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.

November 13 Orders: Redistricting and Unsolicited Faxes

On November 13, 2018, the Court issued orders from its November 9th conference.  The justices added two new cases to their docket. Among the cases the Court announced it will hear is Virginia House of Delegates v. Bethune-Hill, a challenge to the use of race in legislative redistricting. Based on the 2010 Census, the Virginia General Assembly redrew districts for the Virginia House of Delegates. However, the new legislative map contained twelve majority-minority districts. The plaintiffs argued the districts constituted racial gerrymandering, which violates the Equal Protection Clause of the 14th Amendment. Bethune-Hill is coming to the Court for the second time. When the Court heard the case in 2017, it ruled that the district court had applied the wrong legal standard when it upheld the twelve challenged districts. After applying the standard outlined by the Court, the district court determined that race was the predominant factor used to create eleven of the twelve districts and ordered a special redistricting process.

The Republican-controlled House of Delegates and its Speaker, a Republican legislator, filed an appeal to stop the redistricting.  The state’s Democratic attorney general, Mark Herring, however, stated “Virginia law is clear that in the commonwealth, like in most states, the ultimate authority to speak for the state in federal court rests with its elected attorney general.” Mr. Herring believes the state would be better served to not pursue the lawsuit.  As part of its order last week, the Court ordered both parties in to fully brief whether the appellants, Republican legislators, have the right to appeal. The case could decide the partisan control of the Virginia House of Delegates as Republicans currently hold a 51-49 advantage.

The Court also decided to consider PDR Network v. Carlton & Harris. In 2013, PDR sent Carlton & Harris, a West Virginia chiropractor practice, a fax offering a free reference book. Carlton & Harris declined the offer and sued PDR, alleging a violation of the Telephone Consumer Protection Act, which prohibits unsolicited advertisements. PDR contends a fax is not an advertisement, but Carlton & Harris point to a supporting FCC interpretation. The district court agreed with PDR, but the U.S. