All posts by Chris Schmidt

OT 2017

Report on October 13 Conference

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While we wait for today’s Conference Order List, which will probably be released on Monday, here’s a summary of other recent orders and cert grants.

On Monday, October 16, the Court declined the petition for certiorari in Al-Nashiri v. Trump, a case involving Abd Al-Rahim Al-Nashiri, a Guantanamo detainee who has been held in U.S. custody for the past 15 years without trial for his alleged connection to the bombing of the U.S.S. Cole in 2000. Lyle Denniston, at Lyle Denniston Law News, notes that the denial indicates that the “troubled military commission system at Guantanamo Bay won’t be second-guessed by the Supreme Court” as this is the “second time within a week that the Court chose to bypass a Guantanamo case.”

The Court also announced cert grants in four cases. In United States v. Microsoft Corp. the Court will consider whether Microsoft must comply with a probable-cause-based warrant issued by the federal government to release specific electronic materials—controlled by the company—stored in an overseas datacenter. The government cites 18 U.S.C 2703 in their warrant for Microsoft to disclose the emails of a particular individual, which they argue was engaged in drug activity. The Second Circuit held in favor of Microsoft arguing that the government interpreted the warrant to be an “impermissible extraterritorial application of the statute.” As the National Law Journal explains, this case “highlights the current tension between law enforcement needs and privacy concerns in a rapidly changing digital landscape.”

In Dahda v. United States, a federal district court in Kansas issued a warrant for a wiretap under the Omnibus Crime and Safety Streets Act of 1968. The government tapped the phones of twin brothers Los and Roosevelt Dahda and used the evidence collected to convict them of conspiracy to distribute illegal drugs. Law enforcement wiretapped the brothers’ phones to intercept calls and collect evidence. On appeal, the brothers argued the court did not have jurisdiction to issue a warrant that covered calls when the phones were outside of the state of Kansas. The Tenth Circuit ruled in favor of the state. Justice Neil Gorsuch was on the Tenth Circuit panel that heard oral argument, although he did not participate in the final decisions, and he recused himself..

In Ohio v. American Express, the Court will hear oral arguments on AmEx’s usage of a contractual obligation to prevent merchants from steering consumers to use other credit cards and whether those rules hurt competition among other credit card companies in violation of Section 1 of the Sherman Act. The District Court ruled in favor of the plaintiffs — a group of states and, originally, the federal government– applying the “rule of reason” and finding that AmEx’s contracts stifled competition among other credit card companies and had no procompetitive benefits. The Second Circuit reversed. American consumers rely heavily on credit cards for their day-to-day purchases. Bloomberg reports that in 2011, there were 22 billion and worth roughly $2 trillion, according to court documents. (The federal government encouraged the Court not to take the case.)

Lastly, the Justices agreed to hear arguments on a Double Jeopardy case, Currier v. Virginia. The question before the Court is whether a defendant who consents to severance of multiple charges into subsequent trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of an acquittal. The State of Virginia indicted Michael Currier for stealing a safe as well as being a felon in possession of a firearm, all based on the theft of a safe that contained, among other things, firearms. During the first trial, the jury found him not guilty of stealing the safe. At the second trial (for the possession of a firearm charge), Currier argued that because he was found not guilty of stealing the safe, he was unable to possess the contents of the safe—the guns. The Virginia Supreme Court rejected this argument.

And on Tuesday, October 17, the Court removed Leidos, Inc. v. Indiana Public Retirement System from the November argument calendar after parties informed the justices that they are near a settlement. Leidos is a case concerning whether a Securities and Exchange Commission regulation constitutes a “duty to disclose” required by the Securities and Exchange Act, which allows shareholders to sue a company for excluding information from shareholder reports. Greg Stohr, of Bloomberg, reports that in a joint filing on October 6, the parties asked the Court to drop the case while they finalize the settlement.

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

 

History of the Court

Baseball and the Supreme Court

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To celebrate the beginning of this year’s baseball World Series, let’s revisit a few of the moments when the national pastime and the nation’s highest court intersected.

