All posts by C-K Editor

The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

On this day in Supreme Court History—April 10, 1869: Getting to Nine

On this day in 1869, Congress increased the number of justices on the Supreme Court from seven to nine—where it has remained ever since. (Whether the number should remain at nine has been a point of renewed attention in recent months.)

In 1866, Congress had reduced the number of Supreme Court justices to seven. Republicans who controlled Congress were battling President Andrew Johnson (a Democrat who had assumed office when Lincoln was assassinated), and they sought to deny Johnson any appointments to the Court. By 1869, Ulysses Grant, a Republican, had replaced Johnson, and Congress expanded the number of justices. Senator Lyman Trumbull sponsored the Judiciary Act of 1869, which, in addition to setting the number back to nine, also required six justices to form a quorum. President Grant signed the legislation and then nominated William Strong and Joseph Bradley to the newly restored seats.

The Act contained other notable provisions. It allowed all federal judges (including Supreme Court justices) to retire with full salary after serving for at least 10 years, provided they had turned 70. Previously, federal judges had no incentive to leave the court before their death, as the government offered no retirement benefits. The Act also created separate circuit judges for the circuits, and it allotted each Supreme Court justice one of the nine circuits in which that justice had to attend at least one term in each of the circuit’s districts every two years.

This Post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

On this day in Supreme Court History—March 3, 1801: The Midnight Judges

On this date in 1801, John Marshall—at the time simultaneously serving as President John Adams’s Secretary of State and Chief Justice of the United States—signed the commissions of the “midnight judges,” setting in motion events that would lead to the landmark Supreme Court case Marbury v. Madison. The ruling, written by none other than Chief Justice Marshall, gave the Court its first opportunity to strike down an act of Congress and thereby established the practice of judicial review or the power of the Court to declare laws unconstitutional.

Among these last-minute appointments was William Marbury, whom President Adams appointed as a Justice of the Peace for the District of Columbia. Adams’s intentions were clear: he sought use the closing days of his administration to push through as many federal judges and other appointees as he could before President Thomas Jefferson, who defeated him the previous November, took  office. When President Jefferson took office on March 4, he refused to deliver the commissions of the midnight judges. Marbury petitioned the Supreme Court to order Jefferson’s Secretary of State, James Madison, to deliver his commision and finalize his appointment.

In his opinion of the Court, Marshall held that Marbury had come to the wrong court. The Constitution, he concluded, allowed the Supreme Court “original jurisdiction” in only a limited number of specified situations, and they did not include the kind of order Marbury asked for. Since Marbury was only following the guidelines of a provision of the Judiciary Act of 1789, Marshall concluded that this provision was unconstitutional. Jefferson denounced the Court’s bold assertion of its own authority to strike down an act of Congress, but Marshall had given him nothing to defy, since it was the Court itself that was refusing the grant of power in the Judiciary Act. It was a brilliant move on Marshall’s part, and the ruling proved a critical foundation for the expansion of the Court’s authority in the coming years.

This Post was Written by ISCOTUS Fellow Clayburn Arnold, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

Tuesday Oral Argument Report

On Tuesday, February 19, the Court heard oral arguments in Return Mail, Inc. v. USPS. The issue in the case is whether, under the America Invents Act (AIA),  the government is a “person” who can petition the United States Patent and Trademark Office to review patent validity. Return Mail, the petitioner, owns a patent involving the processing of undeliverable mail items due to incorrect or obsolete addresses for the intended recipient. After Return Mail unsuccessfully attempted to license the patent to the US Postal Service, Return Mail filed suit against USPS alleging “unlicensed and unlawful use and infringement of the patent.”

In response, USPS filed a petition to the Patent and Trademark Office’s Patent Trial and Appeal Board asking for the Board to void the patent. Return Mail countered that USPS lacked statutory standing to establish any review proceedings under the AIA. Return Mail argues that the AIA intended a meaning of “person” that excludes the government and therefore government agencies cannot initiate AIA review proceedings. USPS contends that historical evidence and Supreme Court statements show that Congress intended to include government agencies as a person, at least in the context of the AIA. The United States Court of Appeals for the Federal Circuit held that “person” under the AIA did not exclude government agencies and therefore the government could petition for a patent review. Return Mail is appealing that Court of Appeals decision.

