All posts by Chris Schmidt

OT 2017, Weekly Preview

Arguments: Week of December 4, 2017

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The Court will hear arguments in five cases this coming week, including the blockbuster case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be argued on Tuesday, December 6. (People were already lining up to see this oral argument on Friday.) Masterpiece Cakeshop involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the bakery owner’s sincerely-held religious objection to same-sex marriage. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA). The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the both the free speech and free exercise provisions of the First Amendment. Earlier this year, SCOTUSblog hosted a symposium on Masterpiece Cakeshop, featuring commentary from advocates and legal scholars arguing for both sides of the case. More recently, commentators from both the left and the right continue to weigh in.

On Monday, December 4, the Court will hear oral arguments in an important federalism case, Christie v. National Collegiate Athletic Association. Christie analyzes whether the Professional and Amateur Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature partially repealed certain prohibitions on sports gambling, in 2014. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the repeal violates PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA  (in the language of key federalism precedents New York v. United States and Printz v. United States) unconstitutionally “commandeers” the state regulatory scheme for overseeing sports gambling. The Washington Post and Sports Illustrated both explore the implications of the case.

Also on Monday, the Court will hear arguments in Rubin v. Islamic Republic of Iran. Rubin concerns foreign sovereign immunity where a foreign country is a state sponsor of terrorism. Plaintiffs, eight American victims injured in a terror attack in Jerusalem in 1997, sued Iran under section 1610(g) of the Foreign Sovereign Immunities Act (FSIA) and received a $71.5 million dollar default judgment against the state of Iran. FSIA creates several exceptions to the general rule stipulating that foreign states cannot be sued in U.S. courts, one of which is the “terrorism exception,” allowing private citizens to sue foreign states determined to be sponsors of terrorism. The plaintiffs argue that, to collect on their judgment, the FSIA allows them to attach and execute four collections of ancient Persian artifacts in possession of the University of Chicago and Chicago’s Field Museum of Natural History. The Seventh Circuit, however, agreed with the arguments of the Islamic Republic of Iran, joined by the Field Museum and the University of Chicago, and concluded that the FSIA did not authorize the plaintiffs’ action.

On Wednesday, December 6, the Court will hear arguments for Murphy v. Smith and Marinello v. United States. Murphy considers a provision of the Prison Litigation Reform Act which requires that, when a monetary judgment is awarded to a plaintiff in a prisoner’s civil rights suit, a portion of that judgment “not to exceed 25 percent” shall be applied to pay for attorney’s fees awarded against the defendant. The district court interpreted this to mean that it had discretion to decide what percentage of the damages should be reserved, and ordered that 10 percent of the damages be put towards the fees. The Seventh Circuit reversed, following its precedent that the statute did not grant the district court discretion to reduce the maximum percentage of damages to be reserved, and instead holding that 25 percent of the damages awarded to the appellant, a former inmate who prevailed in a civil rights and state tort suit against correctional officers, should be directed to pay for the fees. (Disclosure: ISCOTUS Co-Director Carolyn Shapiro participated in a moot to help prepare respondent’s counsel for argument.)

Marinello is a case from the Second Circuit involving section 7212(a) of the Internal Revenue Code, criminally penalizing a defendant who “in any other way corruptly. . . obstructs or impedes, or endeavors to obstruct or impede the due administration of” the tax code. The defendant, Carlo J. Marinello, was found guilty of nine counts of tax-related offenses, including a violation of §7212(a). He asserts that the government was required to establish that there was a pending IRS action against him, and that he had knowledge of that action as part of its burden of proof in securing a conviction. The district court denied that Marinello’s motion for acquittal on this point, which the Second Circuit affirmed.