The Supreme Court played no small role in the development of major league baseball. In a series of three decisions spread out over the twentieth century, the Court recognized, and then twice upheld, baseball an exemption from federal antitrust law. (Organized baseball has always been vulnerable to charges of operating a monopoly–although the teams compete on the field, the owners cooperate in ways off the field that run afoul of basic antitrust principles.) The first decision, Federal Baseball v. National League, came in 1922. Writing for a unanimous Court, Justice Oliver Wendell Holmes, Jr. held that while professional baseball was a business, and while baseball teams did frequently travel across state lines, baseball games were not interstate commerce, and hence federal antitrust law (which was based on Congress’ authority to regulate interstate commerce) did not apply to professional baseball. Three decades later, in Toolson v. New York Yankees (1953), the Court revisited the issue and reaffirmed its 1922 ruling. Although by this point they recognized that major league baseball was clearly big business and within the power of Congress to regulate, it held that if baseball was to lose its antitrust exemption, the institution to do it was Congress, not the Court. But Congress did not take away baseball’s antitrust exemption, and the baseball monopoly was again before the Court in 1972 in the case of Flood v. Kuhn. And once again, major league baseball won at the High Court, as a divided Court affirmed Toolson and Federal baseball. (The owners’ monopoly power over the game would soon be weakened, however, with the advent of free agency for players later in the 1970s.)

Not only has the Supreme Court decided major cases involving major league baseball, but many devoted baseball fans have sat on the bench.

In 1973, while the Court heard arguments during the National League Championship Series, Justice Potter Stewart, a Cincinnati Reds fan, passed a note on the bench to Justice Harry Blackmun after learning that Vice President Spiro Agnew had resigned. The note read: “V.P. Agnew just resigned!! Mets 2 Reds 0.”

Justice Stevens, a lifelong Chicago Cubs fan, attended one of the most storied games in the history of professional baseball: game three of the 1932 World Series, between the Cubs and the New York Yankees, the game of Babe Ruth’s famous “called shot” home run. In an interview, Stevens recounted witnessing the historic moment.  Ruth “did point at the scoreboard, and then hit the ball out of the park the next pitch,” the justice explained. “But I think he was in an argument with [Cubs’ pitcher] Guy Bush at the time. And I didn’t know if he wanted to hit the pitch there or he wanted to hit Guy Bush.”

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Justice Sonia Sotomayor was surely unhappy to see the Yankees just miss out on the World Series this year. A lifelong fan of the Bronx Bombers, in September she attended a Yankees game and sat in “The Judge’s Chambers”—a section in Yankee Stadium named in honor of Yankees rookie right fielder Aaron Judge, complete with wood paneling and foam gavels for fans. Sotomayor was given her very own personalized set of judge’s robes, complete with an embroidered Yankees logo.

 

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

OT 2017, Weekly Roundup

Oral Arguments: Week of October 9, 2017

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The week of October 9, the Supreme Court heard argument on only two days and in only three cases. (The Court was closed on Monday, October 10, for Columbus Day, and it had previously canceled oral argument in the travel ban cases, originally set for argument on Tuesday.) Nonetheless, as our pre-argument post explained, the cases, if not headline grabbing, raised important to questions of procedure, jurisdiction, and statutory interpretation.

On Tuesday, the Court heard arguments in Hamer v. Neighborhood Housing Services of Chicago. The case presents the question of whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive an appellate court of jurisdiction over an appeal that is statutorily timely, or whether the Rule is instead nonjurisdictional and thus subject to considerations such as forfeiture, waiver, and the unique-circumstances doctrine. Rule 4(a)(5)(C) grants a district court leave to extend the time for an appellant to file a notice of appeal upon a showing of excusable neglect or good cause, but only within 30 days of the 30-day window in which an appellant must file a notice of appeal of a final judgment.

Hamer’s lawyer, Jonathan Herstoff, argued that the time limit cannot be jurisdictional because it was not imposed by statute, but rather is part of a rule drafted by an advisory committee and approved by the Court. Herstoff argued that Article III authorizes Congress alone to determine the lower courts’ jurisdiction. Damien Stewart, representing Neighborhood House Services of Chicago (“NHSC”), argued that the rule was asserted in premerits briefing in the appellate court, and therefore, NHSC could be victorious if the Court found the rule jurisdictional, as the 7th  Circuit did, or determine that it is a mandatory claim-processing rule that was not waived. Howard M. Wasserman of SCOTUS Blog provides an argument analysis here.