Oral argument was lively, with Justice Ginsburg, back on the bench for the first time since undergoing cancer surgery, asking the first question. It was hard to tell from oral argument which way the Court is likely to come out in the case. Recaps of oral argument can be found at SCOTUSBlog and  IPWatchdog has a

This Post was Written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

On this day in Supreme Court History—February 18, 1988: Justice Anthony Kennedy Takes the Oath of Office

On this day in 1988, Justice Anthony Kennedy was sworn in as the 104th Justice of the Supreme Court.

President Ronald Reagan nominated Kennedy as an Associate Justice on November 12, 1987. Kennedy was Reagan’s third attempt to fill the seat of Justice Lewis Powell, who had retired the previous June. Reagan’s first two nominations failed: Judge Robert Bork was rejected by the Senate; and then Douglas Ginsburg withdrew his name from consideration after revelations involving his use of marijuana. In nominating Kennedy, Reagan said that Kennedy, who had been serving on the U.S. Court of Appeals for the Ninth Circuit since 1975, ”seems to be popular with many senators of varying political persuasions.” Reagan’s assessment proved correct. The Senate confirmed Kennedy by a vote of 97-0 on November 30, 1987.

On February 18, 1988, Chief Justice William Rehnquist administered the judicial oath (required of all federal judges) to Justice Kennedy in the Supreme Court chamber. Justice Kennedy then took his seat on the far right side of the bench, reserved for the most junior member of the Court. Later that day, the Chief Justice gave Justice Kennedy his Constitutional Oath of Office (required of all federal employees) at a White House ceremony.

At the White House ceremony, Reagan gave a brief speech, after which Rehnquist gave brief remarks thanking the president for holding the ceremony at the White House. After Rehnquist administered the oath, Justice Kennedy gave a speech thanking the President and the Chief Justice. “The presidency, the Congress, and the courts,” Kennedy said, “are committed to the constitution and to the rule of law, and to the heritage of freedom.” In his concluding remarks, Reagan said that Kennedy’s career, like that of Justice Powell’s, “has been marked by his devotion to a simple, straightforward, and enduring principle: that we are a government of laws, not of men.”

Kennedy served on the Court until his retirement on July 31, 2018.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

On this day in Supreme Court History—February 15, 1932: Benjamin Cardozo Nominated to the Supreme Court

On this day in 1932, President Herbert Hoover nominated Benjamin Cardozo to the Supreme Court.

Hoover, a Republican, nominated Cardozo, a Democrat, to replace Oliver Wendell Holmes, Jr., who had retired at age 90. Although Cardozo was a Democrat, he had support from across the political spectrum. Cardozo had served for 18 years on the New York Court of Appeals, first as an Associate Judge and then as Chief Judge, and his reputation had grown nationwide. Cardozo had written several respected books, including his 1921 classic The Nature of the Judicial Process. He had also received honorary degrees from numerous universities, including Harvard, Yale and Colombia, his alma mater, where he entered the undergraduate school at age 15, graduated at the top of his class, and then attended, but did not graduate from, the law school.

Although the brilliant jurist had few critics, some felt Hoover could have been more strategic in his nomination. Cardozo was from New York, and two other New Yorkers—Harlan Fiske Stone and Charles Evans Hughes—were already on the Court. Justice Louis Brandeis, the first Jewish justice, was still on the Court.

Yet Cardozo had two powerful Republican Senators on his side: William Borah of Idaho, chairman of the Foreign Relation Committee, and George Norris of Nebraska.

Hoover talked to Borah the day before his announcement. The President showed Borah a list of potential nominees in descending order of Hoover’s preference. Hoover had misspelled Cardozo’s name at the bottom, along with the three qualities that he considered strikes against him: “Cardoza [sic] –Jew, Democrat, New York.” Borah glanced at it, and, believing Cardozo should be at the top, told Hoover, “Your list is alright, but you handed it to me upside down.”

