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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

This Day in Supreme Court History—November 18, 1811

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

Joseph Story.jpg

[Joseph Story]

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

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

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

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


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

Conference Report – November 10, 2017 Conference

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

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

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

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

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

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

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

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

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

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

The Supreme Court and the Great Tomato Controversy

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

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

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

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

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

Week in Review: Arguments and Opinion from the Week of November 6, 2017

The Court heard oral arguments in only two cases this week, previously discussed here, and it issued its first opinion of the Term. In Hamer v. Neighborhood Services of Chicago, argued on October 10, the Court unanimously held, in an opinion by Justice Ginsburg, that a rule of appellate procedure governing extensions to file a notice of appeal did not create a jurisdictional deadline. Only time limits provided in statutes create jurisdictional bars. ISCOTUS now described the oral argument in Hamer here. Justice Ginsburg prides herself on writing opinions quickly and recently dubbed herself “Rapid Ruth” in a speech, as described by the Associated Press here.

On Tuesday, the Court heard argument Patchak v. Zinke, which presented the question of whether a statute that directed federal courts to “promptly dismiss” any legal action pertaining to a particular tract of land, without amending the underlying substantive or procedural laws and enacted while a lawsuit was pending, violates the Constitution’s separation of powers doctrine.

David Patchak, a resident who lived near the Bradley Property – the tract of land at issue in the case – sued Secretary of the Interior Ryan Zinke in 2008, claiming Zinke lacked the authority to put the tract into a trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the “Gun Lake Tribe”), who subsequently built a casino on the land. After the Supreme Court decided that Patchak had standing to sue in that suit, President Obama signed into law the Gun Lake Trust Reaffirmation Act in 2014, which provided that any legal action relating to the Bradley Property “shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

Scott Gant, representing Mr. Patchak, argued that Congress exceeded its constitutional authority by passing a statute that directs the dismissal of specific litigation. Gant acknowledged that, pursuant to Ex Parte McCardle, a case from 1869, Congress has the authority to statutorily strip jurisdiction from federal courts, but that the Gun Lake Trust Reaffirmation Act in an unconstitutional abridgment of judicial power because it directs the dismissal of a specific lawsuit, rather than passing a law that limits jurisdiction more generally.

Ann O’Connell, Assistant to the Solicitor General in the Department of Justice, represented Zinke. She argued that, because the Court has previously held that Congress may enact jurisdictional rules and apply them to pending cases, such a rule poses no separation of powers problem.

Pratik Shah represented the Gun Lake Tribe, who joined the suit as an intervening defendant. Shah argued that the Court should not rule the Act unconstitutional just because Patchak’s case was the only case at the time that the Act applied to.  “Instead,” he said, “you should look at the words that Congress enacted which was trying to insulate a category of cases. . . from any federal court exercising jurisdiction. That’s precisely what Congress has done for over 150 years dating back to McCardle and in a line of cases since then.”

On Monday, the Court heard arguments in Merit Management Group v. FTI Consulting, Inc. That  case seeks to resolve a circuit split over the scope of a safe harbor provision of the Bankruptcy Code, prohibiting avoidance of a transfer made by or to a financial institution. Under bankruptcy law, when a person or entity declares bankruptcy, some transfers of funds that they made beforehand can be recovered, or “avoided.” The safe harbor provision here protects transfers made to or from financial institutions.

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

Conference Report – November 3, 2017 Conference

As part of its Order List from its November 3 Conference, the Supreme Court on Monday issued two summary decisions reversing lower court rulings in favor of habeas petitioners. It did not otherwise grant review in any new cases.

The first case, Dunn v. Madison, involves the execution of an Alabama inmate who cannot remember his crime due to neurological health issues stemming from a series of strokes. According to the ABA Journal, Madison was sentenced to death for murdering a police office in 1985. His execution is now approaching, and he sought habeas relief due to his memory loss, alleging that because he cannot remember the crime, he is not competent to be executed. The state trial court concluded he failed to show that he is unable to rationally understand that he is being executed as punishment for murder. He sought habeas relief, and the federal judge held the state trial court made a reasonable decision and correctly applied precedent — all that is required under the governing statute, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Eleventh Circuit reversed, holding that because Madison does not recall the offense, he cannot possibly understand the connection between the crime and his execution.

In a unanimous per curiam opinion, the Supreme Court reversed and stated precedent has not established that “a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment.” Justice Ginsburg, joined by Justices Sotomayor and Breyer, concurred, explaining that the issue presented is substantial and important and would be worthy of the Court’s attention if brought on direct appeal. Because the case came to the Court on habeas, however, AEDPA, it could not address the issue directly and was limited to determining if the state court’s holding was not an unreasonable application of “clearly established Federal law as determined by the Supreme Court.”

In addition to joining Justice Ginsburg’s concurrence, Justice Breyer wrote a concurrence solely on his own behalf. Justice Breyer pointed to constitutional questions due to the aging class of inmates on death row. He wrote that the “lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rational.” As Robert Barnes of The Washington Post noted, “no conservative justice rebutted him, [although i]n the past, they have alleged that it is the numerous appeals and creativity of defense lawyers that have postponed the imposition of the death penalty.” Breyer also raised the issue of the constitutionality of the death penalty itself, something that he suggested the Court should consider in his opinion in Glossip v. Gross.

In the second case, Kernan v. Cuero, Michael Cuero pleaded guilty to two charges after he caused a car accident while under the influence of methamphetamines and left another man injured. Cuero was on parole from previous drug related offenses and was unlawfully carrying a firearm with him at the time of the accident. As explained by Court House News, his original plea bargain carried a maximum sentence of 14 years in prison, but prosecutors sought to amend the original criminal complaint after the plea deal and before the sentencing date. They argued that due to his other previous offenses, Cuero fell under California’s “three strikes” law, meaning that he was eligible for a much longer sentence. Although the trial court allowed him to withdraw his guilty plea, he ultimately pleaded guilty again and was sentenced to 25 years to life.

On habeas review, Cuero argued that the state courts should have enforced the original plea deal. The Ninth Circuit held that the trial court wrongly refused to do so. The Supreme Court however, applying AEDPA, held that, “to the contrary, no ‘holding of this court’ requires the remedy of specific performance under the circumstances present here,” and thus reversed the lower court decision, thus upholding Cuero’s conviction and sentence. The opinion in Kernan was an unsigned per curiam opinion and there were no separate opinions.

This post was drafted by Matthew Webber and edited by Elisabeth Hieber, both ISCOTUS Fellows and members of Chicago-Kent Class of 2019.

Arguments: Week of November 6, 2017

The Court will hear only two arguments this week — one each on Monday and on Tuesday. It has also indicated that the first opinion(s) may be issued on Wednesday. In addition, orders from last Friday’s Conference will be released on Monday.

On Monday, the Court will hear oral arguments in a bankruptcy case, Merit Management Group, LP v. FTI Consulting, Inc. In this case the Court is being asked to resolve a circuit split about when funds transferred before a bankruptcy can be recovered by the bankruptcy trustee.

Tuesday the Court will hear Patchak v. Zinke, which poses the question of whether Congress violated the separation of powers principle of the Constitution when it passed legislation mandating federal courts to dismiss a lawsuit. David Patchak, a Michigan resident, sued Ryan Zinke, Secretary of the Department of Interior, for allotting a tract of land to the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino near his property. After the case was under way — in fact, after the Supreme Court determined that sovereign immunity did not preclude it — Congress passed the Gun Lake Trust Land Reaffirmation Act, which provides that any case relating to the land at issue be “promptly dismissed,”, but that made no substantive changes to the governing law. The Government contends that this provision does not violate the Constitution because Congress has the ability “to define and limit the jurisdiction of the inferior courts of the United States.” Marcia Coyle of PBS NewsHour describes the issues in the case, explaining that, “[s]eparation-of-powers issues go to the fundamental structure of our Constitution.”  The case also poses the question of whether a statute that does not amend a substantive or procedural law, but deprives a petitioner the right to pursue his pending lawsuit, violates the Fifth Amendment’s Due Process Clause.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019.

Week in Review: Arguments from the Week of October 30, 2017

This week, the Supreme court heard arguments in four cases. As our weekly preview explained, this week’s cases raised questions about habeas procedure and appellate review standards, and reviewed the meaning of the tolling provision for state court claims in supplemental jurisdiction cases.

On Monday, the Court heard arguments in two cases. The first was Ayestas v. Davis.  This case involves 18 U.S.C. §3599(f), which provides funding for indigent habeas petitioners to hire mitigation specialists – expert or investigative assistants – to help develop claims about ineffective counsel in capital cases. The case raises the question of whether a capital defendant who requests such funds should have to meet the Fifth Circuit threshold of showing “substantial need” for such services on a “viable” and not merely speculative claim, or rather meet the somewhat lower standard that such services are “reasonably necessary.”

