the level of the front-line adjudicator, even if not from the agency itself. The agency inherently is political, but not the front-line adjudicator whose factual findings remain in the record no matter what the agency decides and can influence subsequent judicial review. The court may well be tempted to craft a rule that limits Free Exercise Fund, possibly on the ground that the president need not have as close supervision over officers exercising routine adjudicative as opposed to administrative functions. The path toward certiorari seemed clear.

This past week, the U.S. Department of Justice changed course and disavowed the SEC’s earlier position that its ALJs should be considered employees. But, in a surprise twist, the DOJ asked the court nonetheless to grant certiorari.

What will the court do? On one hand, although the case appears moot, perhaps the court can entertain jurisdiction because the parties might still disagree as to the remedy — can the properly appointed ALJ ratify what he had determined earlier without holding yet another hearing. The SEC has not yet stated whether the ALJs have to rehear the cases previously decided, so it seems a stretch for the court to take the case on that basis. And, even if the court accepts the DOJ’s invitation to grant certiorari, the parties are not adverse with respect to the two key issues — the private parties and the SEC now agree 1) that ALJs are inferior officers, and 2) neither side has weighed in on the removal question. At the end of the day, DOJ’s call for review now may be enticing, but traditional principles of restraint likely will result in a denial.

Criminal Law, Fourth Amendment, OT 2017

The End of Miller’s Time?

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By Michael Gentithes, Visiting Assistant Professor, Chicago-Kent College of Law.

The smartphones we carry in our pockets radically simplify our lives, reducing hour-long tasks to seconds and eliminating the need to separately carry a camera, map, book, and audio player. But should they also enable the government to access months of records of everywhere someone went while carrying a phone?

The Supreme Court recently considered that question when it heard oral arguments in the much-anticipated case of Carpenter v. United States. Specifically at issue was the government’s warrantless collection, for 127 days, of a robbery suspect’s “cell site location information”—data showing which cell phone tower the suspect’s phone accessed at particular times, and hence roughly where the suspect was. A bigger principle was also at issue: the claim that when we reveal information about ourselves to third party service providers, we relinquish any expectation that the information is private and will not be accessible to government investigators. That principle, known as the “third-party doctrine,” previously led the Court to permit the warrantless collection of the numbers we dial in our phones (Smith v. Maryland (1979)) and the financial information we disclose to a bank (United States v. Miller (1976)). The question Carpenter asks is whether that doctrine extends to the networked world, and to the government’s collection of data we routinely reveal to technological third parties about our location, shopping preferences, reading habits, and more.

That question matters. Though some might be untroubled by massive data dragnets because they feel they have nothing to hide, concerns about the information we reveal to third parties today extends to more than just embarrassing facts. The complete details of our daily thoughts and actions might be accessible to any government agent willing to look. By creating additional copies of that information, the government generates added opportunities for hackers—or internal whistleblowers—to access and publicize it. That possibility should startle the guilty and innocent alike.

During the Carpenter oral arguments, many of the Justices appeared sympathetic to such privacy concerns. But they failed to coalesce around a guiding principle. Though they acknowledged the limitations of third-party doctrine—which does not extend to medical information provided to one’s doctor, for instance, or the words a suspect says on the phone after dialing a number—they struggled to explain why that data receives Fourth Amendment protection while dialed phone numbers and financial records do not. And without such an articulable guiding principle, it seems arbitrary to place location data derived from cell phone towers in either the protected or unprotected category.

Squaring that circle is a difficult challenge the Justices should not sidestep. Fourth Amendment jurisprudence has been ridiculed as little more than nine people’s rudderless assumptions about the privacy citizens actually and appropriately expect. The Justices should state a principled basis upon which to classify location information—and the slew of other data points modern citizens reveal to third parties—as protected or unprotected. Doing so will require the Justices to acknowledge that informational privacy is a messy, non-binary continuum. Most data points fall somewhere between the wholly private contents of a conversation and the entirely unprotected numbers dialed to arrange it. Data points about our locations in public are one example. Though largely unprotected, locational data conveys some minimal amount of meaning, such that even if a citizen does not harbor a great enough expectation of privacy in each individual data point to render collection of that datum a search, she might have a great enough expectation of privacy in months of aggregated locational data to trigger the Fourth Amendment.

Enunciating such a rule may require reconsideration of previous holdings, especially those claiming that sensitive financial information disclosed to a bank is wholly unprotected. It might also require the Justices to acknowledge that Fourth Amendment jurisprudence is necessarily tentative, and that just as those holdings need revision, their holding in Carpenter may be reconsidered when new technology, and new cases, emerge. But such an acknowledgement simply makes explicit what was already inherent in the common-law-style decisions applying the Fourth Amendment to the modern world. And a genuine effort to craft such a tentative rule will both enhance the public’s security and its regard for the Court.

OT 2017, Second Amendment

Do the Justices Look More Favorably on Gun Regulation than Many Fear?

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By Cody Jacobs, Visiting Assistant Professor, Chicago-Kent College of Law.

Last Monday, the Supreme Court denied certiorari in Kolbe v. Hogan, a Second Amendment challenge to Maryland’s ban on assault weapons and large capacity ammunition magazines. As a result, the Fourth Circuit’s decision upholding the ban was left in place. The Court’s denial is notable because it continues a pattern: after holding that the Second Amendment protects an individual right to keep and bear arms in a pair of cases in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. City of Chicago), the Court has not granted cert in any major Second Amendment case since then despite having numerous opportunities to do so. Unraveling the mystery of why that is may have major implications for the future of Second Amendment litigation.