Borah reportedly told Hoover, “Cardozo belongs as much to Idaho as to New York,” and “geography should no more bar the judge than the presence of two Virginians—John Blair and Bushrod Washington—should have kept President Adams from naming John Marshall to be Chief Justice.”  As for Cardozo’s being a Jew, Borah reportedly told Hoover, “Anyone who raises the question of race is unfit to advise you concerning so important a matter.”

The Senate Judiciary Committee unanimously approved Cardozo’s nomination on February 20, and the full Senate unanimously confirmed his nomination by voice vote, without debate or roll call, four days later.

Two days after his confirmation, Cardozo sent a handwritten note to Justice Holmes: “I know, of course, that I can never fill your place, but if fills me with pride and joy to be told that you are satisfied to have me there.”

Justice Cardozo took his oath of office March 14, 1932. He served until July 9, 1938.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

Court Stays Louisiana Abortion Law

A Louisiana law, the Unsafe Abortion Protection Act (Act 620), has been blocked by the Supreme Court. Passed in 2014, the law would prohibit a physician from performing an abortion if the physician was not admitted to practice at a hospital within 30 miles of the location at which the abortion is performed. Two Louisiana physicians filed an emergency stay request to prevent the law from taking effect. Critics of the law provide that this would leave the state, which has nearly a million women of reproductive age, with only one doctor in a single clinic eligible to perform abortions.

Act 620 has been blocked since its enactment and is nearly identical to a Texas law which the Court struck down in Whole Woman’s Health v. Hellerstedt on a vote of 5-3. In the decision, the Court held the Texas law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.” Justice Kennedy sided with the liberal justices on the bench to cast the critical fifth vote.

A panel of the U.S. Court of Appeals for the 5th Circuit upheld the Louisiana law on a 2-1 vote. The full court, which is considered one of the most conservative of the appeals courts, voted not to reconsider the decision of the panel on a 9-6 vote. Four of the nine judges who case the vote to allow the panel’s opinion have been appointed by President Trump. In distinguishing this law from Hellerstedt, the panel reasoned that a majority of abortion providers in Louisiana did not make a “good faith” effort to obtain admitting privileges, which are easier to obtain in Louisiana than in Texas. One of the dissenting judges stated the judges in the majority relied on “strength in numbers rather than sound legal principles to reach their desired result in this specific case.”

The Supreme Court, in a 5-4 vote, granted the stay with Chief Justice John Roberts siding with the Court’s liberals. However, as CNN Reports, the order will not prevent the Court from possibly taking up the case in the future. In dissent, Justice Kavanaugh argued that the stay is premature and unnecessary, as the law had a built-in 45 day “transition” period to see the law’s impact.

Check out The Washington Times, Fox News, NBC News, and The Washington Post for more information on the order.

This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

Oral Argument Analysis for January 16, 2019—Ripeness, Takings, & Alcohol Regulation

           The Court heard oral arguments in two cases on Wednesday, January 16, 2019. First up was Knick v. Township of Scott, Pennsylvania, in which the Court is being asked to decide two questions: (1) whether to uphold the ripeness doctrine of Williamson County Regional Planning Commission v. Hamilton Bank (a rule that property owners must exhaust their state court options to ripen a federal takings claim); and (2) whether the Williamson County rule applies to a takings claim asserting that a law is unconstitutional on its face. Petitioner Knick argued that the interpretation of the Fifth Amendment’s Just Compensation Clause should be the same regardless of whether a claim is brought against a local government entity or against the United States in a claim under the Tucker Act.  Respondents countered by noting that permitting all takings plaintiff to go straight to federal court would upset the congressionally created balance of authority between state and federal courts. This is the second time that the Court has heard oral arguments in Knick; the was on October 3, 2018 before the confirmation of Justice Kavanaugh. More coverage on this year’s arguments can be found in this Forbes article and this Daily Caller article.

           The second case argued was Tennessee Wine & Spirits Retailers Association v. Blair, in which the Court is being asked to decide whether states, consistent with the Dormant Commerce Clause, can regulate liquor sales by granting liquor licenses only to individuals or entities that have resided in the state for a specified period of time.