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

OT 2017, Weekly Roundup

Oral Arguments Review: Week of November 27

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On Wednesday, the Court heard oral arguments in one of the most controversial cases of this term: Carpenter v. U.S. In Carpenter, the justices heard arguments on a Fourth Amendment issue asking whether people have a reasonable expectation of privacy when they relinquish specific information to a third party. In this case, the information is metadata about someone’s location generated when he uses his cellphone. In an unusual turn of events, oral argument on Carpenter lasted 20 minutes longer than the usual hour per argument session. By the end of the rancorous session, there was little consensuses on where a majority of the justices stood on how they would extend the government’s ability to acquire such records.

Timothy Ivory Carpenter was convicted for his participation in a number of robberies over a period of several months in the Detroit area. The government used data collected through his cell phone usage in proximity to cell towers—obtaining it without a warrant through Carpenter’s cellular provider—as evidence to convict him. Carpenter argues that the means by which the government acquired those records was a violation of his Fourth Amendment right against unreasonable searches and seizures.

Several justices, including Justice Alito, inquired about how to approach the issue stating, “[t]his new technology is raising very serious privacy concerns.” Justice Sotomayor equated the government using phone records to track an American’s location to “Big Brother,” and commented that many people, including youth, are attached to their phones, like an extra appendage. Justice Roberts made a point regarding the nature of cellphone usage in the modern age and how difficult it is to conceive that most voluntarily elect to relinquish data on their location.

Two of the Court’s Fourth Amendment precedents figured prominently in the argument. In Smith v. Maryland, the Court decided that people do not have a reasonable expectation of privacy when dialing a number using a landline, although they do have such an expectation in the contents of the call. And in U.S. v. Miller, the Court held that there is no reasonable expectation of privacy when the government subpoenas a bank for an individual’s financial records because those records contain information that the individual voluntarily disclosed to a third party and that the third party retained for its own business reasons. But the Court also has recently decided two cases involving new technology and the Fourth Amendment: Riley v. California, which held that the police cannot search the contents of an arrestee’s phone without a warrant, despite the analogy to a wallet, which they can search; and United State v. Jones, which held that installing a GPS device on a vehicle was a search within the meaning of the Fourth Amendment.

Although many Justices appeared concerned about the privacy interests at stake in Carpenter, they did not appear to have settled on a single approach to this question of new technology and the Fourth Amendment. As The Daily Caller’s Kevin Daley stated, “[t]hough a majority of the Court appeared willing to extend protections to a user’s location data, the justices fractured as to how meaningful those protections might be, as well as the legal rationale on which they should rely.” Dahlia Lithwick of Slate also reports on the argument, including on Justice Gorsuch’s property-based theory about why the Fourth Amendment should apply to the location data.

The Court also heard oral arguments in Cyan Inc. v. Beaver City Employees Retirement Fund, which addresses whether state courts lack subject matter jurisdiction over covered class actions regarding the 1933 Securities Act. The petitioner argues that the law bars concurrent jurisdiction over all “covered class actions,” and the respondent argues that it bars “mixed” state- and-federal law actions. The Justices exhibited some frustration at the way Congress wrote the law. Justices Alito and Gorsuch, for example, called the statutory language “gibberish,” while Justice Ginsburg called it “obtuse.” The argument also featured two particularly experienced Supreme Court advocates. Neal Katyal, who was Acting Solicitor General under President Obama, represented the petitioners in his 35th Supreme Court argument, breaking the record set by Thurgood Marshall for the most oral arguments presented by a lawyer of color. And Tom Goldstein, publisher of Scotusblog.com, argued for respondents.

On Tuesday, the Court also heard oral arguments in Digital Realty Trust v. Somers, a financial whistleblowing case within the purview of an anti-retaliation provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Paul Somers, an ex-employee of Digital Realty Trust (DRT), a real estate investment trust, told upper-management that his direct supervisor had eliminated internal controls of certain operations in violation of the Sarbanes-Oxley Act of 2002. That Act has a statute of limitations of just 180 days, so after several months Somers filed a suit against his former employer under the Dodd-Frank Act for disclosing the information. DRT argues that the law only protects whistleblowers who report wrongdoing to the Securities and Exchange Commission (SEC); not those who report wrongdoing internally.