Ayestas’ counsel, University of Maryland law professor Lee Kovarsky, argued that “reasonably necessary” should be understood as what a reasonable attorney for a client with finite means would find necessary. The New York Times gave an account of the debate about the distinction here. Kovarsky further argued that by using the higher standard, the Fifth Circuit is effectively requiring counsel to conduct a full investigation into his client’s ineffectiveness of counsel claim to affirm that it is viable before he would be allowed to request funding for the experts that could assist in making such a claim.  Scott A. Keller, the Solicitor General of Texas, argued that the Supreme Court did not have jurisdiction because a claim of funds under the CJA (Criminal Justice Act) is an administrative request and is outside of the purview of judicial power. This argument generated skeptical questioning from Justices Sotomayor and Breyer. Keller further argued that Ayestas’ trial representation was not deficient in a way that prejudiced Ayestas. Transcript available here. SCOTUSblog has more here.

Monday’s second case was Wilson v. Sellers. According to Jurist, this case asks whether a court sitting in habeas proceedings should “look through” a summary state court ruling to the last reasoned decision, or whether the Court’s decision in Harrington v. Richter nullifies such a presumption. In this case, the Eleventh Circuit, en banc, held that a Georgia Supreme Court’s one-sentence order was the final adjudication on the merits and thus the relevant state court decision for the federal courts to review on habeas.

Mark E. Olive, Wilson’s lawyer, argued that the holding in Richter should be applied narrowly so that the state supreme court’s summary order denying his client’s appeal would be the type of order that a federal habeas court could “look through” to review a lower court’s denial of relief. Sarah Hawkins Warren, Solicitor General of Georgia, argued that 28 U.S.C. § 2254(d) does not require that the court offer reasoning or a statement of opinions when ruling on a CPC request. Transcript available here. SCOTUSblog has a more detailed argument analysis here.

Tuesday, the court heard arguments in U.S. Bank National Association v. Village at Lakeridge, LLC. The question presented is whether, in a bankruptcy proceeding, a trial court’s decision that an individual is, or is not, a non-statutory insider should be reviewed under a standard of clear error or de novo. Gregory A. Cross, counsel for the creditor, U.S. Bank National Association, argued that the case presents a mixed question of law and fact – that the legal test the Ninth Circuit articulated was a two-pronged test to determine a) whether the parties’ relationship was sufficiently close that it could be compared to a relationship between statutory insiders, and b) whether the parties transacted at arm’s length. Cross further argued that the guidelines and principles that govern the application of the standard to the underlying historical facts of a case are a question of law and therefore whether an individual is a non-statutory insider should be determined by de novo review. Daniel L. Geyser, arguing for the debtor, the Village at Lakeridge, LLC, argued that the question about whether the parties transacted at arm’s length is a question only of fact and therefore should be reviewed only for clear error. Geyser was joined in this argument by Morgan Goodspeed on behalf of the U.S. Solicitor General. During oral argument, it became clear that the standard of review may only make sense if the Court also reviews the legal standard for determining whether an individual is an insider. According to Jurist, the court may have to take up the legal standard question before being able to determine whether an individual’s non-statutory insider status is a question of law or fact. If this were to occur, the Court could request additional briefing and set the case for re-argument, or chose instead to dismiss the case entirely. Transcript available here. SCOTUSblog has more here, including an explanation of the significance of being an “insider” for purposes of bankruptcy law.

Finally, on Wednesday, the Court heard arguments in Artis v. District of Columbia. The issue presented in this case is whether the tolling provision in 28 U.S.C. §1367(d) freezes the statute of limitations “time clock” on tag-along state court claims or only suspends the statute of limitations for 30 days after a supplemental jurisdiction case is dismissed from federal court. Adam G. Unikowsky, counsel for Artis, noted that statutes most commonly stop the clock on a statute of limitations. Unikowsky also argued that there are several reasons refiling in state court may take longer than 30 days, including possibly rewriting the complaint based on new facts that came out in discovery or state pleading rules differing from the federal pleading rules; figuring out which state or court to file in; and finding a new lawyer who specializes in state court proceedings. Loren L. Alikhan, Deputy Solicitor General, Washington, D.C., argued that the statute’s 30-day grace period and “express and self-conscious deference” to a state’s ability to set a longer tolling period for supplemental jurisdiction claims makes §1367(d) a fundamentally different type of tolling scheme. Alikhan further argues that a case dismissed without prejudice is treated as if it had never been brought – meaning that the statute of limitations has been running the whole time the claims were pending in federal court. The 30-day grace period protects the litigant by providing time to file otherwise time-barred complaints in state court while protecting defendants from complaints being filed years after the claim had accrued. Transcript available here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and was edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019.