On Wednesday the Court first heard argument in National Association of Manufacturers v. Department of Defense, which addresses whether appellate courts have jurisdiction under the Clean Water Act (“CWA”) to decide petitions to review a rule, known as the waters-of-the-United States rule, that defines the waters that fall within CWA jurisdiction. The CWA provides appellate court jurisdiction when the Environmental Protection Agency  “issue[s] or den[ies] any permit,” but no permit was at issue in this case. If the appellate court does not have jurisdiction, lawsuits challenging the rule must be filed in district court. The petitioners, including the National Association of Manufacturers (“NAM”), as well as some environmental groups and states, argued that lawsuits challenging the rule should be filed in district courts because the rule is not among the seven EPA actions that the Act says are reviewable directly in appellate courts.. Justice Ginsburg, took NAM’s lawyer to task, pointing out that, under its argument, appellate courts would make decisions regarding individual permits while district courts would make broader decisions, and “one would think it would be just the other way around.” NAM’s lawyer, however, pointed to the statutory text, and the Ohio Solicitor General, who also argued for petitioners,  attempted to provide a unifying theme. Finally, as Marcia Coyle discussed at Law.com, the Justices asked whether the case will be moot if President Trump rescinds the Clean Water Rule as promised. The government acknowledged that the case would be moot if Trump carries through his threat, but nobody knows how long such a process would take, and as NAM’s lawyer argued, there may be challenges to such a change in the rules that could slow the process down even more. More information about the argument is available at SCOTUSBlog.

The second argument on Wednesday and the last for the week was Jesner v. Arab Bank, which presents the issue of whether the Alien Tort Statute (“ATS”) categorically prohibits lawsuits against corporations. The ATS, which dates back to 1789, gives federal courts jurisdiction over lawsuits brought by aliens alleging torts “in violation of the law of nations or a treaty of the United States.” In Jesner, victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank, and Gaza, brought the case against the Arab Bank, which the plaintiffs alleged had facilitated terrorism.

Jeffrey Fisher, arguing for the plaintiffs, made a text-based argument that the wording of the statute yields a “straightforward result” that corporations may be held liable for violating international law. True to originalist form, Justice Gorsuch pressed Fisher on whether his clients’ interpretation of the statute was consistent with Congress’s understanding in enacting the statute in 1789, and he rejected Fisher’s attempt to rely on Supreme Court precedent from 1900. As described in more detail at Just Security and The Originalism Blog, the case presents complicated questions about not only congressional understanding in 1789, but also international law and the relationship between the ATS and U.S. foreign policy. Amy Howe also provides a detailed analysis of the argument at her blog, Howe on the Court.

This post was written by Bridget Flynn and edited by Elisabeth Hieber, both ISCOTUS Fellows and Chicago-Kent Class of 2019.

History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—October 20, 1890

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On this day in 1890, Justice Sherman Minton was born in Georgetown, Indiana. From early in life, Minton seemed to have a knack for being in the right place at the right time. Among his law school classmates at Indiana University was Wendell Willkie, the Republican ran unsuccessfully against  Franklin Roosevelt in the 1940 presidential election. After law school (where Minton ranked first in his class while also playing on the university’s football team), Minton was awarded a one-year scholarship to pursue a master’s degree at Yale Law School, where he took a class with ex-President and future Chief Justice William Howard Taft. Justice Minton went on to serve as a captain in World War I and then returned to Indiana to practice law. When he became a Democratic United States Senator in 1934, he made a fortuitous friendship with a senator from Missouri names Harry Truman. In 1949, President Truman would appoint Minton, who was then  on the bench for the Seventh Circuit Court of Appeals, to the United States Supreme Court.

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Although Minton’s failing health meant that he would only serve on the Court for seven years, his time on the bench came at a critical moment for the Court, most notably the 1954 ruling striking down segregated schools in Brown v. Board of Education. Although never a leader among the group of strong personalities who were on the high court at the time, Minton proved a forceful figure in moving some of his more reluctant colleagues toward this eventful decision. Of Minton, Felix Frankfurter once said that he would not be remembered as a great Justice, but as a great colleague by the Justices he served with.

