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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

In Depth: McCoy v. Louisiana

McCoy v. Louisiana is a capital case in which the defendant’s lawyer, Larry English, conceded that the defendant had killed his alleged victims in the hopes of avoiding a death sentence. The defendant, Robert McCoy, expressly and repeatedly objected to this strategy; he was very clear that he wanted to maintain his innocence. Shortlybefore trial, McCoy asked for leave to discharge his counsel and to represent himself because of this disagreement. The trial court denied the request, concluding that the decision of what defense to present was a strategy decision for the attorney to make. In his opening statements, English repeatedly stated that McCoy was guilty, both in his opening and closing arguments, arguing for second degree murder. McCoy, on the other hand, exercised his right to testify, claiming that he was innocent and presenting his alibi.

Despite English’s efforts to get his client found guilty of second degree murder to avoid the death penalty, a jury found McCoy guilty of first degree murder and sentenced him to death. (English has spoken publicly about his role in this case, admitting that he fell into a deep depression after the case.) McCoy’s appeal was denied by the Louisiana Supreme Court, which affirmed the murder convictions.

McCoy has now asked the Supreme Court when and whether it is unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection. The case was argued on January 17, 2018 (ISCOTUS reported on it here and here). The issues in the case arise from the Sixth Amendment right to counsel. In cases interpreting this right, the Court has held that individual defendants have the right to represent themselves under certain circumstances, the right to make certain other decisions, such as whether to plead guilty and whether to testify on their own behalf, and the right to “effective assistance of counsel.” Some of the key cases in these lines are:

(1) Faretta v. California

On June 30, 1975, the Court announced its opinion in Faretta, answering the question of whether a defendant can be forced to accept representation by counsel, denying him the right to present his own defense. The defendant in this case was charged with grand theft, and his request to represent himself was initially accepted by the judge presiding over his case. However, after questioning Faretta about court procedures, such as the hearsay rule, he changed his mind because he did not find that Faretta intelligently and knowingly waive his right to counsel. The Court found that forcing Faretta to accept representation by a public defender violated his right to self-representation afforded to him under the Sixth Amendment

(2) Strickland v. Washington

Decided on May 14, 1984, Strickland is the seminal case establishing a right to effective assistance of counsel. The Court held that the standard for determining whether a conviction should be reversed or death sentence set aside because a defendant received ineffective assistance of counsel has two prongs: (1) the counsel’s performance must be deficient, and (2) the deficient performance must have prejudiced the defense. The defendant in this case, given the death penalty after pleading guilty to murder, argued that he had ineffective assistance of counsel at the sentencing phase because his attorney did not present character witnesses or order a psychiatric evaluation of Washington. Applying the two-prong standard, the Court held that his Sixth Amendment right to assistance of counsel had not been violated because the prejudice caused by his counsel’s conduct was insufficient to warrant setting aside the death penalty.

(3) United States v. Cronic

Cronic, decided the same day as Strickland, is another ineffective assistance of counsel case. The defendants here were convicted of mail fraud after the government spent almost five years preparing for the trial. After their first lawyer withdrew from the case and 25 days before the trial began, the defendants received a court-appointed lawyer who specialized in real estate law. The Court held that the defendants’ right to effective assistance of counsel under the Sixth Amendment had not been violated, because they could not provide evidence of specific errors that their lawyer had committed during the trial.

(4) Florida v. Nixon

More recently, on December 13, 2004, the Court issued its opinion in Florida v. Nixon, which settled Sixth Amendment issues directly relevant to those in McCoy v. Louisiana. The defendant,  Nixon, was convicted of murder and given the death penalty after his lawyer pursued a trial strategy that involved conceding Nixon’s guilt. Nixon argued that he received ineffective assistance of counsel because he did not approve of this strategy. The Court held that merely not giving express approval of a lawyer’s trial strategy did not rise to the level of ineffective assistance of counsel, and reversed the ruling of the Florida Supreme Court that granted Nixon a new trial.

In discussing these cases, McCoy argues that Nixon does not speak to his situation because he, unlike the defendant in that case, did not remain silent when told of his lawyer’s plans. Instead, he objected expressly and repeatedly. Moreover, McCoy argues that he should not have to show prejudice to prevail on his claim. He argues that his attorney’s concession amounts to structural error that requires automatic reversal and that even if his case is analyzed under ineffective assistance of counsel, prejudice should be presumed.

There were seven amicus briefs filed in support of McCoy, including one filed by the Criminal Bar Association of England and Wales. They argued that at the time the Bill of Rights, including the Sixth Amendment, was adopted, the practices of mid-eighteenth century barristers and solicitors support the notion that a defendant is to be the one who chooses his defense. Counsel would be duty bound to adhere to that defense, and if counsel in those days were to take the actions that English did, the conviction would be automatically reversed. The Ethics Bureau at Yale made a similar argument, asserting that the most crucial precept of a criminal defense is for the lawyer to be faithful to his or her client, and that the defendant is supposed to be the master of his defense. Pursuant to the Sixth Amendment, a defendant has the right to counsel and to refuse counsel, and that forcing a defendant to be represented by unwanted counsel did not comport with that right. Allowing that counsel to profess the defendant’s guilt against the defendant’s wishes also violates a defendant’s Sixth Amendment rights.

On the other side, an amicus brief filed by several states in support of Louisiana argued that when there is overwhelming evidence of a defendant’s guilt in a capital trial, partially admitting guilt can be a reasonable strategic decision that helps the defense counsel to build credibility with the jury. McCoy is arguing for a rule that undermines the framework set up by Faretta and Strickland.

Stay tuned to ISCOTUSnow for updates on this case and all things SCOTUS.

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

Arguments: Week of February 19, 2018

The Court returns to the bench on Tuesday after four weeks without oral arguments, with two Fifth Amendment cases — Currier v. Virginia, which addresses double jeopardy, and City of Hays, Kansas v. Vogt, involving the right against self-incrimination.

In Currier, the Court must decide whether a defendant who consents to have multiple charges severed into sequential trials loses his right to the issue-preclusive effect of an acquittal under the Double Jeopardy Clause of the Fifth Amendment, which protects anyone from being subject “for the same offense to be twice put in jeopardy of life or limb” – so a defendant cannot be found not guilty of a crime and subsequently charged with the same crime for the same offense by the same government. (The federal government can bring charges if a defendant was acquitted of state charges, and vice versa.)

Mr. Currier was charged with burglary (unlawful entry into a structure with the intent to commit a crime inside that structure), grand larceny (the unlawful taking away of someone else’s personal property with the intent to permanently deprive that person of the property in question), and possession of a firearm as a convicted felon, all based on the same course of conduct and events. He agreed to sever the third charge, and was acquitted of the burglary and grand larceny charges after a jury trial. The Commonwealth of Virginia then charged Mr. Currier with possession of a firearm as a convicted felon. He objected, claiming collateral estoppel (issue-preclusion), which is the doctrine that protects a defendant from being tried for the same issue in more than one trial. Despite his objection, he was tried for the crime and found guilty after a jury trial.

Speaking in support of Mr. Currier, the CATO Institute filed an amicus curiae brief arguimg that “in today’s world of ever-expanding criminal codes and regulatory regimes, the government needs fewer, not greater, incentives for piling on theories of criminal liability.” For a summary of the Cato Institute’s brief, click here; to read the brief itself, click here.

On the other side, Indiana and several other states filed an amicus curiae brief arguing that Mr. Currier’s conviction should stand because finding otherwise could undermine efforts to protect defendants from unfair prejudice. Specifically, severing the charges Currier faced meant that in his burglary and larceny trial, the jury did not learn that he was a convicted felon. Under the double jeopardy rule Currier seeks, however, that protection might be unavailable because all the charges would have to be tried at the same time. Thus, if the Court finds in favor of Mr. Currier, it may deter the use of severance to protect a defendant from having the jury learn potentially prejudicial information. To read the states’ brief, click here.

On Tuesday, the Court will also hear City of Hays, Kansas v. Vogt, involving the self-incrimination clause of the Fifth Amendment. This right against self-incrimination allows a defendant to refuse to divulge information that could be used against him in a criminal prosecution. The Court is being asked to decide whether this clause is violated when a defendant’s self-incriminating statements are used not at a criminal trial, but at a probable cause hearing. (A probable cause hearing happens when a defendant is charged, and requires a judge to determine whether, using the probable cause standard, there is a reasonable basis for charging the defendant with the crime.

The defendant, Mr. Vogt, was a police officer in the City of Hays and had applied for a position with the police department in the City of Haysville. During his interview for that position, he admitted that he had kept a knife that he acquired during his time working for the City of Hays. The City of Haysville offered Mr. Vogt a job with them, conditional upon him returning the knife to the City of Hays. The City of Hays police chief then began investigating Mr. Vogt, uncovered additional evidence, and eventually asked the Kansas Bureau of Investigation to begin a criminal investigation into the defendant. Mr. Vogt was eventually charged with two offenses stemming from his possession of the knife. The charges were dismissed after the judge determined that the government lacked probable cause to bring them. Mr. Vogt then brought a federal lawsuit alleging that the use of his compelled statements to begin an investigation that uncovered additional evidence, that then led to a criminal investigation resulting in criminal charges, and that ultimately supported the prosecution during the probable cause hearing, violated his right against self-incrimination under the Fifth Amendment.

The National Association of Criminal Defense Lawyers (NACDL) and American Civil Liberties Union (ACLU) filed an amicus curiae brief in support of Mr. Vogt, which is discussed in this article on the ACLU website (for the brief itself, click here). They argue that the self-incrimination clause applies to all preliminary hearings, provided such hearings are held after the initiation of criminal charges, and that the clause plays a vital role in the fair administration of justice. By using Mr. Vogt’s involuntary statements against him and effectively forcing him to be a “witness against himself,” they argue, the state was attempting to pressure Mr. Vogt into pleading guilty before he got a chance to vindicate his rights. (As Rory Little at SCOTUSblog explains, “a controversial 1967 decision, Garrity v. New Jersey,” held “that incriminating employee statements required by public employers as a condition of employment are “compelled” within the meaning of the Fifth Amendment.”)

On the other side of this issue is an amicus curiae brief filed by the Criminal Justice Legal Foundation (CJLF) arguing that Mr. Vogt’s Fifth Amendment rights were not violated (to read the brief, click here). CILF argues that using a compelled statement to locate physical evidence is not a violation of the Fifth Amendment because someone who merely tells authorities where physical evidence is located is not a “witness.” They further argue that the government needs and has broad power to compel people to tell them what they know about crime. Further commentary on the case can be found in this Hays Daily News article.

On Wednesday the Court will hear arguments in Rosales-Mireles v. United States, which presents the question of whether, for a Court of Appeals to correct a plain forfeited error, the district court ruling must be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of Justice, or seriously call into question the competence or integrity of the district judge.”

Florencio Rosales-Mireles pleaded guilty to illegal re-entry. His probation officer mistakenly counted a 2009 Texas misdemeanor assault conviction twice. That error led to an inaccurate guideline range of 77-96 months, longer than the correct range of 70-87 months. The district court sentenced Rosales-Mireles to 78 months. Rosales-Mireles’ lawyer did not detect the mistake.

The Fifth Circuit Court of Appeals ruled that a district court’s error must have the aforementioned qualities to be reversible under the standard the Supreme Court set forth in the 1993 case United States v. Olano. The Court held in Olano that, under the fourth prong of plain error review, “[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

Evan Lee writes in SCOTUSblog that the government’s brief makes the policy argument that errors should be corrected only in exceptional cases, in order to give defendants sufficient incentive to raise all objections in a timely manner.

Also Wednesday, the Court will hear arguments in Dahda v. United States, which addresses whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

Twin brothers, Los and Roosevelt Dahda, were indicted on charges of conspiracy to acquire and distribute marijuana. Police obtained much of the evidence against the Dahdas, who are twin brothers, through wiretaps of cell phones used by the co-conspirators, including the Dahdas. The wiretaps arose out of nine orders that a federal district court in Kansas issued. Before the trial, the Dahdas moved to suppress the information obtained from the wiretaps on the grounds that the wiretap orders exceeded the district court’s territorial jurisdiction. The trial court rejected that argument, and both were found guilty and sentenced.

The Tenth Circuit upheld the trial court’s decision. Although the court of appeals agreed that the wiretap orders exceeded the district court’s territorial jurisdiction, it held that such defect did not “directly and substantially affect a congressional intention to limit wiretapping.” The court identified two “core concerns” of Title III of the Omnibus Crime Control and Safe Streets Act of 1968—privacy and uniformity—that the Dahdas’ argument did not address. (Justice Gorsuch recused himself from the certiorari decision last year. He sat on the Tenth Circuit panel that heard the case, although he was not part of the rendered decision.)