Finally, the Court heard oral arguments in two intellectual property cases. In Oil States Energy Services v. Greene’s Energy Group, the petitioner, Oil States, argues that Congress violated Article III of the Constitution and the Seventh Amendment when it authorized the Patent and Trademark Office to invalidate their patent, on behalf of Greene’s Energy, without a jury trial. In the other patent case, SAS Institute Inc. v. Matal, the Court heard arguments on whether the Patent Trial and Appellate Board is required to issue final written decisions on patentability to all petitions involved, or if the Board may grant a written decision to only some petitions.

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

News, OT 2017

Supreme Court Adds E-Filing

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On Monday, November 13, the Supreme Court’s new electronic filing system became operational, fulfilling a commitment Chief Justice Roberts had made back in 2014.  In his 2014 Year-End Report of the Federal Judiciary, Chief Justice Roberts focused on information technology.  In the report, the Chief Justice described how the Court has used technology, from the pneumatic tubes of the mid-20th century that allowed journalists to transmit opinions from the courtroom to their colleagues in the press room downstairs, to the more recent advent of computer-assisted legal research.  He then moved on to electronic filing, describing the federal courts’ CM/ECF(Case Management and Electronic Case Filing) and PACER (Public Access to Court Electronic Records) systems, which the federal courts began using in 2001, as vital to making the court system more accessible and affordable to litigants. Chief Justice Roberts added that the Supreme Court was developing its own electronic filing system, while cautioning that the Court would move slowly when adopting information technologies.

The Supreme Court’s new system largely tracks the Chief Justice’s 2014 description, and it has received good reviews.  For now, all parties will continue to submit all filings on paper; however, the Court will require all parties who are represented by counsel to file their submissions electronically as well. The documents will be available free of charge on the Court’s website, which distinguishes this system from the PACER system. PACER, which charges $0.10 per page up to $3 per document, has come under criticism for making public documents harder to access and for making academic research on the courts more costly, as The Washington Post explains. At least two lawsuits have been filed challenging those fees.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

OT 2014

This Day in Supreme Court History—November 30, 1804

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On this day in 1804, the United States Senate created a committee tasked with preparing rules to govern the first impeachment trial of a Supreme Court justice. The previous March, the House of Representatives had voted to impeach Justice Samuel Chase. Chase had been appointed to the Court by George Washington in 1796 and had established a reputation for his staunch, outspoken commitment to the Federalist Party. This gained him the enmity of the Jeffersonian Republicans, who in 1800 had won the presidency and gained control of Congress.

Samuel Chase

Chase had been particularly vocal in criticizing the Republican repeal of the Judiciary Act of 1801. The repeal abolished a number of newly created federal courts, along with the judgeships Federalists had secured prior to losing power.  Chase told a Baltimore grand jury in May 1803 that the repeal would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”

At the urging of President Jefferson, Representative John Randolph of Virginia initiated impeachment proceedings against Chase. On March 12, 1804, the House approved eight articles of impeachment against the justice. Among them was the charge that Chase was “continually promoting his political agenda on the bench,” and thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.”

The House also charged him with “refusing to dismiss biased jurors,” and “excluding or limiting defense witnesses in two politically sensitive cases.” These charges stemmed from two trials over which Chase presided. One was the 1800 treason trial of John Fries, in which Chase had delivered a written opinion that defined treason as a matter of law, without hearing the lawyers’ arguments. Fries’ attorneys withdrew from the case because, claiming that Chase’s conduct had tainted the jury pool, rendering a fair trial impossible. Fries was easily convicted. The other was the 1800 trial of James Callender, who had been indicted under the Sedition Act for publishing a book in which he accused John Adams of being a British sympathizer and a monarchist. The Sedition Act, which a Federalist Congress passed in 1798, made it a crime to bring the president or Congress “into contempt or disrepute.” The House impeachment charge alleged that Chase had acted in a way to ensure Callender’s indictment and that Chase also failed to exclude a biased juror.