Minton’s poor health forced his retirement in 1956. He died in 1965.

 

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

History of the Court, This Day In Supreme Court History

On This Day in Supreme Court History—October 15, 1991

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On this day in 1991, the Senate confirmed Clarence Thomas to the Supreme Court. Thomas, who President George H.W. Bush nominated for the seat that opened after the retirement of Thurgood Marshall, the first African American Supreme Court Justice, experienced one of the most contentious confirmation processes in American history. Critics of Thomas’ conservative record as a Reagan administration official and then a federal appeals court judge opposed his appointment from the start, particularly in light of the liberal legal icon whose seat he was to occupy. The nomination then took a scandalous turn when Anita Hill, a law professor at the University of Oklahoma, accused Thomas of sexually harassing her when he was her supervisor at the U.S. Equal Employment Opportunity Commission. Thomas’s nomination barely survived the ensuing controversy. The Senate vote to confirm him was 52-48.Image result for clarence thomas

Clarence Thomas was born into poverty in rural Georgia in 1948. Thomas’ grandfather came to play a particularly influential role in his life, as he would detail in his memoir, My Grandfather’s Son. Thomas initially planned to become a priest, but after the assassination of Martin Luther King Jr., Thomas became disillusioned with the Catholic Church for not taking a strong enough stance on civil rights issues. He went to Holy Cross College, where he earned a degree in English Literature. He then attended Yale Law School, the beneficiary of an affirmative action program designed to bring more African American students to the school.

Before his nomination to the Supreme Court, Thomas spent the majority of his career in government. After passing the bar in 1974, he worked for the Attorney General of Missouri until 1977, when he became a legislative assistant to Senator John C. Danforth. Four years later, President Reagan appointed him Assistant Secretary for Civil Rights of the Department of Education, and the following year he was appointed Chairman of the U.S. Equal Employment Opportunity Commission. After serving eight years at the EEOC, President Bush appointed Thomas to the D.C. Circuit Court of Appeals, where he served for only 19 months before being nominated to the Supreme Court.

President Bush insisted that Thomas was not intended to fill a “quota” by having a black justice on the Court. “I expressed my respect for the ground that Mr. Justice Marshall plowed,” the President explained, “but I don’t feel there should be a black seat on the Court or an ethnic seat on the Court.” Bush insisted that he simply picked the most qualified person for the position.

Anita Hill’s shocking testimony before the Senate Judiciary Committee, just days before the confirmation vote, sparked a media explosion and threw Thomas’ confirmation in doubt. Thomas lashed out, accusing his opponents of engaging in a “high-tech lynching.” After being confirmed by the narrowest margin for approval of a Supreme Court justice in more than a century, President Bush, declared, “Judge Thomas has demonstrated to the Congress and to the nation that he is a man of honesty, dedication, and commitment to the Constitution and the rule of law.”

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

History of the Court

Movie Review: Marshall

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“Marshall,” a movie that opens this week, focuses on a young Thurgood Marshall as he defends an innocent black man accused of rape. The movie portrays the handsome and charismatic Marshall (played by Chadwick Boseman), arriving in Bridgeport, Connecticut, in 1941 to help defend Joseph Spell, as a man full of confidence and energy. He immediately asks his white co-counsel, Sam Friedman (played by Josh Gad), to carry his bags, takes command of Friedman’s car radio, and gets to work preparing his defense. Marshall, who we learn had already successfully sued to integrate the University of Maryland Law School, quickly demonstrates his abilities as an attorney, both inside and outside the courtroom. He makes his case to the press (and then admires his own photograph in the next day’s newspaper). He demonstrates his acute skills in reading people–including members of the jury.  When Friedman wants to eliminate a potential woman juror, Marshall convinces him otherwise. By uncrossing her arms, removing her glasses and leaning forward, Marshall explains, she gave Friedman signs. When Friedman asks what these signs mean, Marshall has to spell it out for him: “She likes you!”

At one point, Friedman accuses Marshall of exploiting the defendant to advance his broader civil rights cause. The opposing counsel offered Spell a plea bargain, which Friedman thinks they should accept. Marshall explains that if Spell accepts the plea bargain (or is convicted), that would not only hurt the cause of racial justice, but it would end Friedman’s legal career. Friedman, a tax attorney, did not want to take the case. But as the trial went on, Friedman found himself more and more committed to the case–and to Marshall and his cause.