Conference Report – October 27 Conference

On Monday, the Court released its Order List from the October 27 Conference. It didn’t add any new merits cases to the docket, but there were still a few noteworthy orders. In one closely watched case, the Court denied certiorari in 616 Croft Ave., LLC et al. v. West Hollywood, CA. The builders of a proposed condominium unit were required, by a City of West Hollywood ordinance, to pay an “affordable housing fee” of $540,393.28 to subsidize the construction of low-cost housing in the city. This requirement kicked in automatically upon approval of the building permit, without any need of the City to show that the project in question created a need for low-cost housing. The issue in 616 Croft Ave is whether a permit condition that is legislatively mandated is subject to scrutiny under the doctrine of unconstitutional-conditions. In the petition for writ of certiorari filed for this case, reasons for granting the writ centered around the Takings Clause of the Fifth Amendment, and the limitations it might place on a government’s authority to require private property owners to dedicate private property to public use via the permit process. The Court had considered this case at the previous four conferences prior to October 27, and now that they have decided not to take up the property rights issue presented in 616 Croft Ave, the previous ruling in favor of the City of West Hollywood will stand. In response to the Court’s decision not to consider this case, West Hollywood’s attorney Mike Jenkins said “[t]he city is pleased that its efforts to create housing for people at all economic levels in our community remains intact.” On the other side of the coin, the Cato Institute argued in its amicus brief that this case demonstrates how “municipalities and counties have devised schemes to evade the prohibition on uncompensated takings.” In Lexology, David L. Preiss explains what denial of certiorari means for housing in California, noting the state’s cities “are now relatively unrestricted in their adoption of inclusionary housing ordinances as they apply to ‘ownership’ projects, both as to ‘set aside’ and ‘in lieu fee’ provisions, and they probably do not need to conduct any formal ‘nexus’ studies to support them.”

The joint motion to defer consideration of the petition for writ of certiorari was granted in Pacific Gas & Electric Co. v. United States. The issues in Pacific Gas & Electric Co. stem from the restructuring of the energy markets in the State of California during the late 1990s, designed to make wholesale electricity go through two main market exchanges, facilitating sales between buyers (such as the Petitioners) and sellers. There are two questions presented in this case: (1) whether selling energy through centralized market exchanges forms a contractual relationship between buyers and federal agencies selling the energy, thus giving the Court of Federal Claims jurisdiction over lawsuits filed by buyers to recover for overcharges; and (2) whether Pacific Gas and Electric Co. was in such a relationship with the federal agencies for those sales.

The motions for leave to proceed in forma pauperis in both Modrall, Robert G. v. Deutsch, Kimberley, et al. and In Re Raymond L. Rogers were denied. Motions for leave to proceed in forma pauperis are filed when a petitioner is seeking to proceed without paying the normal costs associated with the cost of being in court. If leave to proceed in forma pauperis was granted in a lower court (i.e., counsel was appointed for an indigent party), then no additional affidavit stating proof of the need for waiving fees is required and the petitioner need only cite the relevant law or attach the order of appointment.  The motions for leave to proceed in forma pauperis here were denied because of Rule 39.8, which states that if the Court finds that a petition for writ of certiorari or a related petition is either frivolous or malicious, the Court can deny leave to proceed in forma pauperis. Robert M. Yablon of the Yale Law Journal dives into the certiorari process with a particular focus on current Supreme Court Justice Sotomayor. In his interesting piece, Yablon notes “in forma pauperis petitions account for the vast majority of the petitions the Court receives–some seventy-five to eighty percent. Yet, in most years, they account for less than twenty percent of the Court’s grants of certiorari.” The petitions for writ of certiorari and writ of habeas corpus, respectively, were dismissed in Modrall and In Re Raymond.

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

Senator Warren, the Supreme Court, and Judicial Ethics

Senator Elizabeth Warren is worried about conflicts of interest on the Supreme Court. Unlike all other federal courts, the Supreme Court has no formal code of conduct. Supreme Court justices are largely on their own when it comes to off-the-court activities and deciding when to recuse because of a conflict of interest.

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In a Politico article  titled “The Supreme Court Has An Ethics Problem,” Senator Warren crticizes Justice Neil Gorsuch’s recent keynote speech at a luncheon that the Fund for American Studies hosted at Trump International Hotel. The Fund for American Studies is subsidized by the Bradley Foundation, which, Senator Warren explains, is also funding a constitutional challenge to public sector unions that the Court will be hearing this term in Janus v. American Federation of State, County, and Municipal Employees. Since the Court split 4-4 when faced with this very same issue last term, it is highly likely that Justice Gorsuch will cast the deciding vote in this case.

