All posts by Professor Carolyn Shapiro

Week of June 26, 2017 at the Court – End of Term

The biggest news this week was the Supreme Court’s  decision to hear the travel ban cases while partially staying the lower court injunctions. The Court had before it two petitions for certiorari filed by the government — one from the Fourth Circuit and one from the Ninth Circuit, which had both upheld lower courts’ injunctions of the President’s Executive Order. (The Ninth Circuit had vacated the part of the injunction that precluded the government from undertaking a review of how certain decisions about admitting non-citizens to the United States are made.) The Court also had to rule on the government’s requests to stay the lower court injunctions in their entirety. The Court ruled on all of these pending matters on Monday, even issuing a short per curiam opinion explaining its order. First, the Court granted certiorari in both cases and directed that oral argument be scheduled for October. Second, the Court granted the government’s request to stay the lower court injunctions in part. Specifically, it directed that the injunctions remain in effect for anyone who has a “bona fide relationship with a person or entity in the United States,” but it stayed the injunctions with respect to other foreign nationals. Explaining this ruling, the Court said that a “close familial relationship” would be required for individuals to be admitted, and it indicated that the relationship with an “entity” could be satisfied by, for example, a job offer or admission to study at a university. It also said that a nonprofit could not create the necessary relationship simply by accepting a foreign national as a client in order to evade the Executive Order. This holding, of course, leaves many grey areas. Of particular note, the opinion was not explicit as to how the holding should apply to refugees who are working with resettlement agencies in this country but who may not otherwise have relationships with a requisite person or agency.

There are many important features of the Court’s ruling. Here are a few:

  1. The Court was not unanimous. Justice Thomas, joined by Justices Alito and Gorsuch, would have stayed the injunctions altogether, allowing the Executive Order to take full effect. They indicated their belief that the government should ultimately prevail on the merits.
  2. The Court emphasized that the government should be able to complete the review the Executive Order called for before the case is heard in October. And the 90 days of the travel ban will also expire before then, and the suspension of the refugee program soon after.. (The timing of this is a bit complicated. See Leah Litman’s excellent post for more details about this and other administrability issues related to the Court’s action.) As a result, it is quite likely that the case will be moot before the the Supreme Court can decide it. Marty Lederman of the Georgetown University Law Center argues this point forcefully here.
  3. The Supreme Court’s application of the standards for granting a stay was … unorthodox. As Daniel Hemel of the University of Chicago Law School explains, the Court has the luxury of skirting doctrinal niceties. Here, he argues the Court opted for “the spirit of compromise” and preserving “institutional legitimacy over doctrinal consistency.” He goes on: “Most Americans will see an evenhanded decision that commands the support of Democratic and Republican appointees alike.” Others — including Justices Thomas, Alito, and Gorsuch — do not agree.
  4. The opinion is a bit of a Rorshach test, with different people seeing different things in it. President Trump and Attorney General Jeff Sessions declared it a victory. Others on the right praised what they saw as an appropriate reaction to attempts to limit executive power. On the other hand, as detailed in The Los Angeles Times, some saw an “implicit rebuke” to Trump’s claim of “unfettered powers.” And Nihad Awad, executive director of the Council on American-Islamic Relations expressed his concern that the Court’s action “ignores the anti-Muslim bigotry that is at the heart of the travel ban executive orders and will inevitably embolden Islamphobes in the administration.”

Also on Monday, the Supreme Court took the bench for the last time this Term and handed down decisions in three cases in which it had heard oral argument. The most closely watched of these cases was Trinity Lutheran Church v. Comer. In this case, the State of Missouri denied Trinity Lutheran public funds to resurface its preschool’s playground because of a state constitutional provision prohibiting public funds from being given to religious organizations. The Court ruled that excluding religious affiliated organizations from funds available to other charitable organizations is a violation of the First Amendment, and more specifically the free exercise of religion. Chief Justice Roberts wrote in the majority opinion, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, cannot stand.” He was joined by Justices Kennedy, Thomas, Kagan, and — except for a single footnote — by Justices Alito and Gorsuch. Alito and Gorsuch objected to the footnote because they found it too limiting and would have gone much farther in permitting state funds to be given to religious institutions. Justice Breyer wrote separately to concur in the judgment and to emphasize, in his view, the narrowness of the question presented, comparing the health and safety program at issue here with police and fire protection that are uncontroversially provided to religious institutions. Justices Sotomayor, joined by Justice Ginsburg forcefully dissented. In the dissent, which she read from the bench, Sotomayor said that the decision “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” and “[t]he Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Check out The St. Louis Post-Dispatch,  Forbes, and  Fox News for more information on this decision, and the SCOTUSblog symposium, which includes discussion of the implications of this case for future church-state controversies.

In the first of two 5-4 decisions on Monday, California Public Employees Retirement System v. ANZ Securities, Inc., the Court decided that a suit filed by a would-be plaintiff who opts out of a class action is untimely if it is filed after the statute of repose. The National Law Review explains that this case stems from 2008 when the Lehman Brothers filed for bankruptcy. CalPERS filed a lawsuit against the firm more than three years after the purchase of securities at issue. The district court and the court of appeals held that CalPERS’ Section 11 claims were time-barred and yesterday, Justice Kennedy wrote the opinion, joined by the four conservatives, and affirmed. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Pensions & Investments notes that while CalPERS is disappointed with the result, the decision “reiterates the importance of remaining vigilant on behalf of our members in the future securities class-action cases.”

The Court also handed down Davila v. Davis, another 5-4 decision split on ideological lines. In writing for the majority, Justice Thomas explained that ineffective assistance of postconviction counsel does not qualify as cause to excuse a procedural default. In other words, if a criminal defendant fails to raise a claim on appeal because his appellate counsel is ineffective, he cannot raise that claim directly in federal court on habeas review. Late last week, The Atlantic recounted the Court’s decisions from this term relating to the death penalty noting, “…death-penalty opponents achieve[d] some notable victories even as the Court moved further away from abolishing capital punishment.” The article was written before the release of yesterday’s opinion, but Davila kept with the theme that abolishment of the death penalty seems to be out of sight. In light of the significant number of death penalty decisions this Term, SCOTUSblog is hosting a symposium on the Court’s capital punishment cases.

Monday’s Order List contained some news as well. First, the Court announced that it would hear Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission, which addresses whether and to what extent antidiscrimination laws must accommodate religious beliefs. Specifically, the case involves a baker who was held liable for refusing to make a wedding cake for a same-sex couple. Masterpiece Cakeshop had been relisted for Conference repeatedly, leading many to believe that it would be denied, with a dissent from the denial of certiorari filed. At the same time, in Pavan v. Smith, the Court summarily reversed the Arkansas Supreme Court and held that the state must list a same-sex spouse as parent on a birth certificate if it does so for opposite-sex spouses. Justice Gorsuch, joined by Justices Thomas and Alito, dissented. The Court also denied certiorari in Peruta v. California, a Second Amendment case about the right to carry a weapon outside the home. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari.

Three cases in which the Court heard argument this Term were left unresolved. In Hernandez v. Mesa – about a cross-border shooting of a Mexican teenager by an American border guard, the Court remanded for reconsideration in light of its decision in Ziglar v. Abbasi, which arguably narrows the availability of lawsuits against federal officials. And it set two case for reargument next Term, presumably because it was split 4-4 and needs Justice Gorsuch to be the tiebreaker. Those cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond while awaiting deportation hearings, and Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation. Other than Masterpiece Cakeshop, the Court granted cert in a number of additional cases. Those case include Rubin v. Islamic Republic of Iran, in which plaintiffs seek to seize artifacts owned by Iran but on loan to the University of Chicago for decades in order to satisfy a judgment related to a terrorist act, and Christie v. National Collegiate Athletic Association (and a companion case), about federal regulation of state restrictions on sports betting.

There will be much analysis of the past Term and the impact of the new justice in the coming week. But here is one to start with: In its article Neil Gorsuch is Paying Off for Trump So Far, notes that in two of the three decisions handed down yesterday, “Gorsuch’s vote was pivotal, leaving the final tally at five votes to four.” The article goes on to asses Gorsuch first 10-weeks on the Court and where he falls on the ideological spectrum thus far. And ISCOTUS Co-Director Carolyn Shapiro appeared on WTTW’s Chicago Tonight on Monday night to discuss the Court’s recent rulings.


Weekly Roundup – June 23, 2017

After announcing five opinions on Monday (discussed here), the Supreme Court issued three more on Thursday and another three on Friday. This coming Monday, June 26, is the last announcement day currently scheduled, and there are six cases still to be decided. And it is possible (although not overwhelmingly likely at this point) that the Court will push one or more of those cases over to next Term for reargument if it is deadlocked 4-4 in a case that was argued before Justice Gorsuch joined the Court. Also on Monday, the Court will announce its orders from the last Conference of the Term and it will, most likely, announce both whether it is upholding the stays in the travel ban cases and whether it will hear one or both of those cases on the merits.

Perhaps the most high profile case announced on Thursday was Maslenjak v. United States. The Court held, 9-0, that the United States government cannot strip a naturalized citizen of her citizenship on the basis of falsehoods told during the application process unless it can prove that those falsehoods were material to the decision to grant citizenship — that is, whether there is a causal relationship between the falsehood and the decision. Justice Kagan wrote the opinion, which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined in full. Justice Alito concurred in the judgment, and Justice Gorsuch, in his first separate opinion, concurred in part and concurred in the judgment, joined by Justice Thomas. (Justice Gorsuch would have declined to provide as much guidance about how the lower courts should evaluate materiality as the Court did.)

Maslenjak is one of several cases that Pam Karlan, Stanford law professor and highly experienced Supreme Court advocate, describes as part of the “outrage docket.” It was a case that the Court might not have had to take on traditional criteria, but the case provoked strong reactions among at least some of the Justices. As she recounted the oral argument in Malenjak, “Chief Justice John Roberts forced the assistant to the solicitor general to admit that under the government’s view, someone could be denaturalized if he didn’t admit to driving 61 miles per hour in a 55 zone, even if he was never caught and the statute of limitations for such an infraction has run out.” Other cases from this Term that Karlan places on the outrage docket include Buck v. Davis, where an African-American capital defendant’s own attorney put on expert testimony that blacks are more likely to be dangerous than are whites; Moore v. Texas, in which Texas persisted in using long-outdated tests for determining cognitive impairment to determine eligibility for execution; Packingham v. North Carolina, decided Monday, in which a North Carolina law barred convicted sex offenders from vast swaths of the internet; and Nelson v. Colorado, which involved a Colorado requirement that a defendant who has been exonerated establish his innocence by clear and convincing evidence to recover fines and fees. Professor Karlan’s discussion is part of the annual The Breakfast Table — a conversation between some of the most interesting courtwatchers and advocates about the Court’s Term.

Also on Thursday, the Court issued opinions in Weaver v. Massachusetts and Turner v. United States. Weaver involves the interaction of postconviction review with what is called “structural error.” As the Weaver majority explained, “[t]he purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should
define the framework of any criminal trial,” and requires automatic reversal when those guarantees are violated. The error in Kentel Myrone Weaver’s murder trial was that during two days of jury selection, the courtroom was improperly closed to the public, which would normally be considered structural error. But because his lawyer failed to object or to raise the issue on appeal, Weaver had to raise it as part of an ineffective assistance of counsel claim on postconviction review. And ineffective assistance of counsel requires a showing of prejudice to overturn a conviction. The question in Weaver addressed the need to demonstrate prejudice when the ineffective assistance resulted in structural error. The Court decided, 7-2, that Weaver must show prejudice. As The New York Times outlines, Justice Kennedy’s majority opinion (joined by the Chief Justice and Justices Thomas, Ginsburg, Sotomayor, and Gorsuch) states that “it must be recognized that open trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness.” Justice Breyer’s dissent opposed the majority’s view that the constitutional violation must have affected the whole trial, and states that an error leading to a “fundamental constitutional violation” should be enough to automatically grant a new trial. Justices Thomas, joined by Justice Gorsuch, concurred, questioning whether the closed courtroom should really be considered structural error and taking issue with the majority’s articulation of the prejudice standard. Justice Alito, also joined by Justice Gorsuch, concurred in the judgment also for reasons related to the prejudice standard. As ScotusBlog points out, Justice Gorsuch joined all three opinions that agreed on the outcome, even the one where the author himself declined to join the majority..

In Turner, the third of Thursday’s cases, the Court decided that the petitioners in a 1985 murder case were not entitled to a new trial due to previously withheld exculpatory evidence. In a 6-2 decision, with the majority authored by Justice Breyer, the Court decided that the evidence withheld was not material under the Brady v. Maryland standard. The Washington Post reports that Justice Kagan, who was joined by Justice Ginsburg in dissent, staunchly opposed the bottom line of the majority decision, noting that, “[w]ith the undisclosed evidence, the whole tenor of the trial would have changed.” (Justice Gorsuch did not participate.) In his contribution to The Breakfast Table on, former United States Solicitor General Walter Dellinger offers an interesting perspective of the case, seeing it from the solicitor general’s point of view: “[o]ne of the few unhappy aspects of being solicitor general is when you find out that a United States attorney has brought an ill-advised criminal case, won a conviction, and then persuaded a federal court of appeals to uphold the conviction.” Dellinger points out that sometimes prosecutors are overzealous and need to be reminded of Brady’s requirements, but he does not argue that the Court’s decision was clearly wrong, giving special credit to the government’s lawyer in the Supreme Court, Michael Dreeben, who is now also working part time for Robert Mueller, the special prosecutor in the Russia investigation.

Ineffective assistance of counsel was at issue in one of Friday’s opinions, Lee v. United States. In Lee, the defendant pleaded guilty to a drug crime at his attorney’s urging and assurance that it would not affect his immigration status. In fact, that advice was wrong and Lee found himself subject to deportation. The 6-member majority, in an opinion written by the Chief Justice and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, held that Lee adequately established prejudice and was entitled to a new trial. Justice Thomas, joined in part by Justice Alito, dissented, and Justice Gorsuch did not participate.

Murr v. Wisconsin, also decided on Friday, was the only close vote of the six cases released at the end of this week. Murr, which involved an alleged regulatory taking, was 5-3, with Justice Kennedy, joined by the four liberals, writing for the majority, the Chief Justice, joined by Justices Thomas and Alito, dissented, and Justice Thomas wrote an additional dissent. (Justice Gorsuch did not participate.) The issue in Murr involved how to evaluate whether a regulatory taking has occurred — that is, whether a property-owner has been deprived of all economically beneficial use of their property as a result of a regulation — where the property at issue is two adjoining lots. The Court provided a fact-specific, multifactor approach to the analysis and held that, in this case, the property was appropriately treated as a whole and no regulatory taking occurred.

Finally, on Thursday, the Court released a 7-2 decision in Perry v. Merit Systems Protection Board, a case notable to the general public largely because it was argued on the first day that Justice Gorsuch was on the bench. The issue in the case was whether a federal employee, disappointed by the resolution of a certain type of employment dispute in front of the Board, should appeal to the district court or to the Federal Circuit. The Court held that the correct forum was the district court. Justice Gorsuch, joined by Justice Thomas, dissented, arguing that the Court was effectively rewriting the statute and echoing his complaints at oral argument.

ISCOTUSnow will be back next week with the final decisions of the Term. The remaining cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond, Hernandez v. Mesa, about the extraterritorial application of the Fourth Amendment in a cross-border shooting of a fifteen-year-old Mexican boy and possibility of suit by his parents, Trinity Lutheran Church of Columbia v. Comer, a challenge to Missouri’s constitutional prohibition on funding even nonreligious activities, like playgrounds, undertaken by churches, Davila v. Davis, a habeas case about when ineffective assistance of counsel can excuse a petitioner from raising claims in state court, Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation, and California Public Employees’ Retirement System v. ANZ Securities, Inc., which is about the timeliness of individual securities fraud claims that might have been part of a putative class action. SCOTUSblog offers more detailed descriptions of these cases here.

This Week at the Court – Week of June 12, 2017

On Monday, Justice Gorsuch announced his first opinion as a Justice of the Supreme Court in Henson v. Santander Consumer USA, Inc.,, was the first of four opinions the Court announced from the bench. In Henson, the plaintiffs alleged that Santander had violated the Fair Debt Collection Practices Act (FDCPA) in its communications with individuals who owed debts. Santander, however, contended that it was not a “debt collector” as defined by the FDCPA because it was collecting debts that it owned, not on behalf of another creditor, even though it had not originated the debts itself but had purchased them. The Supreme Court agreed with Santander in a unanimous decision holding that when a company purchases and then tries to collect debts, it is not a “debt collector” within the meaning of the FDCPA. The FDCPA defines a “debt collector” as a third party who collects a debt on behalf of another, not a party collecting a debt that it is owed firsthand. Joseph P. Williams of USNews noted that Justice Gorsuch’s writing skills “seem to be as good as advertised” as he “delivered a cleanly written opinion, using common language, discarding legal jargon when appropriate and showing some empathy for the common person.” And Tony Mauro of The National Law Journal wrote that the assignment of this opinion to Gorsuch “followed the high court’s tradition of giving the newbie a positive experience by assigning him or her to write in a relatively straightforward case likely to yield a unanimous decision.” Mauro added that the opinion itself, which was in fact unanimous, “follows [Gorsuch’s] pledge to focus on the text of statutes before the court.” And Colin Wilhelm of Politico noted that although “Gorsuch acknowledged that a reasonable person could argue that the law be revisited” to cover the at issue, the opinion explained that “it is not this Court’s job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” For more commentary on this opinion, check out The Washington Post, Bloomberg, and  The Washington Examiner.

A second opinion announced on Monday was in Sessions v. Morales-Santana. In this case, the Court addressed an issue at the intersection of immigration law and sex discrimination. For many years, Congress has provided that children who have one U.S. citizen parent and are born abroad are entitled to U.S. citizenship themselves only if one of the parentsresided in the United States for at least ten years prior to the child’s birth, at least five of which occurred after the parent turned 14 (the “presence requirement”). This presence requirement applies to children of married couples where one of the parents is a citizen, and it also applies to children of unmarried couples where the father is a citizen. But the statute makes an exception for children of unmarried couples where it is the mother who is a U.S. citizen. Under those circumstances, the mother can transmit her citizenship if she lived in the United States for only one continuous year prior to the child’s birth.

Morales-Santana was born in the Dominican Republic. His father was a U.S. citizen, but his mother was not, and they were unmarried when he was born. (They later married.) Morales-Santana was denied citizenship because his father did not meet the presence requirement. He challenged the statute as unconstitutional gender discrimination in violation of the Constitution’s guarantee of equal protection because, had his mother been the U.S. citizen, she would have met the more generous presence requirement. The Supreme Court, in an opinion by Justice Ginsburg, joined by the Chief Justice and Justices Breyer, Kagan, Kennedy, Sotomayor, agreed and, quoting Obergefell v. Hodges, held that a gender-based “classification must substantially serve an important governmental interest today, for ‘in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.’” Mark Joseph Stern of  Slate noted the significance of this citation to Obergefell as having potentially longterm implications for gender discrimination law, and along with others, noted that the Chief Justice, who dissented forcefully in Obergefell, nonetheless joined the Court’s opinion in full.

Unfortunately for Morales-Santana, although the Court concluded that the government could not justify the statute’s gender-based distinction, it held that appropriate remedy in this case did not allow it to extend the rule for children of U.S. citizen unwed mothers to his case. iInstead, as Ian Millhiser of ThinkProgress explains, the Court required the Goverment to “apply the harsher rule universally.” Justice Thomas, joined by Justice Alito, concurred in the judgment but would not have reached the constitutional question at all. More information on the ruling is available from The New York Times and the Washington Post, which noted that Justice Ginsburg cited some of her own most significant work on gender discrimination, notably United States v. Virginia Military Institute.

Additionally on Monday, the Court issued its opinion in Microsoft Corporation v. Baker. The plaintiffs in this case brought a putative class action, but the class allegations were stricken. They then voluntarily dismissed their individual claims with prejudice but appealed the rulings on the class allegations. In part, this maneuver was an effort to avoid the fact that there is no appeal as of right for rulings on class certification. The question before the Court was whether a federal court of appeals had jurisdiction over those class-action issues. In an opinion written by Justice Ginsburg, the Court, relying on Federal Rule of Civil Procedure 23(f) and 28 U.S.C. 1291, held that there was no federal appellate jurisdiction once the plaintiffs dismissed their individual claims with prejudice. The ruling reiterates that parties generally have a right to appeal only a final judgment. Although the Court was unanimous (8-0) as to the result, Justice Thomas wrote an opinion concurring in the judgment, which was joined by Chief Justice Roberts and Justice Alito, and would have held that there was no Article III case or controversy left once the plaintiffs dismissed their individual claims. Greg Stohr of Bloomberg stated that this decision gives companies a “new procedural tool in class action litigation.” Deborah J. LaFetra of The Pacific Legal Foundation opined that this decision “put the kibosh on a tactic by counsel for purported class actions to evade the final judgment rule.” Check out  Reuters, ARS Technica, and US News for more information on this ruling.

The final opinion in an argued case that the Court issued on Monday was Sandoz Inc. v. Amgen Inc., a unanimous (9-0) opinion written by Justice Thomas. This case involved notice practices regarding marketing of “biosimilar products” under the Biologics Price Competition and Innovation Act of 2009. Biosimilar products are products regulated by the FDA that are “highly similar” to already approved biological products. Producers of biosimilar products must give certain notice to the sellers of the original products before they market.  The Court held that patent holders cannot use the federal law to enforce that requirement, although they may be able to use state law to get the information. Greg Stohr of Bloomberg noted that this was “a mixed decision on the rules governing efforts to get low-cost alternatives to pricey biotechnology drugs on the market.” Read Endpoint News and Reuters analysis of this decision for more information.

On Monday, the Court also issued a unanimous per curiam opinion in Virginia v. LaBlanc. This case indirectly addresses whether a state law providing for the possibility of geriatric release satisfies Graham v. Florida, which prohibits life imprisonment without the possibility of parole for non-homicide juvenile offenders. Virginia state courts had said that it did, and on habeas, the federal court of appeals disagreed. The Supreme Court reversed, although it did not reach the ultimate question. Rather, it held only that the Virginia state court’s holding was a reasonable application of Supreme Court precedent, which is all that habeas law requires. And the Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, which addresses the constitutionality of an administrative procedure for challenging patents. And to quote ourselves from several weeks ago:  [Y]et again, [the Court] did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons.

The Court is entering the home stretch. David Savage of The Los Angeles Times has a summary of some of the cases the Court still has left to decide (or hold over for re-argument) before the end of June. This discussion does not, however, include any possible action in the travel ban cases. On Monday, the Ninth Circuit issued its ruling largely upholding the injunction staying President Trump’s Executive Order, agreeing with the Fourth Circuit, but applying different reasoning. The United States has asked the Supreme Court to stay the injunctions and to hear at least one of the cases in the fall, and it has asked for rulings on those requests before the Court recesses at the end of the month. Stay tuned for more information.


Weekly Roundup – June 2, 2017

On Thursday evening, in the case now captioned Trump v. International Refugee Assistance Project (IRAP), the Trump Administration formally asked the Supreme Court to review the Fourth Circuit’s decision upholding a Maryland District Court’s preliminary injunction of President Trump’s second travel ban Executive Order. The government also asked the Court to stay the preliminary injunction pending disposition of the case and requested expedited briefing and argument, and it requested a stay of the District Court of Hawaii’s injunction of the Executive Order. All of the government’s filings in the Supreme Court can be found here.

Late on Friday, the Court ordered the IRAP plaintiffs to file a response to the petition for certiorari by June 12, although it did not order a response to the stay requests. It is, of course, always difficult to read the tea leaves, but this order suggests both that the Court is prepared to decide before the end of June, when the Court begins its summer recess, whether to grant cert, and that if it does grant, it will hold oral argument at the very beginning of — or even before — the next Term, which starts on the first Monday in October. But it would be quite unusual for the Court to grant a stay without ordering the parties opposing the stay to respond, and the Court has not yet done so. CORRECTION: The Court did in fact order responses to the stay applications, also due June 12.

Adam Liptak of The New York Times has a good explainer on what the Court can and might do with the petition and stay applications before it, along with background on what has already happened, and Josh Blackman likewise discusses the weaknesses of the Fourth Circuit’s opinion, through an analysis of the dissents, while also considering what the Supreme Court might do.. Mark Joseph Stern at Slate focuses on Justice Kennedy’s role in the future of the travel bans. Georgetown law professor Mark Tushnet argues at Balkinization that it would be appropriate for the Court to grant the stay of the Hawaii injunction, which (arguably) precluded the government from engaging in the review of the visa-application system that the Executive Order provided for, but that a stay of the Virginia order would be much more significant. And Kate Shaw, law professor at Cardozo, in a piece written before the government’s filings, analyzes the weight that the courts should give the President’s words, here.

In other, lighter news, the Supreme Court has had their new official photo taken with the addition of Justice Neil Gorsuch. As Time reported, the new “family photo,” is one of the rare times that cameras are allowed inside the Court. The shoot took only two minutes, and 11 photographers were allowed to photograph the Court. Christopher Morris, a photographer for Time, reported that “the atmosphere was light, as the justices quickly began joking with each other. Ruth Bader Ginsburg is the only one who shows the gravity of who they are and what they represent.” Morris further remarked “I felt the other justices felt a little awkward and were injecting a lot of humor.” USA Today reported that the justices are ordered by seniority during their picture. After 23 years on the bench, Justice Breyer got to move to the front of the crowd. Check out Scripps Political Correspondent Mike Sacks’ Twitter thread for many more photos of the Court going back through the years.

This Week at the Court – Week of May 29, 2017

On Tuesday, the Supreme Court issued three opinions and announced that will hear a case involving voter registration next Term. In one of the three opinions the Court issued on Tuesday, County of Los Angeles v. Mendez, the Court held, in a unanimous (8-0) opinion by Justice Alito that an officer’s reasonable use of force could not be understood to be unconstitutional by reference to things the officer had done earlier. In Mendez, the officers reasonably fired at a man pointing a BB gun at them. The question was whether their unconstitutional entry — without a warrant and without a knock-and-announce — into a shed where the man and his girlfriend, who were homeless, rendered the shooting unreasonable. As Rory Little explains in a particularly insightful SOCTUSblog post, it appears that the Court worked hard to achieve unanimity in this case and that it cabined its holding in significant ways, reminding courts that reasonableness is assessed on the totality of the circumstances and that law enforcement officers can be held responsible for the foreseeable consequences of their actions and even leaving open the possibility that the plaintiffs could prevail on remand.

In Impression Products, Inc. v. Lexmark International, Inc., the Court held that a patent holder cannot restrict a purchaser’s use or subsequent sale of a patented product, and it made clear that this legal rule applies to products sold both within in the United States and abroad. (The decision was 7-1, with Justice Ginsburg dissenting with respect to products sold abroad.) More analysis is available at Ars Technica. And in a unanimous (8-0) opinion by Justice Thomas, the Court held in Esquivel-Quintana v. Sessions that an immigrant’s conviction for sexual abuse of a minor arising out of a consensual relationship between the immigrant when he was 21 and his 17-year-old girlfriend did not qualify as an aggravated felony leading to automatic deportation.

And the Court agreed to hear Husted v. A. Philip Randolph Institute, in order to review a Sixth Circuit decision holding that Ohio’s method of removing voters from the rolls violated two federal laws. The Atlantic provides some background about the case and related issues. At the same time, the Court failed to act in a number of closely watched cert petitions. It did not act in Pavan v. Smith, for example, which addresses whether it is a violation of the Fourteenth Amendment to deny married same-sex couples to have both their names on their child’s birth certificate. And yet again, it did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons. SCOTUSblog, which keeps a running list of “Petitions We’re Watching,” summarized Tuesday’s orders here.

In other news, President Trump’s administration may find itself before the Supreme Court for a last chance to argue that its travel ban is constitutional. As Reuters reports, multiple federal courts have again declined to lift injunctions placed on the ban. It is unclear if the administration would file for appeal soon, or if they will wait for the 9th Circuit to rule on the issue. If they take on the case, the Court will be “called upon to decide whether courts should always defer to the president over allowing certain people to enter the country, especially when national security is the stated reason for an action as in this case.” They will also decide if the ban does indeed “favor one religion over another,” an action prohibited by the Constitution. Experts believe this case will most likely make its way to the Court for a final decision. However, as Lyle Denniston of Constitution Daily reports, the administration must act quickly if they want the issue settled before fall. As this is a very important and hotly debated case, the Court might even hold a special sitting in the summer if they believe it is urgent enough.

Finally, Gill v. Whitford has been in the recent news. In this case, a three-judge district court struck down Wisconsin’s State Assembly map “because it was drawn to neutralize the votes of Democrats, depriving them of representation.” USA Today reports that this case and other similar cases “will present the court with a fundamental question about political power: How far can lawmakers go in choosing their voters, rather than the other way around?” The Court declined for decades to set a standard regarding partisan gerrymandering, and this case may lead it to do so for the first time. Alternatively, the Court could hold, as four justices urged the last time the Court considered the issue in Vieth v. Jubelirer, that legislative districting is a nonjusticiable political question. (Because of the type of case, which was heard by a three-judge district court, the parties have an appeal as of right to the Supreme Court. The Court can summarily affirm, but it is likely to order full briefing and argument because of the significance of the case.The state of Wisconsin has requested a stay so that it does not have to redraw the districts in the meantime. Justice Kagan has ordered a response by June 7.) Ariane de Vogue of CNN explains the background of this very important legal issue.


Weekly Roundup – May 25, 2017

On Monday, in Cooper v. Harris, the Supreme Court upheld a lower court decision to strike down two North Carolina congressional districts as unconstitutional racial gerrymanders. Since the opinion’s release, the case has continued to garner attention. Linda Greenhouse of the New York Times argues that Cooper highlights the Court’s role “as a forum for electoral struggle,” and she notes the ways in which justices have invited parties to use it in that way. Greenhouse surveys other recent election- and voting-related cases, and she calls Justice Kagan’s majority opinion in Cooper “her most important since joining the Supreme Court seven years ago.” And commentators continue to debate the implications of the case going forward. Chris Elmendorf, for example, worries that the Cooper could lead to a weakening or even elimination of state obligations under Section 2 of the Voting Rights Act, insofar as it outlaws race consciousness in redistricting. And the SCOTUSblog symposium continues to have fascinating commentary from across the political spectrum. ISCOTUS co-director Carolyn Shapiro also discussed the case on WGN’s Legal Face Off this week. (For more information about Cooper and the other cases decided on Monday, see ISCOTUSnow’s post earlier this week.)

On Thursday evening, the Supreme Court also declined to grant certiorari or issue a stay in Thomas Arthur’s execution by the state of Alabama. Arthur, who maintained his innocence, was challenging the use of midazolam as part of the execution protocol. When the Court rejected his earlier cert petition in February, Justice Sotomayor, joined by Justice Breyer, dissented and laid out an extensive argument about why the Court should consider (and reject) the constitutionality of the execution protocol that uses midazolam. (The allegation is that midazolam does not render the individual unconscious, but does paralyze him, so he experiences tremendous pain when injected with the other two execution drugs but has no way to react or communicate what is happening.) In her opinion on Thursday, dissenting from denial of certiorari and denial of a stay, Sotomayor accused Alabama of worsening the situation by impeding Arthur’s access to the courts by refusing to allow his lawyer to have a phone with him during the execution. As a result, if the execution were botched or otherwise problematic, the lawyer would have difficulty seeking judicial intervention. The execution was carried out on Thursday evening.

In other news, Fix the Court released a report on transparency in the judiciary. The organization, which supports live video or audio streaming from both the United States Supreme Court and the federal Courts of Appeals, commented on video and audio access in the high courts of California, Iowa, Minnesota, Texas, and Utah. The report found that live-streaming is on the rise. Iowa provides live-streaming for cases of particular public interest, and video records all arguments. The Iowa Supreme Court even allows journalists to use social media in the courtroom. The Minnesota Supreme Court provides same-day video of its arguments, And in 2016, the California Chief Justice decided to live-stream all of that court’s arguments, joining Texas and Utah in doing so. The Texas judiciary has been particularly open to cameras in the courtroom, with Texas Justice Don Willett arguing that they help “demystify this inscrutable branch of government.” As United States Representative Ted Poe, a former judge from Texas, explains, “we have the greatest judicial system in the world for determining guilt or innocence…why would we not want the world to see it?” (The Fix the Court report also addresses tenure and mandatory retirement policies for judges in the five states.)

The Supreme Court will announce its Order List from yesterday’s Conference on Tuesday, and it may also release opinions. ISCOTUSnow will be back with a summary of that and other Court-related news.

The Week of May 22, 2017 at the Court

On Monday, the Supreme Court issued three opinions and its Order List from last week’s Conference. The most newsworthy of the decided cases, Cooper v. Harris, involved a challenge to two congressional districts in North Carolina. The plaintiffs  alleged that the districts were an unconstitutional racial gerrymander. The three-judge district court agreed, and the case was appealed automatically to the Supreme Court, which affirmed, striking down the districts. (If this sounds familiar, it may be because earlier this Term, the Court unanimously vacated a decision by a district court to uphold parts of a Virginia state legislative map that was challenged as an unconstitutional racial gerrymander, in a case called Bethune-Hill v. Virginia Board of Elections. The two cases were argued on the same day, by the same lawyers.)

In Cooper, in an opinion by Justice Kagan, the Court unanimously (8-0) rejected the state’s claim that, to comply with the Voting Rights Act, it needed to increase the black voting age population in one of the two districts. And by a 5-3 vote, the Court upheld the district court’s factual findings, with respect to the second district, that race predominated over other, constitutionally neutral, districting criteria. Many people were surprised by the line-up in Cooper. In Cooper, the 5-3 part of Justice Kagan’s opinion was joined by the other three liberal justices (Breyer, Ginsburg, and Sotomayor), but the fifth vote was supplied by Justice Thomas. But as I tweeted on the morning that Cooper came down and Mark Joseph Stern explained in more detail in Slate, Justice Thomas’s vote should not be a surprise. As he explained in detail in his partial concurrence and partial dissent in Bethune-Hill and reiterated in his concurrence in Cooper, he believes that the conscious use of race in government decisionmaking should be subject to the strictest of scrutiny – and it is this hostility to the use of race in decisionmaking that has made him hostile to the way the Voting Rights Act is interpreted and applied (see his dissent in Alabama Legislative Black Caucus v. Alabama for some discussion of this point). In other words, Justice Thomas’s views about the law across these cases are fairly consistent, even if they do not map onto a traditional liberal-conservative understanding.

As prolific election law blogger and scholar Rick Hasen suggests, however, the bigger surprise may be that Justice Kennedy, who authored the opinion for the Court in Bethune-Hill, joined Justice Alito’s partial dissent here. Hasen speculates persuasively that Kennedy was uncomfortable with the majority’s handling of an earlier precedent requiring racial gerrymandering plaintiffs to produce an alternative map that meets the state’s legitimate criteria; the Cooper majority reads that requirement as simply setting out one way, but not the only way, for plaintiffs to prove that race predominated. Justice Alito’s partial dissent vehemently disagrees with that reading.

Cooper is very important, although just how important is in dispute. Some, like Hasen, think that these cases may make it harder for racial gerrymanders to be defended as partisan gerrymandering, at least in the South where race and party affiliation are very highly correlated, thus giving voting rights advocates more ammunition. Others, like equally prominent scholar Richard Pildes, argue that Cooper involves only a fact-specific disagreement about application of well-established legal propositions. There is no question, however, that Cooper, along with Bethune-Hill, will be pored over by legislators, and courts alike. Indeed, SCOTUSblog is sponsoring a symposium to discuss these cases.

The Court made other election-related news yesterday when it declined to hear full argument in Republican Party of Louisiana v. Federal Election Commision, instead simply summarily affirming. (There are a small number of cases, like this one and the voting cases just discussed, in which there is a three-judge district court and an appeal as of right. The Court can summarily affirm or, at least theoretically, summarily reverse, or it can set the case for argument and consider it on the merits. The precedential value of a summary affirmance is weaker than merits consideration because it does not contain any reasoning or approval of the lower court’s reasoning; it only affirms the bottom line.) Republican Party of Louisiana involves an unsuccessful challenge to the McCain-Feingold campaign finance law’s regulation of certain donations, known as “soft money,” to state and local parties. This summary affirmance was particularly notable, however, because Justices Thomas and Gorsuch indicated that they would have set the case for oral argument and a full merits decision. Kate Ackley of Roll Call rounds up reaction to the Court’s action and to Thomas and Gorsuch’s disagreement with it.

The Court also issued opinions in two other cases on Monday. First in an 8-0 opinion by Justice Alito, it held in Water Splash, Inc. v. Menon that under an international treaty known as the Hague Service Convention, international service of process by mail is permissible. And in an 8-0 opinion by Justice Thomas in TC Heartland LLC v. Kraft Food Group Brands LLC, the Court limited the places where patent suits can be brought by interpreting the statute to mean that a defendant’s “residence” is its place of incorporation only. This ruling limits a patent infringement plaintiff’s ability to forum shop, and will particularly affect the district in Texas where 40% of patent suits are filed due to a perception about friendly judges and juries, Reuters explains. In the same article, IIT Chicago-Kent law professor Greg Reilly points out that as a result, fewer cases are likely to be filed at all, which would be “a positive step for those who think there is a problem of a lot of poor-quality patents being enforced.” Adam Liptak for the New York Times explains that the decision is a blow to “patent trolls,” companies or individuals who buy patents for the sole purpose of “demand[ing] royalties or sue[ing] for damages.”

Finally, this paragraph from last week’s post remains true today:

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The Court will hold Conference on Thursday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when it does.

This Week at the Court – May 15, 2017

On Monday, the Supreme Court issued its Order List from last week’s Conference and also issued opinions in three cases. Perhaps the biggest news of the day was the Court’s denial of certiorari in North Carolina v. North Carolina State Conference of the NAACP. The North Carolina case involved a challenge to the state’s particularly strict voter ID law, a law that also cut back on early voting and made other changes in voting that had a particularly negative effect on African-Americans voters. The law was passed in the immediate wake of Shelby County v. Holder, in which the Court struck down the preclearance requirement of the Voting Rights Act. As a result, for the first time in decades, North Carolina was able to make wholesale changes to its voting and election laws without demonstrating, either to the Justice Department or to the D.C. District Court, that the changes would not harm minority voters. The law was challenged as violating the Voting Rights Act and the Fourteenth and Fifteenth Amendments. The district court held that the plaintiffs had not established either discriminatory effect or discriminatory intent. The Fourth Circuit reversed, holding that the legislature had targeted African-American voters “with almost surgical precision,” and it enjoined the law.

The State of North Carolina, its then-Governor, a Republican, and other officials, represented by the then-Attorney General, also a Republican, filed a cert petition. In January 2017, however, a new Governor and Attorney General, both Democrats, were sworn in, and the new Attorney General sought to withdraw the cert petition. The state legislature, which is and was under Republican control, objected, arguing that state law did not authorize the Attorney General to withdraw and that state law authorized them to retain their own counsel. As Chief Justice Roberts put it in a statement respecting the denial of certiorari, “a blizzard of filings” ensued. In light of the complex state-law dispute that the Court was faced with, Roberts admonished that the denial of certiorari is not a decision on the merits.

The Supreme Court’s denial of certiorari, however, does leave the Fourth Circuit decision intact. This is a victory for voting rights advocates, but it may not be a permanent one, as Ian Millhiser for Think Progress explains. Noted election law scholar and commentator Rick Hasen argues that the Chief Justice, who also wrote a statement respecting the denial of certiorari in a Texas voter ID case, is both encouraging states to continue to litigate these cases and is likely to be particularly unfriendly to plaintiffs’ claims under the Voting Rights Act when such a case finally reaches the Court. And the New York Times reports that the leadership of the Republican-controlled legislature in North Carolina is vowing to enact new voting restrictions.

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The three opinions issued yesterday are in contrast to the three high-profile issues at issue in the cert petitions just discussed, although the issues presented are important. In Kindred Nursing Centers Limited Partnership v. Clark, the Court held 7-1 that a state cannot impose a requirement for a power of attorney to enter into an arbitration agreement that it does not impose on other contract provisions. The lone dissenter, Justice Thomas, adhered to his view that the Federal Arbitration Act does not apply in state courts, but the rest of the justices (other than Justice Gorsuch), in an opinion written by Justice Kagan, emphasized that arbitration clauses cannot be treated differently from other contractual terms. Indeed, as several commentators noted, the opinion could have implications for a variety of state attempts to protect consumers from arbitration agreements. This almost unanimous holding is surprising in some ways, as the Court has often split 5-4 on its reading of the FAA. But it is unsurprising in light of Justice Breyer’s expressed concern at oral argument “that Kentucky just doesn’t like the federal law … [s]o they’re not going to follow it.”

In Midland Funding LLC v. Johnson, the Court held 5-3 (with Justice Breyer joining the conservatives) that a creditor does not violate the Federal Debt Collection Practices Act by filing a proof of claim in bankruptcy court for a debt it could not otherwise collect due to the statute of limitations. In the Wall Street Journal, Jess Bravin provides some real world context for the “big business” of collecting time-barred debts. Bloomberg has more here. And in Howell v. Howell, the Court held that a veteran who waives military retirement pay in favor of disability payments does not have to indemnify his spouse for the lost retirement. Amy Howe of SCOTUSblog provides more information and explanation.

The Court will have Conference on Friday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when they do.

Gaming Out the Nuclear Option

Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Today, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I’m not alone in thinking about unintended consequences here. Nate Silver of has an extensive piece today about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

In contrast, the Democratic nominees during this timeframe – Ginsburg, Breyer, Sotomayor, and Kagan – were all seen as varying degrees of moderate liberal at the time they were nominated. You don’t have to take my word for this. Relying on data from the venerable Supreme Court Compendium, University of Chicago Law Professor Geoffrey Stone has ranked the nominees (through Kagan) by perceived intensity of ideology at the time of nomination. Except for Souter and Kennedy, all Republican nominees in the past 35 years have more intense ideological preferences than all Democratic nominees in the same timeframe.

And nominating a moderate did not help President Obama in the fight over the vacancy left by Justice Scalia’s death. President Obama’s pick, Judge Merrick Garland, was anything but an extreme nominee. Indeed, only a week before his nomination, Senator Orrin Hatch predicted that Obama would not nominate Garland, whom Hatch had previously praised as worthy of bipartisan support, because he was too moderate, and some progressive groups were disappointed by the nomination. Given that context, the Republican refusal to even consider Garland was and remains particularly infuriating to Democrats. As a result, one lesson Democrats might reasonably draw from the Garland nomination is that there is no Democratic nominee moderate enough (or old enough – Garland was in his 60s, quite old for a lifetime appointment) to be confirmed by a Republican Senate.[1] This lesson may resonate all the more because the Garland nomination was the first since before Brown v. Board of Education was decided in 1954 in which a Democratic president’s nominee was made to a Republican-controlled Senate. In other words, there is no history of a Republican-controlled Senate confirming moderate Democratic nominees.

Contrast this Republican treatment of Garland to the treatment Democratic- controlled Senates have given Republican SCOTUS nominees. Since 1954, Democratic Senates have confirmed numerous Republican appointees, including the conservative Burger, Rehnquist (when appointed as Associate Justice), Kennedy, and Thomas. Democratic Senates also confirmed Souter, Stevens, Powell, Blackmun, and President Eisenhower’s four post-­Brown nominees. That’s twelve confirmations. And until today, the Democrats have never filibustered a Republican nominee. Republicans like to complain about Bork, who was narrowly defeated by a Democratic Senate. But as this list makes clear, Bork’s defeat was unusual. And it happened because he was himself unusual in his extreme positions and rigid readings of the Constitution.

Finally, it’s worth noting just how rare Democratic Supreme Court appointees have been in the last half-century. In 1967, President Johnson successfully nominated Thurgood Marshall to the Supreme Court. No justice was nominated by a Democratic president for another 26 years, until President Clinton nominated Justice Ginsburg in 1993, followed by Justice Breyer in 1994. The most recent two Justices to join the Court – Justices Sotomayor and Kagan – were appointed by President Obama. That is it – five appointments in 50 years. In contrast, during the same time period, Republican presidents successfully appointed eleven Justices and additionally successfully elevated Rehnquist from Associate to Chief Justice.[2] With the pending confirmation of Justice Gorsuch, the Republican tally will increase to twelve – with Democrats still steaming over the treatment of Garland.

The point here is that despite Republican complaints that Democrats have been waging “scorched-earth ideological wars” over judicial nominees, at least during the past 35 years, Republicans have been more aggressive in trying to appoint ideologically extreme Supreme Court justices. Pushing such appointments – and eliminating the filibuster to get the latest one through – while refusing to even consider a moderate nominee by President Obama removes many of the incentives for Democrats to nominate moderates when they control both the Senate and the Presidency. When it comes to selecting new members of the Supreme Court, we should expect future Democratic presidents and Democratic-controlled Senates to act more like Republicans have been acting, resulting in more liberal appointments. (It also may, for the first time, lead Democratic voters to focus as much on the Supreme Court as Republican voters do, although this may be wishful thinking.) But the bottom line is that in the long run, Republicans may live to regret the nuclear option.

[1] There are of course other factors here. The fact that a Democratic nominee to replace Scalia would have a dramatic effect on the overall ideological balance of the Court surely played a role in encouraging Republican opposition. And Republicans also argue, for example, that some Democrats had themselves proposed a moratorium on SCOTUS nominations during a presidential election season.

[2] The Republican-appointed justices are Burger, Blackmun, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Roberts, and Alito. We can also go back to Brown, since that is a timeframe I use elsewhere in this post. Since Brown, and not including Gorsuch, Republican presidents have successfully nominated fifteen justices, and Democrats have successfully nominated eight. The additional Republican appointees are Harlan, Brennan, Whittaker, and Stewart, while the Democratic appointees are White, Goldberg and Fortas.

The Week Ahead – January 23, 2017

The Court is not scheduled to hear any arguments this week and is in recess until February 17. Nonetheless, this morning it issued orders from last week’s Conference. (Grants were announced last week, and we discussed them here.) The most notable news from this morning’s Orders List is that the Court declined Texas’s request to hear the Texas voter-ID case, Abbott v. Veasey, in which the lower courts found that the voter-ID law violated the Voting Rights Act. The case will now proceed to trial, and as Amy Howe at SCOTUSblog explains, Chief Justice Roberts issued a statement respecting the denial of certiorari — an unusual move — in which he emphasized that the case could come back to the Court post-trial to present the same or similar legal questions. Specifically, he explained that the petitioners were asking the Court to review the lower courts’ findings that Texas had “enacted [the law] with a discriminatory purpose and whether the law results in a denial or abridgment of the right to vote under §2 [of the Voting Rights Act.. Although there is no barrier to our review, the discriminatory purpose claim is in an interlocutory posture, having been remanded for further consideration. As for the §2 claim, the District Court has yet to enter a final remedial order. Petitioners may raise either or both issues again after entry of final judgment. The issues will be better suited for certiorari review at that time.” More information about the case is available at the SCOTUSblog post and the Campaign Legal Center website.

Despite the Court recess, Court-related news and commentary is likely to continue to be relatively heavy, as anticipation builds over Trump’s possible SCOTUS nominee. CNN reports that Trump said in a press conference January 11 that he would likely name his nominee within two weeks of taking the presidential office, so the announcement could be coming soon.

CBS reporter Jan Crawford revealed on Face the Nation on Christmas day that Trump had narrowed his list of possible nominees to five, whom she called “conservative legal rock stars:” Bill Pryor an Atlanta Federal Appeals Court judge; Thomas Hardiman, a judge on the Philadelphia based Appeals Court; Steve Colloton, an Iowa-based judge on the eighth circuit of the U.S. Court of Appeals; Diane Sykes, a judge on the Seventh Circuit. And Joan Larsen, from the Michigan Supreme Court. The Senate confirmation hearings will be a “battle over ideology,” not qualifications, because all of those on the shortlist are highly qualified, she said.

David Lat at Above the Law predicts Sykes will be the nominee. He argues Sykes and Pryor are the two real contenders because, among other reasons, “[t]hey are conservative in terms of methodology, emphasizing Justice Scalia’s themes of textualism, originalism, and judicial restraint. Not surprisingly, they are active in the Federalist Society, aka the legal profession’s vast right-wing conspiracy.” He goes on to say that Sykes has an advantage over Pryor in securing Trump’s nomination because she is an attractive woman, noting that she was nominated for “Superhottie” of the Federal Judiciary in 2004.

In a post-inauguration piece, ABC News profiles those purportedly under consideration (including Sykes and Pryor). In the meantime, Senate Minority Leader Chuck Schumer announced on CNN that the Democrats will “do our best to keep the seat open” if Trump appoints someone who is “out of the mainstream” and cannot attract “bipartisan support.” Majority Leader Mitch McConnell has threatened to invoke the nuclear option — to eliminate the filibuster for Supreme Court nominees — if the Democrats, who do not command a majority in the Senate attempt to filibuster Trump’s nomination. In any event, whomever Trump nominates will be supported by a large, well-funded network, according to the Washington Times. That newspaper reports that a conservative network of activists is launching a $10 million campaign to support the nominee.