At the end of the trial, as he prepares to leave Bridgeport, Marshall tells Friedman that he doesn’t want to put out fires, he wants to put out fire. Although the stubborn persistence of the racial justice issues Marshal confronted in Bridgeport in 1941 shows that he never quite pulled off his own ambitious dream, what he did achieve—including successfully arguing Brown v. Board of Education and many other major Supreme Court cases, becoming the first African American to serve as U.S. Solicitor General and as a Justice on the U.S. Supreme Court—make him arguably the most significant American lawyer of the twentieth century. This movie offers a powerful portrait of the man before he became a legend.

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019.

History of the Court, This Day In Supreme Court History

On This Day in Supreme Court History—October 7, 1935

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On this day in 1935, the Supreme Court moved into its current home on First Street in Washington, D.C.

“After years of moving about and occupying ‘borrowed’ quarters,” read one news account of the day, “the Supreme Court at last has a home of its own—a home which reflects the dignity and prestige of the nation’s highest judicial body.” “Neglected High Court Rises to Magnificence,” ran the headline in the Washington Post.

One detail many commentators noted when the Court opened were the tired old chairs the justices still used when hearing cases. “In the subdued grandeur of the new chamber, the old chairs, ranged behind the bench, seem a bit out of place,” noted one reporter. “Six of them are heavy leather affairs, tufted and bulging; the others also are leather but they are not so heavy nor are they tufted.” Asked whether he wanted a new chair, Justice Benjamin Cardozo referred to his respect for judicial precedent: “If Justice Holmes sat in this chair for twenty years, I can sit in it for a while.”
Although the courtroom was considerably larger than its previous space in the Capitol, the audience seating capacity had increased only marginally. The justices had insisted on maintaining a feeling of intimacy to the room and, according to one reporter, they did not want “to turn the chamber into an auditorium.”
The completion of the new home for the Court was largely the work of William Howard Taft, the ex-president who was appointed Chief Justice in 1921. From the time he arrived on the Court, Taft lobbied Congress for new chambers. In its early years, the location of the Supreme Court had bounced around before settling into a room in the basement of the Capitol (interrupted for a time after French troops set fire to their chambers, along with much of the rest of the Capitol building, during the War of 1812) and then, beginning in 1860, to new chambers upstairs in the Capitol, where the Court remained until 1935. But Taft felt the facilities inadequate. There was little work space for the justices, so most of them worked out of their home offices. Even before Congress had approved a relocation plan, Taft privately reached out to the famous New York architect Cass Gilbert to design the new building. In 1928, Congress created a building commission for the new Court, with Taft as its chair. The following year Congress apportioned $9.7 million to construct the new Supreme Court across the street from the Capitol.
Taft’s instructions to Gilbert were that the building be “enduring and easy to keep clean.” In preparing to design the new Supreme Court, Gilbert traveled to Athens, where he studied the Parthenon. Taft saw ground broken on the new Court building in early 1930, but he died that spring, soon after he stepped down from the Court. Construction ran through the spring of 1935.

The day after the new Court opened, the Wall Street Journal’s ran an editorial titled “Democracy’s Test” that spoke to the particular circumstances of 1935 but still resonate today:
The new white marble building built for the United States Supreme Court, experts say, should last a thousand years. It is fitting that the present should be the opening term in that building because issues are to be argued and decided that may well be looked upon as democracy’s test. In the new court room history is to be made; the world will look to our Supreme Court to give an emphatic negative to Mussolini’s statement that democracy is a worn-out theory

For more on the Supreme Court building, check out the descriptions on the official Supreme Court website or take the Oyez virtual tour.

This post was written by ISCOTUS co-director Christopher Schmidt, with research assistance by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and editorial assistance by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 .

History of the Court

Oyez! Oyez! Oyez!

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Monday was the first day of the Supreme Court’s new Term. And yesterday, as has been done for more than 200 years, the Court’s marshal has called the Court to order during the Justices’ entry by saying: “Oyez! Oyez! Oyez!” The word is derived from the Anglo-Norman term for “hear ye,” according to supremecourthistory.org.  The marshal continues, “[a]ll persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court.”