Richard M. Re, writing for SCOTUSblog, writes that the government will argue, among other things, that the order at issue resulted from a reasonable error of statutory interpretation. This argument, he writes, will pose a conflict between two of the Supreme Court’s recent passions: strict adherence to statutory texts and curbing the exclusionary rule.

This post was written by ISCOTUS Fellows Zoe Arthurson-McColl and Bridget Flynn, Chicago-Kent Classes of 2020 and 2019 respectively, and was edited by Anna Jirschele, ISCOTUS editorial coordinator and Chicago-Kent Class of 2018. ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro oversaw the post.

On This Day in Supreme Court History—February 11, 1943

On this day in 1943, President Franklin D. Roosevelt nominated Wiley B. Rutledge to the Supreme Court.

Rutledge was President Roosevelt’s eighth and final appointee to the Court. At the time of his appointment, he had been serving on the US Court of Appeals for the District of Columbia Circuit since 1939. The Senate confirmed him just four days later.


Rutledge replaced James F. Byrnes, who spent only 16 months on the bench (the second shortest tenure in Court history). Rutledge was a lifelong Democrat and, prior to his appointment to the judiciary, was a vocal supporter of Roosevelt’s New Deal.

During his time on the Supreme Court, Rutledge established himself as one of the most aggressive proponents of judicial protection for individual rights. He joined the liberal wing of the Court in advocating for the application of the Bill of Rights to the states. He wrote a dissent in a case in which the majority concluded that a law that prohibited women from tending a bar did not the Fourteenth Amendment’s equal protection clause. And during his tenure he was one of the Court’s most committed supporters of civil rights for African Americans.

Among Rutledge’s law clerks was future Justice John Paul Stevens, who worked for Rutledge directly after graduating from Northwestern Law School in 1947 and went on to serve on the Court from 1975 to 2010.

Rutledge served on the Court until he died of a stroke in 1949.


This post was drafted by ISCOTUS Fellow Elisabeth Heiber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.


On This Day in Supreme Court History—February 10, 1937

On this day in 1937, Bishop William Manning, head of the Protestant Episcopal Diocese of New York, gave a rather unusual Ash Wednesday sermon. His topic: President Franklin D. Roosevelt’s proposal to expand the Supreme Court. When Roosevelt announced his controversial “court-packing” plan (as its critics dubbed it) several days earlier, he framed it as intended  to make the aging Court operate more efficiently. But everyone knew it was really designed to get enough new appointees on the bench so that the Supreme Court would no longer stand in the way of FDR’s New Deal agenda of economic reform.

“These proposals, if adopted, would be a death blow to our constitutional democracy and would destroy the foundation on which our government rests,” proclaimed Bishop Manning. He talked to his congregation about  the importance of maintaining the independence of the judiciary in a constitutional democracy. The nation faces “a grave crisis” that  “threatens the very structure of our government, the continuance of our democratic institutions and our liberties as a people.” “In my judgment,” the bishop said, “we face one of the most serious situations in our whole history, a situation which involves our religious liberties as well as our civil liberties…. There can be no democracy, no constitutional government, without an independent judiciary.” He urged people to “express themselves in overwhelming numbers” to their elected representatives and demand that the court-packing plan be defeated.

Congress did, in fact, vote down Roosevelt’s proposal, responding to opposition mobilized by Bishop Manning and many others who insisted this kind of political interference with the judiciary violated basic principles of the American constitutional system.


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, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

Justice Ginsburg and the #metoo movement

In a recent interview at the Sundance Film Festival  with NPR Legal Affairs Correspondent Nina Totenberg, viewable in its entirety here, Justice Ginsburg reflected on the#metoo movement. “Well, I think it’s about time,” she said as she received thunderous applause from the crowd. “For so long, women were silent, thinking there was nothing you could do about it. But now the law is on the side of women, or men, who encounter harassment and that’s a good thing,” she went on.

Justice Ginsburg also described her experiences encountering sexism in her career. As an undergraduate student at Cornell in the early 50’s, her chemistry instructor insinuated that she was not capable of taking the final exam and gave her a practice test to study. During the exam the following day, she realized it was the same test her professor had given her the day before and suspected he was trying to solicit a response of gratitude. After the test, she told the audience, she marched into her professor’s office and confronted him by saying, “How dare you!”