The Senate ultimately acquitted Chase of all eight charges on March 1, 1805. None of the articles of impeachment came close to getting the two-thirds majority needed for conviction. His victory is widely believed to be a critical foundation for the principle that the federal judiciary should be insulated—to a large extent—from the partisan machinations of the legislative and executive branches.

Chase went on to serve the rest of his life on the Court. He died in 1811.

 

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.

Death Penalty, News

SCOTUS News Update: Travel Ban Filings, Death Penalty Challenges, and Errors in Opinions

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On Tuesday, the Trump administration asked the Supreme Court to allow full reinstatement of President Trump’s latest travel ban order on September 24, and block the Hawaii District Court’s order suspending full implementation of the travel restriction while plaintiffs, including the International Refugee Assistance Project, challenge the ban. Solicitor General Noel Francisco filed the request at the Court late Tuesday and argued the Court would likely hear the case if the Ninth Circuit upholds the injunction. The Court had previously agreed to hear challenges to Trump’s original travel ban, but it later dismissed the case as moot because the 90-day ban on immigrants from six majority Muslim countries expired before arguments. The Court has given plaintiffs until Tuesday, November 28 to respond to the request.

At Bloomberg, Jordan S. Rubin discusses Hidalgo v. Arizona, a pending cert petition originally scheduled for consideration for the November 21 conference but now rescheduled with no new conference date yet assigned.  Hidalgo considers the constitutionality of Arizona’s death penalty sentencing scheme, which includes so many “aggravating factors” – specific conditions regarding the class of defendants eligible for a death sentence – that virtually every defendant convicted of first-degree murder is eligible for the death penalty. The petitioner, Abel Hidalgo, also argues that the Court should hold that the death penalty “cannot be administered in accordance with contemporary standards of decency” and is thus a violation of the 8th Amendment. Rubin notes, however, that only Justices Breyer and Ginsburg have expressed an interest in re-evaluating the constitutionality of the death penalty. The article also quotes Margery M. Koosed,a  professor at The University of Akron School of Law, who argues it is more likely that the Court will grant review of the Arizona-specific question because the “justices are usually more comfortable ‘chipping away’ than taking a ‘broad-based’ approach.”

Ryan Gabrielson at ProPublica discusses the implications of a long-standing fear held by many legal scholars: justices on the Court using erroneous statistical information in their rulings. The article highlights the implications of a distinction drawn by legal scholar Kenneth Culp Davis between “legislative facts”, which are assertions about the real world, and  “adjudicative facts”, which relate to legal precedent and procedure. Davis asserted in 1987 that “[m]uch of our law is based on wrong assumptions about legislative facts.” In his concurring opinion in U.S. v. Leon, Justice Blackmun articulated that these wrong assumptions are partly attributable to “institutional limitations” that constrict the Court’s ability to gather information.

Gabrielson cites at least seven instances between 2011 and 2015 where a justice used incorrect information when deciding a case, including Arizona v. U.S., in which the Court decided whether Arizona could enact a law that, among other things, allowed law enforcement agents to verify the citizenship status of anyone detained by state authorities. Although most of the law was struck down, verification of citizenship was upheld. Writing for the majority, Justice Kennedy stated, “[A]liens are reported to be responsible for a disproportionate share of serious crime.” Kennedy cited the Center for Immigration Studies, which published a report stating undocumented individuals comprised 8.9% of Maricopa County’s population, and they were responsible for 21.8% of the felonies. However, the organization calculated these statistics by utilizing data from a variety of sources, including a 2008 study conducted by former Maricopa County Attorney, Andrew Thomas. The study stated that 18.7% of all felonies in the county were attributed to undocumented individuals, which is still much higher compared the number of undocumented individuals in the county. Thomas was ultimately disbarred in Arizona for “dishonesty, fraud, and deceit” weeks before Justice Kennedy delivered the opinion. It was found that Thomas misrepresented misdemeanor offenses as felonies to enhance the perception of the severity of criminal activity, and that ultimately, his reported percentage of felonies committed in Maricopa County by undocumented individuals was an estimate.