Stay tuned for more reports on this week’s arguments and other news.

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Anna Jirschele.

OT 2017, Weekly Preview

A Look Ahead at the Week at the Supreme Court

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Monday marks the start of a new term at the Supreme Court. By all accounts, this looks to be a major term for the justices, stocked full of high-profile cases; Justice Ginsburg has already declared it to be “momentous.”  

The term kicks off Monday morning with arguments in three consolidated cases: Epic Systems Corporation v. Lewis, Ernst & Young v. Morris, and National Labor Relations Board v. Murphy Oil USA. These cases present the question of whether an agreement that requires an employer-employee disputes be resolved through individual—not class or collective—arbitration is enforceable. The National Labor Relations Act guarantees employees the right to engage in “concerted activities” in pursuit of their “mutual aid or protection.” But the Federal Arbitration Act states that arbitration provisions “must be enforced.” The Court has ruled that this provision “will yield only when it has been overridden by a contrary congressional command in another federal statute.” The employers in these cases argue that the NLRA has no such command because it does not refer to class proceedings and its history provides no evidence that Congress intended  the NLRA to override arbitration agreements. The employees counter that the NLRA renders the arbitration agreements illegal and therefore unenforceable.

Later on Monday, the Court will hear re-arguments in Sessions v. Dimaya. Sessions presents the issue of whether the definition of “aggravated felonies” under the Immigration and Nationality Act (INA) is unconstitutionally vague.  Under the INA, a non-citizen who is found guilty of an aggravated felony is subject to deportation. The Immigration and Nationality Act defines “aggravated felonies” broadly, including a “crime of violence.” James Dimaya was convicted of residential burglary, which a judge determined was a “crime of violence” and thus an “aggravated felony” under the INA.

Sessions  is one of two immigration cases that the Court scheduled for reargument this week. National Law Journal discusses the possible motives the Court had for scheduling reargument in this case and in Jennings v. Rodriguez (discussed below), and the particular challenges re-arguments pose for lawyers.

On Tuesday morning, the Court hears one of the most highly anticipated cases of the term, Gill v. Whitford, a redistricting case. For a detailed discussion of Gill, look at the ISCOTUS oral argument preview.  Also worth visiting is FiveThirtyEight’s recent podcast on the case.

Also scheduled for Tuesday is re-argument in Jennings v. Rodriguez. The case presents the issue of whether a noncitizen in custody must receive a bond hearings and possible release if custody lasts six months. The case is likely to impact the effectiveness of an executive order that President Trump issued in January that called for ending the “catch and release” of immigrants facing deportation. The Court is likely to discuss two previous cases that possibly contradict each other: Zadvydas v. Davis from 2001, and Demore v. Kim from 2003.  In Zadvydas, the Court held that judicial review of detention decisions is necessary. In Demore, the Court invoked plenary power and held that there must not be judicial review of a provision of the immigration statute that requires detention of immigrants who are awaiting deportation because of a crime. This case also presents the question of whether courts must afford immigrants bond hearings every six months, automatically. SCOTUSblog has an excellent summary of the issues in Jennings.

On Wednesday the Court hears District of Columbia v. Wesby, a case stemming from the 2008 trespassing arrest of a group of people who were having a party in an unoccupied house. Police officers went to the house after neighbors reported the raucous partying and “illegal activities” and arrested twenty-one people on trespass charges. After making the arrests, police talked to the homeowner, who said he had not given anyone permission to enter the house. The case considers whether the officers had probable cause to make the arrests. The defendants argue that the officers did not because they had no evidence that the partiers knew or should have known they were trespassing. The Court will also decide whether the officers were entitled to qualified immunity. The Washington Post delves into the goings on that wild night and the procedural history of the case, which includes a divided appellate court that upheld a judgment requiring the officers to pay almost $1 million.

The Court concludes the week’s oral arguments with Class v. United States. This case presents the issue of whether a guilty plea results in the waiver of a defendant’s right to challenge the constitutionality of the statute under which he was convicted. Capitol police arrested Rodney Class in 2013 on charges of violating a federal law that prohibits possession of readily accessible firearms on Capitol grounds. Class, who represented himself in court, filed motions challenging the statute as violating the Second Amendment but then agreed to plead guilty. He argues that he did not expressly waive his constitutional claims when he made his guilty plea, and that the Court should implement a default rule that such issues are available on appeal in the absence of an express waiver. SCOTUSblog has a detailed argument preview.

 

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

This Day In Supreme Court History

This Day in Supreme Court History—September 29, 1958

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On this day in 1958, the Supreme Court issued its opinion in Cooper v. Aaron, a case involving efforts to desegregate schools in Little Rock, Arkansas. The situation in Little Rock had escalated from a local struggle over whether black children would be allowed to attend a previously all-white high school into a national constitutional crisis involving fundamental questions about the supremacy of the Supreme Court on questions of constitutional interpretation and the authority of the federal government over the states.

Local officials in Little Rock had initially indicated a willingness to accept the Supreme Court’s 1954 ruling in Brown v. Board of Education, which struck down state-mandated racial segregation in schools. State-level politicians, led by Arkansas Governor Orval Faubus, decided to follow the path being taken by most other states in the South and mobilized in opposition to Brown. The Arkansas state legislature amended the state constitution with language denouncing Brown and asserting the right of the state to defy its requirements. The legislature then passed a law that allowed parents to opt out of sending their children to integrated schools. The day before Little Rock was to begin its desegregation process in the fall of 1957, Faubus ordered the National Guard to surround Central High School, saying “blood would run in the streets” if black students tried to enter the school.

William Cooper and other members of the Little Rock school board then went to federal court asking for a suspension of the board’s own integration plan. The federal judge ruled in the school board’s favor. Thurgood Marshall and his team of lawyers at the NAACP’s Legal Defense Fund appealed the decision to the Eighth Circuit, which overturned the lower court ruling. Nine African American students—known to history as the Little Rock Nine—would attend Central High School during the 1957-58 school year under the protection of U.S. army troops. Cooper then appealed the case to the Supreme Court, which convened in a special session in the summer of 1958 to hear the case before the next school year began. (Listen to the oral arguments here.)

On September 12, a day after the completion of oral arguments at the Supreme Court and just days before the new school year was scheduled to begin in Little Rock, the Court unanimously ruled that there would be no more delays and that Little Rock had to continue ahead with its desegregation plan.

Governor Faubus responded by ordering closed all four high schools in Little Rock. The measure was necessary, he explained, “in order to avoid the impending violence and disorder which would occur, and to preserve the peace of the community.” The schools would remain closed for almost a year.

The Supreme Court’s reasoning came later in the month. On September 29, the Court released a unanimous opinion to which each of the nine justices signed his name—an unprecedented step designed to emphasize the unity of the Court, which included two justices who had come to the Court after Brown.

Much of the opinion—which was largely drafted by Justice William Brennan—focuses on the particular issues involved with the desegregation of the Little Rock schools. The opinion reiterates the justices’ commitment the interpretation of the Fourteenth Amendment that the Court had committed itself in Brown. But the concluding section of the opinion turns to the larger issue of the case, offering the Court’s refutation of “the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case.”  This section of the opinion offers a remarkable mixture of uncontroversial constitutional truisms and bold, novel assertions of judicial authority. The Court noted that under Article VI of the Constitution, the Constitution is the “supreme law of the land.” The Court also approvingly referenced the words of  Chief Justice John Marshall’s famous 1803 ruling in Marbury v. Madison, in which he declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Building from all these relatively uncontroversial pieces of constitutional text and Supreme Court doctrine, the Court concluded that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” The move the Court made here is worth noting. The Court blended the principle of constitutional supremacy and the idea that the Court’s primary role is legal interpretation to craft a claim for judicial interpretive supremacy. It is not just the Constitution that is supreme, but the Court’s interpretation of the Constitution that is supreme. At the time, most saw this bold assertion on the part of the Court as justified in the context of the struggle to implement Brown. But these lines from Cooper had–and still have–their critics, who wonder whether the Court may have gone too far in proclaiming itself the supreme interpreter of a document that proclaims itself to be the voice of We the People.

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Christopher Schmidt.