Kolbe seemed like a particularly plausible vehicle for a cert grant. Although there is no circuit split on the issue—the four federal courts of appeal that have heard Second Amendment challenges to assault weapons bans have upheld them—the Fourth Circuit’s decision upholding Maryland’s law in Kolbe was a little different than the previous decisions. The Fourth Circuit didn’t just uphold Maryland’s law, it held that assault weapons and large capacity ammunition magazines are not protected by the Second Amendment at all. In contrast, the other courts that upheld these bans concluded that such weapons were protected by the Second Amendment, but that the bans could nevertheless survive because of the strong public safety justifications behind them. Thus, Kolbe represented a relatively minimalist reading of Second Amendment rights that would presumably have been more likely to attract the Supreme Court’s attention.

On the other hand, the denial in Kolbe is not that surprising in light of the Court’s history of denying cert in these cases. According to a report from the Giffords Law Center to Prevent Gun Violence, the Court has denied cert in over 70 Second Amendment cases since 2008. This number includes several denials in cases involving perhaps the most litigated Second Amendment issue, the right to carry guns outside the home. Several states have requirements that applicants for concealed carry permits demonstrate a “good reason” that they need such a permit before one may be granted. Gun rights advocates have challenged these laws almost everywhere they exist and, with the exception of a successful challenge in the District of Columbia (discussed below), all of these challenges have been rejected by the courts of appeals and the Supreme Court has refused to grant cert.

This trend—which has resulted in most Second Amendment challenges to gun laws failing—has not gone unnoticed by the Court’s more conservative Justices. For the first five years after McDonald, these denials came without noted dissent. That changed when the Court denied cert in a 2015 case challenging a San Francisco ordinance requiring guns to be locked up when not in use. Justice Thomas, joined by Justice Scalia, dissented from the Court’s refusal to grant cert. That same year, Justice Thomas, again joined by Justice Scalia, dissented from the Court’s refusal to grant cert in a case challenging a city’s assault weapons ban. And just this summer, Justice Thomas, this time joined by Justice Gorsuch, dissented from the Court’s denial of cert in a case upholding California’s “good reason” requirement for concealed carry permits. In that dissent, Justice Thomas complained that the Court’s “decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right” and decried the “inexcusable” discrepancy between cases involving other rights, which the Court hears routinely, and cases involving the Second Amendment, which have not been heard in the Court since McDonald.

“Inexcusable” or not, this trend certainly is not what either side expected to happen in the immediate aftermath of Heller and McDonald seven years ago. So, what does it mean? (Of course, any attempt to read tea leaves from cert denials necessarily comes with all the usual caveats—the Court has repeatedly reminded us that a cert decision is not a decision on the merits.)

Let’s start with what we know. We know that at least two Justices voted to grant cert in some of these cases. It also seems relatively safe to assume that none of the four “liberal” Justices voted to grant cert, likely because they were happy with the results in the lower courts. The question, then, is why didn’t Justice Alito, Justice Kennedy, or Chief Justice Roberts vote to grant cert in any of these cases? All three of them voted with the majority in Heller and McDonald, and Justice Alito actually wrote the controlling opinion in the latter. It is possible that one of them could have voted to grant cert in these cases and for whatever reason choose not to dissent, but, none of them appear to agree with Justice Thomas that the repeated denials are particularly problematic.

The politics around the gun debate has changed significantly since 2010. Even though there has been no policy change at the national level, the political will for greater restrictions on guns surged in response to the Sandy Hook shooting in 2012 and has led to a wave of new gun laws, particularly in blue states. In fact, the law at issue in Kolbe itself was passed in direct response to Sandy Hook. It isn’t a stretch to imagine that the rapid killing of 20 six and seven-year-old children that had such a powerful impact outside the Court might have had an impact inside it as well.

If some of the Justices that formed the majority that recognized an individual Second Amendment right are now having second thoughts, or at least feeling amenable to a narrow reading of that right, that would have major implications for litigation strategy in Second Amendment cases. The few times that gun laws have been struck down by federal courts on Second Amendment grounds, state and local governments have declined to appeal those rulings, likely fearing that they would lose in the Supreme Court and roll back similar gun laws nationally. This happened just recently when the District of Columbia’s “good reason” concealed carry requirement was struck down by the DC Circuit. DC officials decided not to seek cert even though the decision created a circuit split because they were concerned that an unfavorable ruling from the Supreme Court would put similar laws around the country in jeopardy.

However, this caution may not be warranted and may even be counterproductive. The Court’s refusal to grant cert in case after case upholding a wide range of gun laws may show that a majority of the Court at least has serious doubts that these laws violate the Second Amendment. But that majority may not last with President Trump explicitly promising to fill any vacancies that arise during his term with pro-gun justices. The next time a gun law is struck down on Second Amendment grounds, perhaps the state or local government defending that law should seek cert and force those Justices who may be wavering behind the scenes to lay their cards on the table.

Prior to coming to Chicago-Kent, Professor Jacobs was a Staff Attorney at the Law Center to Prevent Gun Violence. His scholarship focuses on the Second Amendment and gun policy.