Another example is NASA v. Nelson, in which Justice Alito wrote for a unanimous Court. Upholding background checks on scientists at the Jet Propulsion Laboratory, Alito explained that 88% of private companies use background checks. But according to Pro Publica, that statistic came from an amicus brief filed by the National Association of Professional Background Screeners — and that organization was unable to substantiate its claim.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2018, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

History of the Court, Justices, SCOTUS Fun Facts

Justice Ginsburg Wins the Genesis Prize Foundation’s Lifetime Achievement Award

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The  Genesis Prize Foundation announced on Wednesday November 15 that Justice Ruth Bader Ginsburg will be the first recipient of their Lifetime Achievement Award, which they are awarding to mark the fifth anniversary of the Genesis Prize. According to the Foundation, the prize has been marked “the Jewish Nobel” by Time Magazine.  Justice Ginsburg will be presented with the award in Israel next summer by Israel’s former Supreme Court Justice President, Aharon Barak. The committee of former Genesis Prize recipients that chose Justice Ginsburg for the award were Michael Bloomberg, Michael Douglas, Yitzhak Perlman, Sir Anish Kapoor, and Natalie Portman. These previous winners of the Genesis Prize described Justice Ginsburg as a “perfect role model for young Jews.”

As the first Jewish woman to be appointed to the Supreme Court, Justice Ginsburg has been vocal about her identity as a Jewish woman and has spoken at several events celebrating Jewish holidays. According to US News, she was a surprise speaker at an event celebrating Rosh Hashanah in Washington this year where she spoke about how her faith has guided her to be empathetic towards members of minority groups who experience discrimination. Justice Ginsburg, along with Justice Stephen Breyer, who is also Jewish, was instrumental in ensuring that the Court not hear arguments on Yom Kippur in 1995. Nathan Lewis of Jewish Telegraphic Agency noted that they argued Jewish lawyers who had been preparing their arguments for several weeks would be forced to choose between arguing before the court and observing their religious holiday. Since then, the Supreme Court has not been open on Yom Kippur.

Along with Justice Ginsburg, Justice Stephen Breyer and Justice Elena Kagan, who is also Jewish, have spoken publicly about their religion, such as when Breyer and Kagan spoke at the Jewish Federations General Assembly in November of 2014.  

Justices Ginsburg, Breyer, and Kagan are far from the first Jewish Justices on the Court. Five more Jewish Justices have previously served: Abe Fortas, who served from 1965 to 1969 Arthur Goldberg; who served from 1962 to 1965; Felix Frankfurter, who served from 1939 to 1962; and  Benjamin Cardozo, who served from 1932 to 1938; and Louis Brandeis, who served from 1916 to 1939.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

News Update

SCOTUS News Update

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As its October 2017 term continues in full swing, the Supreme Court continues to make news.

Image result for supreme court

Greg Stohr of Bloomberg recently wrote a valuable article on the dominance of free speech cases on the Court’s docket. This term the Court has either heard arguments or agreed to hear arguments in First Amendment cases involving a range of issues: a baker’s denial of service to same-sex couples, mandatory union fees, partisan gerrymandering, abortion counseling, rights regarding political clothing at the voting polls, and retaliation due to criticizing local government. Stohr quotes Harvard Law School professor Rebecca Tushnet’s noting that  “the current court interprets the First Amendment more expansively in many ways that it did in the past,” and that these free speech claims have more “charisma” than other constitutional claims. Stohr also quotes the University of Chicago’s David Strauss noting that “when it comes to free speech, pretty much everybody is an activist.”

In other news, Mark Sherman of ABC News noted that in making legal filings available online like other federal courts, “surely but slowly, the Supreme Court is entering the 21st century.” The Court has never been eager to embrace technological innovation, of course. Chief Justice John Roberts has said that the courts are “late to the harvest of American ingenuity,” because their “primary role is to resolve disputes fairly.” The justices also routinely sent notes to each other on paper, “definitely not by email.” The Court is still unlikely to allow cameras in the courtroom in the foreseeable future or to allow live audio access to oral arguments.