Justice Ginsburg also recounted her time as a faculty member of the Rutgers Law School. At one point she was asked to take a significant pay cut. When she questioned the school’s dean about male colleagues receiving a higher salary, he said that male faculty members had to support a family, but that Justice Ginsburg had a husband. She then organized with other female faculty members and fought for higher wages. “That was the very year the Equal Pay Act was passed,” she said.

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

Opinion Update: Environmental Litigation and Statutes of Limitation

In two recent decisions, the Court has delved into procedural issues with significant impact on the course of actual litigation. In  Artis v. District of Columbia, the issue was what happens to the statute of limitations for state law claims when a plaintiff brings both those claims and federal claims in federal court, but the federal claims are dismissed. The case involved a former code inspector (Artis) for the District of Columbia Department of Health. Artis alleged workplace discrimination and sued under Title VII of the Civil Rights Act of 1964, Washington D.C.’s Whistleblower Act, False Claims Act, and common law. The plaintiff’s Title VII claim was eventually dismissed, and the district court decided that there was no basis to exercise supplemental jurisdiction over her other claims. She then refiled her state law claims in a D.C. trial court. The trial court determined that her claims were time barred under the statute of limitations and held that the federal supplemental jurisdiction statute “does not suspend state statute of limitations at the time of the unsuccessful federal filing.”

Robert Yablon of SCOTUSblog provided an analysis of Justice Ginsburg’s majority opinion in this 5-4 decision interpreting 28 U.S.C. §1367(d), the statute that provides for supplemental jurisdiction over state claims in federal court and which includes a “tolling” provision. The Court held that the meaning of “toll” is to suspend the statute of limitations or “hold it in abeyance.” In dissent, on behalf of himself and Justices Alito, Kennedy, and Thomas, Justice Gorsuch argued that “toll” is a broad term that means to suspend a statute of limitations and also to “remove the effect of an expired limitations period.” In this case, Gorsuch stated the tolling provision in the statute means nothing more than to give the plaintiff a 30 day grace period to refile after the federal dismissal. Gorsuch also wrote that the majority’s opinion infringes upon state’s federalism rights to determine how state law claims should be litigated. As Yablon pointed out, this could signal a new federalism battleground for the Court.

Sarah Wieselthier of Lexology explains what this decision means for employees: “[b]y holding that Artis could proceed with her state law claims, the Court effectively extended the statute of limitations applicable to those claims.”

In  National Association of Manufacturers v. Department of Defense,  announced the same day as Artis, the justices decided that challengers of the Environmental Protection Agency’s Waters of the United States (WOTUS) Rule must file their suits in district courts, not appellate courts.  The rule at issue was crafted by the Obama administration and, as the New York Times explained, it “limited the use of pollutants like chemical fertilizers that could run off into small streams.”

The Hill reports that “[w]hile some environmentalists are hopeful the Supreme Court ruling will leave open the door for the Clean Water rule to be put into effect while the court cases are carried out, the Trump administration has now suspended the implementation of the rule. Nonetheless, the National Law Review predicts that “[w]e will certainly be in a mess for some time while his all plays out.”

In its opinion, the Court found unpersuasive the government’s statutory arguments that the rule falls into two of the seven categories for which the Clean Water Act says review lies directly and exclusively in the federal appellate courts. The government also made three policy arguments that the Court likewise rejected. The Court ruled that because Congressional intent was clear, it could accept the bifurcated judicial review scheme in which federal courts of appeal review individual actions issuing or denying permits, and district courts review broader regulations. The Court was also able to accept the lack of efficiency resulting from a lack of immediate court-of-appeals review. And despite the government’s argument that appellate review might result in fewer conflicts in the outcomes of cases, the Court found that, “even if Congress sought to ensure national uniformity, it did not pursue that end at all costs.”

This post was written by Bridget Flynn and Matthew Webber, ISCOTUS Fellows and Chicago-Kent College of Law Class of 2019, and edited by Anna Jirschele, ISCOTUS Editorial Coordinator and Chicago-Kent Class of 2018, and by Carolyn Shapiro, Chicago-Kent Faculty Member and ISCOTUS Co-Director.