Petitioner Tennessee Wine & Spirits argued that their policy is justified under the Twenty-First Amendment, the 1933 amendment that repealed Prohibition.  The purpose of the Twenty-First Amendment, they argue, was to constitutionalize states’ pre-Prohibition powers, which included the power to discriminate against out-of-state interests. They contested that protectionist policies that might otherwise violate the Dormant Commerce Clause are constitutional because they involve the regulation of alcohol and therefore are justified under the Twenty-First Amendment. Respondents counter that if a statute’s only purpose is to be protectionist of local industries, that statute ought to be considered an unconstitutional discrimination against out-of-state economic interests, and that the Twenty-First Amendment does not immunize this regulation from Dormant Commerce Clause scrutiny. Respondent further argued that Tennessee’s interest in protecting against alcohol can be fully achieved without the durational residency requirements. Coverage of the arguments and the case can be found in this WREG News article, this Forbes article, and this Wine Spectator article. The Jurist also briefly summarizes both cases.

This Article was Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Oral Argument Analysis for January 15—Defendant Removal & Rule-Making Authority

On January 15, the Court heard oral arguments for two cases: Home Depot v Jackson and Azar v. Allina Health Services. Justice Ginsburg is recovering from lung cancer surgery she underwent last month and was not in attendance.

In Home Depot, Citibank sued George Jackson in North Carolina state court for debt collection. Jackson then brought a counterclaim against Citibank but also added third-party class action claims against Home Depot and Carolina Water Systems, Inc. (CWS). Jackson’s counterclaim asserted that Citibank, Home Depot, and CWS were misleading customers about their water treatment systems and financing thereof.

When Citibank dismissed its original claim against Jackson, Home Depot petitioned to remove its counterclaim to federal court under the Class Action Fairness Act of 2005. But then the federal district court granted Jackson’s request to remand the case back to state court, on the basis that since Home Depot was not technically a defendant, it could not remove the case to federal court. Meanwhile, Jackson dropped his counterclaim against Citibank, eliminating them from the case. Home Depot and CWS appealed the district court’s decision to remand to state court to the Court of Appeals for the Fourth Circuit. Home Depot based its appeal on two arguments: that the term “defendant” should be read to allow third-party defendant’s to remove a case from state to federal court; and that since Citibank was no longer a defendant, Home Depot should be recognized as the “defendant” rather than a “third-party defendant.” The Fourth Circuit affirmed the district court ruling, and Home Depot petitioned the Supreme Court for a writ of certiorari, which the Court granted.

Oral arguments revealed a Supreme Court with mixed opinions on the case. Justice Kagan indicated disagreement with Home Depot’s argument. She went so far as to state that the plaintiff’s complaint doesn’t have any claims that belong in federal court and questioned the authority of Home Depot to remove under 28 U.S. Code § 1441 (a). Justices Sotomayor and Breyer echoed Kagan’s comments. But Chief Justice Roberts and Justice Alito seemed to lean in the other direction, pressing Jackson’s counsel. “But in the ordinary sense of the term are they not defendants?” Alito asked, adding, “They are some kind of defendants.”

Audio of the oral arguments is available here; a transcript can be accessed here.

In Azar, the Court is asked to determine whether or not the Department of Health and Human Services (HHS) erred by not providing public notice and comment on a rule change which altered the calculations used in Medicare reimbursement payments. Medicare, which helps provide Americans over age 64 with health insurance, is divided into several parts. They inclue Part A, in which the government directly administers health insurance to enrollees, and Part C, in which the government subsidizes enrollees to obtain private insurance plans. HHS issued a rule that provided that Medicare Part C enrollees are entitled to benefits under Part A. After the United States Court of Appeals for the District of Columbia ruled that an opportunity for public notice and comment was required before issuing such a rule. the Court granted petition for writ of certiorari by HHS Secretary Alex Azar.

Justices Kagan, Sotomayor, and Gorsuch questioned the government’s interpretation of statutory language regarding substantive changes and public notice and comment requirements. Justices Breyer and Gorsuch pointed out that the legislative history of the Medicare Act is “confused.” HHS pointed to the negative consequences for the agency if it would have to go through the public vetting process for all substantive changes, stating there are “thousands of pages of regulations, but the Court has recognized that [it] can’t answer all questions that come up.” Counsel for Allina and other hospitals dismissed the government’s warnings, arguing that the provision in question would only apply to roughly 35 pages of Medicare manuals.

Justice Kavanaugh has recused himself from the case because he wrote a circuit court decision invalidating the HHS formula.

Audio of the oral arguments is available here; a transcript can be accessed here.

This Post was Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

 

January 14 Oral Arguments: Tort Immunity and Copyright Litigation Costs

On Monday, January 15th, the Supreme Court heard oral arguments in two cases involving statutory interpretation. Thacker v. Tennessee Valley Authority (TVA) raises the question of whether the TVA is immune from tort liability as a government entity. Gary Thacker and a friend were fishing on the Tennessee River. At the same time, the TVA was attempting to raise a downed power line that was above the part of the river Thacker and his friend was located. An electrical component hit Thacker, severely injuring him, and his friend, killing him instantly.

Thacker attempted to sue TVA, alleging negligence. The TVA Act, which created the TVA,  provides that TVA is a corporate entity that can be sued. However, the district court dismissed Thacker’s suit on the basis of governmental discretionary function immunity. The issue in the case involves whether that immunity is available to the TVA. A discretionary function immunity provision is codified in the the Federal Tort Claims Act of 1946 (FTCA), which allows individuals to sue the federal government for tort liability. But the TVA is not covered by the FTCA. As a result, the issue before the Court involves when and whether to infer such an immunity into the TVA Act. You can read more about the question on Jurist, and the Federalist Society has posted a helpful video explanation.

The second case the court heard, Rimini Street, Inc. v. Oracle USA, Inc., involves the scope of costs that can be awarded to a plaintiff under the Copyright Act. The Court might read the statute to authorize the same relatively narrow set of costs that are taxable in most litigation or a broader set of costs that would “come closer to compensating a party for all of its litigation costs.” You can read more at The National Law Journal.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

Oral Arguments: Native American Tribal Rights and Copyright Requirements

The Supreme Court delved into the complicated history of the relationships between the federal government and Native American tribes on Tuesday, January 8, in Herrera v. Wyoming. In January 2014, Clayvin Herrera, a member of the Crow Tribe in Montana and a tribe game warden, went hunting to find food to feed his family. He, along with other fellow tribe members, shot and killed three elk on land in the Big Horn National Forest outside of their reservation. In 2015, Herrera was cited by Wyoming authorities for hunting during closed season and without a state license — laws that do not apply on the reservation itself — and was convicted.

Although this incident occurred recently, the validity of Herrera’s conviction depends on whether and how the Supreme Court will choose to enforce an 1868 treaty between the Crow Tribe and the United States, which gave the tribe “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.” Because the treaty was created in 1868 and Wyoming did not gain statehood until 1890, the first question the Court must answer is whether the treaty survives Wyoming’s statehood. There is case law indicating that the treaty did not survive, but there is subsequent case law calling those holdings into question. If the Court decides that the treaty remains in operation, the next issue is whether the land in the Bighorn National Forest constitutes “the unoccupied lands of the United States.” Check out SCOTUSblog, Time Magazine, Indian Country Today, and  Great Falls Tribune for more information on this case and the arguments presented by both sides.

Also on January 8 the Court considered what someone has to do before filing a copyright infringement lawsuit in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. Although copyright owners do not have to register with the Copyright Office to have rights, registration is a prerequisite to filing an infringement suit. When the plaintiff in this case filed its lawsuit for copyright infringement, it had only filed an application to register its potentially infringed copyrights but the copyright office had not yet registered the claims. Therefore, the issue is whether the registration of a copyright claim is complete when the copyright holder “delivers the required application, fees, and materials to the copyright office” or if it is complete only when the copyright office has approved the application. Check out the Trademark and Copyright Law Blog and World Intellectual Property Review for commentary on how the Court’s decision could impact copyright owners.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.