News reports say that President Donald Trump, who recently updated his list of potential Supreme Court nominees, predicts he will appointment three more justices to the Court. The president apparently believes that Justices Kennedy and Ginsburg are ready to retire and that Justice Sotomayor may leave the Court due to health issues. As to Justice Sotomayor, she has has suffered from diabetes since childhood, but there are no signs that she will be leaving the Court anytime soon. Vanity Fair reported that the Justice has said she is vigilant about maintaining her health. And Justice Ginsburg has repeatedly stated that she has no plans to retire. “As long as I can do the job full stream, I will do it,” she has said. ABC News reports that Justice Ginsburg refers to herself as “Rapid Ruth,” and Justice Sotomayor as “Swift Sonia,” due to their speedy opinion writing.

In late October, Chief Justice John Roberts and Justices Elena Kagan, Anthony Kennedy, Stephen Breyer, Neil Gorsuch and retired Justice David Souter attended a bicentennial celebration at Harvard Law School, their alma mater. During the event, the justices shared numerous personal stories. Justice Kagan revealed that fellow Justice Breyer was her favorite professor in law school. Justice Kennedy recalled that one of the more feared professors during his time there was nicknamed “darkness at noon.” Justice Breyer said that one of the most influential pieces of advice he received came from Senator Ted Kennedy, who once asked him, “Do you want credit or do you want the result?” Justice Gorsuch recalled that he was “scared to death” during his first day of law school, and that clerking for Justice Kennedy was one of the most important experiences of his professional career. Justice Kennedy then joked to his former clerk, “You didn’t always do what I told you to do when you were my clerk—you better start doing it.”

 

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 Professor Christopher Schmidt.

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

This Day in Supreme Court History—November 18, 1811

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On this day in 1811, the Senate confirmed, by voice vote, two of President James Madison’s nominees to the Supreme Court, Joseph Story and Gabriel Duvall.

Joseph Story.jpg

[Joseph Story]

At 32, Story was the youngest Supreme Court appointee in history. The two men received their commissions that same day. (Once they arrived at the Court, Duvall who was 58 years old, was given seniority over Story because he was older.) Duvall, who served as Chief Justice of the Maryland General Court from 1796 to 1802 and as Comptroller of the Treasury under Madison, took the seat of Justice Samuel Chase, a fellow Marylander, who had died the previous June. Story replaced Justice William Cushing, who had died over a year earlier. Both Story and Cushing hailed from Massachusetts.

Earlier in 1811, Madison tried three separate times to fill Cushing’s seat. Levi Lincoln was appointed and commissioned, but declined the nomination because of failing eyesight. The Senate rejected customs inspector Alexander Wolcott by a 9-24 vote, largely because of Wolcott’s public support and enforcement of the Embargo Act of 1807. The Senate then unanimously confirmed John Quincy Adams, but he declined the honor.

At the time of his nomination, Story had already argued a case, Fletcher v. Peck, before the Court. He had a successful law practice through which he was earning $5,000 to $6,000 per year. His acceptance of the position on the Court meant he had to take a pay cut to $3,500. After taking his seat on the Court, Story wrote a friend to explain his decision. He cited the “high honor” of a serving on the Supreme Court, “the permanence of the tenure, the respectability, if I may so say, of the salary, and the opportunity it will allow me to pursue, what of all things I admire, judicial studies, have combined to urge me to accept.”   

 
The two justices who joined the Court together left very different marks on the institution. Justice Duvall had a rather undistinguished career on the Court; he served until his retirement in 1835. Justice Story, who served until his death on September 10, 1845, wrote many significant opinions as well as influential multi-volume commentaries on the law. He has gone down in history as one of the most important justices in the history of the Court, second only to the great Chief Justice John Marshall during the Court’s first half-century.

 

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.

Conference Report, OT 2017

Conference Report – November 10, 2017 Conference

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The Supreme Court issued orders from the November 9th conference on Monday morning.  The justices added three new cases to their docket and denied certiorari in a death penalty case from Alabama.

All three of the cases that were added to the docket are First Amendment cases. The first, National Institute of Family and Life Advocates v. Becerra, is a case brought by crisis pregnancy centers against the State of California.  The issue to be decided is whether the California Reproductive FACT Act’s required disclosures violate free speech protections in the First and 14th Amendments.  Crisis pregnancy centers (“CPCs”) are centers which provide some services for pregnant women and attempt to persuade women not to end their pregnancies.  As the Washington Post reports, some state legislatures have claimed that CPCs use deceptive and confusing advertising and may intimidate women who are unaware of the type of facility they are entering. The Reproductive FACT Act requires CPCs to disclose whether they have licensed medical personnel on staff and to inform women that California offers free and low-cost contraceptives and abortions to women who qualify for those services.

The CPCs who brought suit claimed that being forced to provide the disclosures required by the Reproductive FACT Act violates their First Amendment rights to free speech and free exercise of religion.  The Ninth Circuit upheld the law, holding that the state can regulate professional speech and that the sign did not encourage abortion but merely informed patients of available services.  In addition, the Ninth Circuit held that the state has a valid interest in safeguarding public health. The Supreme Court granted cert only as to the free speech issue and declined to take up the free exercise of religion argument.  This case will be watched closely by both sides of the abortion debate, and may have far-reaching effects.  As Dahlia Lithwick and Mark Joseph Stern at Slate argue, if California is legally unable to require that CPCs post truthful disclosures regarding medical licensure and state abortion services, then other states may not be able to force abortion providers to convey anti-abortion information.

The second case granted review, Lozman v. City of Riviera Beach, Florida, presents the question of whether a First Amendment retaliatory-arrest claim is defeated by the existence of probable cause. Fane Lozman, who will be presenting his second case on the merits to the Supreme Court, will be represented by the Stanford Law School Supreme Court clinic.  His arrest occurred after he refused to stop talking about local government corruption during a city council meeting, in spite of being directed by a councilmember to stop. Lozman claims that the arrest was retaliatory and violated his First Amendment right to free speech. The Eleventh Circuit ruled that because the jury found that the police had probable cause to arrest Lozman, his retaliatory-arrest claim could not survive.  As USA Today reports, Lozman’s counsel and others who have filed briefs in support of him, argue that retaliatory arrests against political activists, protesters, and the media are designed to stifle criticism of the government and violate the free speech rights of those who are arrested.

The third case added to the docket is Minnesota Voters Alliance v. Mansky.  The issue in this case is whether a Minnesota law which broadly bans all political apparel at polling places violates voters’ right to freedom of expression. According to the Duluth News Tribune, the law “prohibits anyone within 100 feet of polling places on election day from wearing ‘a political badge, political button or other insignia.’”  The lawsuit was brought by Andrew Cilek, an official of the Minnesota Voters Alliance, who was temporarily prevented from voting in 2010 after he arrived at a polling place wearing a “Don’t Tread on Me” t-shirt and a badge that stated, “Please ID me” with Election Integrity Watch’s website and telephone number printed on it.

According to CNN, counsel for Mr. Cilek and the Minnesota Voter Alliance argued in court papers that “Although this Court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech.”  The Eighth Circuit upheld the law, stating that the polling place is a nonpublic forum and that speech restrictions in such forums are constitutionally valid if they are viewpoint neutral and reasonable in light of the purpose of the forum.

Finally, the Court declined to grant review of the Alabama death penalty case Reeves v. Alabama.  The issue was whether a defendant may establish ineffective assistance of counsel using evidence other than testimony from trial counsel about his or her own strategic decisions under Strickland v. Washington; or whether the absence of such testimony makes the presumption of sound strategy categorically irrebuttable, as the Alabama Court of Criminal Appeals held.  In Strickland, the Court set out a standard for courts to use to determine whether counsel was constitutionally ineffective: (1) counsel’s performance must be deficient; and (2) the deficient performance must have prejudiced the defense in such a way that the defendant was deprived of a fair trial.

In 1997, Matthew Reeves was convicted of capital murder for the death of Willie Johnson in a robbery.  Reeves contends that although the trial court had granted his trial attorneys’ request for funds to pay for an expert to evaluate his intellectual disability, his attorneys never hired a mental health professional to do so.  In addition, Reeves contends that the expert that did offer testimony in his case was a court-appointed expert who only conducted limited examination of Reeves and did not speak with his attorneys until shortly before taking the stand.  The Alabama Circuit Court held an evidentiary hearing on Reeves’ post-conviction claims, but held that in spite of the substantial evidence presented regarding his intellectual disability and his counsel’s performance, the lack of testimony from his trial and appellate counsel was fatal to his claims of ineffective assistance of counsel. The Alabama Court of Criminal Appeals affirmed. The Alabama Supreme Court denied review.

Justice Sonia Sotomayor dissented from the Court’s decision not to grant review of this case, in which she argues that the court has never required that a defendant present testimony from counsel as evidence of his counsel’s actions in order to establish an ineffectiveness of counsel claim.  In fact, Justice Sotomayor argues, such testimony is not sufficient to find adequate performance if the full record “rebuts the reasonableness of the proffered justification.”  Justice Sotomayor concludes that Reeves provided ample evidence that met the Strickland standard and should have been granted review.  Justice Sotomayor was joined in her dissent by Justices Ruth Bader Ginsburg and Elena Kagan.  The dissent can be read here.

This post was drafted by ISCOTUS Fellow Eva Dickey, 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 Professor Carolyn Shapiro.

History of the Court, SCOTUS Fun Facts

The Supreme Court and the Great Tomato Controversy

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Over its long history, the Supreme Court has ruled on  many contentious legal issues: slavery and racial segregation, free speech and religious freedom, abortion and marriage equality. Perhaps it is not surprisingly, then, that our nation’s highest court has also weighed in on the biggest controversy ever debated in the produce aisle: whether the tomato is a fruit or a vegetable. Technically, a tomato is considered a fruit because it develops from the ovary of the flower of the tomato plant and it contains seeds of the tomato plant. Yet in Nix v. Hedden, the Supreme Court held that, for purposes of tariffs imposed on imported produce, the tomato is, in fact, a vegetable.

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Decided on May 10, 1893, Nix concerned a suit brought by a fruit importer, John Nix & Co., against Edward L. Hedden, the collector of the port of New York. Hedden had imposed a tariff on Nix’s  Carribean tomatoes, per the Tariff Act of March 3, 1883, which imposed a tax on imported vegetables (but not on fruits). Nix presented three dictionaries and two witnesses in order to prove that because tomatoes have seeds, they should be considered fruits, pursuant to the scientific definition of fruit. The Court reasoned that, while the dictionary definitions defined ‘fruit’ as “the seed of plaints, or that part of plaints which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed,” the definitions did not demonstrate that tomatoes were understood to be ‘fruit’ within the meaning of the Tariff Act and that the words ‘fruits’ and ‘vegetables’ did not have any special meaning for the purposes of trade or commerce. Therefore, to determine whether produce was classified as either ‘fruit’ or ‘vegetable,’ it was necessary to look to the ordinary meaning of the words.

Justice Horace Gray, delivering the unanimous decision, wrote: “Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.” Thus, the Court concluded, a tomato was a vegetable.

In 2005, a class of New Jersey fourth graders cited Nix v. Hedden in a successful bid to have the tomato chosen as the state vegetable of the Garden State. Because the tomato was technically a fruit, it had originally been excluded for consideration, but the school children argued that if the Supreme Court could declare the tomato a vegetable, then so could New Jersey.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020 and edited by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.