Supreme Court News Roundup

In case you missed them the first time around, here is a roundup of some of the most interesting recent stories about the Supreme Court.

Supreme Court Halts Alabama Execution

On January 25, the Supreme Court granted a stay of execution for Vernon Madison, a death row inmate in Alabama.

In 1994, a jury recommended that Mr. Madison receive life imprisonment, but the trial judge overrode that determination and sentenced Mr. Madison to death. The U.S. Court of Appeals for the Eleventh Circuit determined that Mr. Madison—who has dementia, has suffered a series of strokes, and is unable to remember the crime—was incompetent to be executed.

Last fall, the Supreme Court reversed this holding in a per curiam decision. Madison’s attorneys at the Equal Justice Initiative filed his most recent petition for certiorari on January 18, 2018. A week later, over the dissenting votes of Justice Thomas, Alito, and Gorsuch, the Court issued the stay so it could consider the petition.

The Equal Justice Initiative discusses Mr. Madison’s story and the history of his case here.

Justice Gorsuch in Artis

In his blog LAWnLinguistics, Neil Gofarb discusses Justice Gorsuch’s dissent in Artis v. District of Columbia, a case decided on January 22 concerning the tolling provision of the federal supplemental jurisdiction statute. Gofarb criticizes the dictionaries Gorsuch chose to demonstrate the ambiguity of the word “toll.”

Justice Ginsburg Speech

Instead of attending the State of the Union address, Justice Ginsburg spoke at Roger Williams University School of Law on Tuesday, January 30. The Associated Press covered the event, at which Ginsburg described her concern over rising levels partisanship in Washington, and her fear that the federal judiciary will be perceived as being partisan. Ginsburg likened partisanship to the threat that McCarthyism and Red Scare posed to America in the 1950s. She remains hopeful, however. “That time has passed. This time will too. We have something so wonderful in this nation,” she told her audience. “That democracy exists. It would be tragic to lose it. And I think good people, no matter whether Democrat or Republican, appreciate that.”

Ideologies on the Court

At Empircal SCOTUS, Adam Feldmen analyzes disagreement on the Court by calculating the “the most antagonistic pairs of justices based on majority and dissent authorship.” Feldman notes that the ideology of individual justices is likely not the main factor underpinning most disagreement on the Court. Justice Kennedy, who occupies the ideological middle ground, is the majority author in five of the top ten most antagonistic pairs of justices.


This post was drafted by ISCOTUS Fellow Elisabeth Heiber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

Latest Fourth Amendment Opinion: District of Columbia v. Wesby

On January 22, the Court handed down its decision for District of Columbia v. Wesby, a Fourth Amendment case out of the U.S. Court of Appeals for the D.C. Circuit, ruling that the police acted reasonably in their response to a loud party at a vacant house. Justice Thomas wrote an opinion for himself and six other justices, in which, as Adam Liptak put it in the New York Times, Adam Liptak, he provided an “unusually vivid and extended description” of the facts of the case.

In March 2008, police officers responded to a complaint of loud music and illegal activities at a vacant house in Northeast D. C. Upon their arrival, neighbors confirmed that the house should have been empty. The police officers entered the house and were confronted with a raucous party. Officers smelled marijuana, found partygoers drinking alcohol, and discovered a “makeshift strip club” in the living room. They interviewed all 21 partygoers and received inconsistent stories, but several partygoers informed them that a woman named “Peaches” was the tenant who gave them permission to be in the house. Peaches was not at the property, and when police called her, she first informed them that she was renting the house and that she gave permission for the party, but ultimately conceded that she did not have permission to use the house. When the police called the property owner, he said he did not give permission for the party, and the officers subsequently arrested all 21 partygoers and charged them with unlawful entry, and later, with disorderly conduct.

The charges were eventually dropped, but 16 of the arrestees sued the officers and the District of Columbia for false arrest under the Fourth Amendment and District law, arguing that officers did not have probable cause to arrest them for unlawful entry. The district court agreed, noting that, under District law, “probable cause to arrest for unlawful entry requires evidence that the alleged intruder knew or should have known, upon entry, that such entry was against the will of the owner.” As the officers lacked probable cause, the district court also found that the officers were not entitled to qualified immunity, because it was unreasonable for the officers to believe that there were not violating the partygoers’ Fourth Amendment rights against false arrest when arresting them without probable cause. The D.C. Circuit affirmed both of these holdings.

In a 9-0 decision, the Court reversed the findings of the circuit court and held that the officers did have probable cause to arrest the partygoers, and that the officers were entitled to qualified immunity. Justice Thomas, in an opinion joined by six other justices, held that the D.C. Circuit improperly considered each fact leading up to the partygoers’ arrests “in isolation, rather than as a factor in the totality of the circumstances.” Thomas discussed the dirty and near vacant conditions of the house, the fact that the partygoers fled the police when they entered, their inconsistent explanations for the party (including claiming it was a bachelor party without being able to identify the bachelor), and the fact that only two of the partygoers named Peaches as the tenant who allegedly gave them permission to enter the home as factors that gave rise to the inference that the partygoers knew they did not have permission to be in the home. “Viewing these circumstance as a whole,” Thomas writes, “a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house.”

Finally, the Court held that the officers were entitled to qualified immunity, as:

“. . .a reasonable officer looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value.”

Justice Sotomayor joined in the judgment but filed a concurring opinion, in which she concluded that, because the majority concluded that the officers were entitled to qualified immunity, it was not necessary to assess the question of probable cause. Justice Ginsburg, while joining the majority in the judgment, expressed her concern in a separate concurring opinion that “the Court’s jurisprudence. . . sets the balance too heavily in favor of police unaccountability to the detriment of the Fourth Amendment protection.” Further, she would “leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.” In other words, although she suggested that the Court should revisit its decision in Whren v. United States, a 1996 case that allows police to stop any car they have witnessed commit a traffic violation even if their motivation for the stop is unrelated to that violation.

Ann E. Marimow, in a piece for the Washington Post, uncovers the identity of the tenant referred to as “Peaches” in the opinion and in court documents. Peaches, whose real name was Veronica Little, was resistant to being involved in the case at any point in the proceedings. She was a bartender and entrepreneur who passed away in 2017.

This post was written by Elisabeth Heiber, ISCOTUS Fellow and Chicago-Kent College of Law Class of 2019, and edited by Anna Jirschele, ISCOTUS Editorial Coordinator and Chicago-Kent Class of 2018, and by Carolyn Shapiro, Chicago-Kent Faculty Member and ISCOTUS Co-Director.

On This Day in Supreme Court History—February 5, 1813

On this day in 1813, the Supreme Court decided Mima Queen v. Hepburn, an appeal of a suit of an enslaved woman who claimed her freedom. The Court rejected her appeal, holding that the hearsay evidence Mima Queen relied on to establish that her great grandmother was a free woman of color who was wrongly enslaved—and therefore that Mima Queen and her daughter should be free—was insufficient.

At trial in Mima Queen’s freedom suit, a witness stated in a deposition that he heard that Mima Queen’s great grandmother, Mary Queen, was from another country and that when she arrived in America “she had a great many fine clothes, and that old William Chapman took her on shore once, and that nobody would buy her for some time, until at last James Caroll bought her.”

The trial court instructed the jury to disregard this deposition if it determined “that the existence of the report was not stated by the deponent of his own knowledge, but from what had been communicated to him respecting the existence of such a report many years after her importation, without its appearing by whom or in what manner the same was communicated to him.” The jury found the evidence insufficient to give Mima Queen her freedom. Her lawyer, Francis Scott Key (most famous as the author of the “Star-Spangled Banner”), appealed to the U.S. Supreme Court.

The Supreme Chief affirmed the lower court’s decision. Chief Justice John Marshall wrote the opinion of the Court.

Although courts had recognized exceptions to the hearsay rule for some “cases of pedigree, of prescription, of custom, and in some cases of boundary,” the Chief Justice declined to make an exception here. He found unpersuasive the argument that knowledgeable sources might be dead and therefore unable to testify:

If the circumstance that the eye witnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained.

The sole dissenter in the case was Justice Gabriel Duvall. Although Duvall wrote very few opinions throughout his tenure on the Court, he felt moved to write a dissent here. The Court should make an exception to the hearsay rule in cases in which freedom is on the line, he insisted. If the courts allowed for hearsay evidence “in cases of pedigree or in controversies relative to the boundaries of land,” then why not when one’s freedom was on the line?