Senator Warren concludes her article by announcing that she is co-sponsoring the “Supreme Court Ethics Act,” which would require the Court to adopt a formal code of conduct that would be aimed toward “eliminating ethical questions and conflicts of interests.”


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

Arguments: Week of October 30, 2017

The Supreme Court will hear arguments on Monday, Tuesday, and Wednesday of this week. Monday’s cases, which are both capital cases, present questions about habeas procedure. Tuesday’s cases are about appellate review standards.  The argument on Wednesday will review the meaning of the tolling provision for state court claims in supplemental jurisdiction cases.

The first case the Court will hear on Monday is Ayestas v. Davis, a case appealed from the Fifth Circuit. As The Washington Examiner explains, Ayestas, a Honduran national, was sentenced to death for the murder of a woman during a home invasion.  On federal habeas review, he claimed that his trial counsel was ineffective and failed to uncover evidence regarding his upbringing and mental illnesses, evidence that might have persuaded the jury not to sentence him to death. He moved for funding under 18 U.S.C. §3599(f) to hire mitigation specialists to help develop this claim. That statute provides funding to capital defendants when expert or investigative assistance is “reasonably necessary.” The district court denied the motion based on Fifth Circuit precedent providing that investigative assistance is available only if the habeas petitioner can show a “substantial need” for such assistance by fully describing the underlying claim and showing that it is “viable.” The Fifth Circuit affirmed. Ayestas argues that the 5th Circuit’s test for “substantial need” is inconsistent with the statute and with congressional intent and that the current test interferes with federal habeas counsel’s ability to provide meaningful representation to habeas petitioners by creating obstacles in the development and investigation of constitutional claims. The American Bar Association filed an important amicus brief underlining the second argument that the Fifth Circuit’s approach makes it difficult or impossible for counsel representing habeas petitioners to meet their professional duties. For more information check out SCOTUSblog’s detailed argument preview.

Monday’s second case is Wilson v. Sellers, a capital case from Georgia. As SCOTUSblog explains, The Court will have to determine whether a federal court sitting in habeas proceedings should “look through” a summary state court ruling to the last reasoned decision as held in Ylst v. Nunnemaker, or if the Court’s decision in Harrington v. Richter nullifies such a presumption. In this case, petitioner Marion Wilson was convicted and sentenced to death for his role in the 1996 murder of a Georgia corrections officer. Wilson appealed claiming ineffective assistance of counsel and the habeas court denied the relief despite substantial evidence. In an en banc decision, the Eleventh  Circuit held that the state Supreme Court’s one-sentence order was the final adjudication on the merits under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and thus the relevant state court decision to review, rather than the previous and more in-depth decision from the state’s habeas court. The distinction matters because AEDPA requires substantial deference to the findings and holdings of the state court, although Wilson argues that in a significant majority of cases looking through a summary state court decision to a reasoned opinion from a lower court will not change the result. Instead, he argues that this approach will allow the analysis to shift from what the state court might have said to what it actually said. This analysis would be less burdensome and costly to the states, would respect comity and federalism, and would not upset the high bar to relief that was set under AEDPA.

In U.S. Bank National Association v. Village at Lakeridge, LLC, to be argued on Tuesday, the issue is whether, for bankruptcy purposes, a trial court’s determination that individual is (or is not) a non-statutory insider should be reviewed under a standard of clear error or de novo. For a detailed review of the issue in this case check out SCOTUSblog and Law360. Finally, on Wednesday, the Court will hear Artis v. District of Columbia. In Artis, the issue is whether the tolling provision in 28 U.S.C. §1367(d) suspends the statute of limitations for 30 days after a claim dismissal, or does it freeze the statute of limitations “time clock.” Artis was a government employee who was fired after she filed a discrimination suit against the District of Columbia Department of Health, her employer. 28 U.S.C. §1367 allows supplemental jurisdiction, through which a litigant can file factually-related state and federal claims in federal court, provided that the federal court has subject-matter jurisdiction over the federal claim(s). When this occurs, the federal court can hear the state court claims, even if they would generally not be adjudicated in federal court. However, if the federal court rejects the federal claim that was necessary to bring the tag-along state claims, the unresolved state claims can be dismissed without prejudice. The question before the court next week will focus on how long the plaintiff has, once the state claims are dismissed in federal court, to refile in state court. For more on the potential ramifications of this case from SCOTUSblog, click here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020 and edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019.