It will be universally admitted that the right to freedom is more important than the right of property.

And people of color from their helpless condition under the uncontrolled authority of a master, are entitled to all reasonable protection. A decision that hearsay evidence in such cases shall not be admitted, cuts up by the roots all claims of the kind, and puts a final end to them, unless the claim should arise from a fact of recent date, and such a case will seldom, perhaps never, occur.

Over Duvall’s dissent, the Chief Justice and the rest of the Court sided with property rights over human freedom. What happened to Mima Queen and her daughter after their loss at the Supreme Court is unknown.


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

Free Speech, Universities, and Campus Disruption

A guest post by Professor Sheldon Nahmod, University Distinguished Professor, IIT Chicago-Kent College of Law.

Two propositions

I begin with two fundamental propositions. First, political protests and a free press are the lifeblood of American democracy. Second, the primary purposes of universities are to develop critical intellectual faculties and to advance knowledge: there should be no intellectual “safe spaces” at a university. These two propositions are tied to the self-government and marketplace of ideas functions of the First Amendment.

First Amendment basics

Here are some First Amendment basics. For one thing, when government regulates, it must ordinarily be neutral with respect to the content and, especially, the viewpoint of speech. For another, the First Amendment is not an absolute. Indeed, there are no absolute individual constitutional rights. Further, there are often costs imposed on innocent people, including taxpayers, by the First Amendment. In addition, the First Amendment technically applies only to government regulation; it protects private individuals from the state.

Finally, First Amendment principles, as articulated by the Supreme Court, do not exclusively reflect the exercise of political power, as some assert. These principles have worked well as a general matter to protect diverse viewpoints, and have taken account of political (and economic) inequality to protect the “little guy” and traditional media of communication such as leafleting, demonstrations and the like.

Protests on campus: an all-too-familiar fact pattern

Suppose a controversial and deliberately provocative speaker is invited by students to speak at a facility used for university-wide events. Unless the facility is ordinarily open to non-university events, the invited speaker has no First Amendment right of access to the facility. However, the students who invited him or her have a First Amendment right receive information and hear the speaker’s ideas. (Supreme Court decisions such as Lamont v. Postmaster General (1965), Red Lion (1969), and Virginia State Bd. of Pharmacy (1976) all speak of such a right in readers, listeners and viewers in certain circumstances.)

What are the constraints on the speaker? He or she may not engage in speech directed at inciting unlawful conduct, where the speech is likely to lead to such conduct. Such speech is unprotected by the First Amendment, as are true threats and “fighting words,” although the last has been limited to face-to-face confrontations.

Significantly, the university has an affirmative First Amendment duty to use reasonable means to physically protect the speaker from a hostile audience (Justice Hugo Black’s famous dissent in Feiner v. New York (1951)). That is, the university must try to control the audience before shutting down the speaker for his or her protection.

However, those protesting the speaker have First Amendment rights of their own: what are their limits? The protesters can make their views known but they cannot physically disrupt the speaker. So they may stand silently during the talk, or with their backs to the speaker, and they may even hold placards in opposition. But preventing the speaker  from speaking through continued heckling, or by throwing things or through other violent conduct, is not protected by the First Amendment and can be punished either by discipline or criminal sanctions if they are students, or by criminal sanctions if they are outsiders who are not students. Such conduct is neither protected by the First Amendment nor consistent with the primary purposes of universities.

University officials’ responses to disruption

Of course, it does not follow that universities in this situation will discipline their students or that law enforcement will proceed with criminal prosecutions. University officials often want to avoid or at least minimize controversy. They also have various constituencies: students, alumni, faculty, public opinion and, if public universities, legislatures. And in fairness, it is often difficult in the heat of things to know who the disruptors are and whether they are students or outsiders.

Still, when thinking about university administrators confronting these events, I am reminded of something that Justice Felix Frankfurter wrote long ago about legislators: “One must not expect uncommon courage in legislators.” With respect, it is fair to say the same thing about most university administrators who deal with these situations.

Still, university officials should keep this language from the Supreme Court’s 1957 Sweezy decision in mind:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.


This post is based on Professor Nahmod’s presentation at a symposium on Free Speech and Campus Disruption held January 25, 2018, at Northwestern Law School. The symposium was co-sponsored by the Academic Engagement Network. It was first posted on Nahmod Law.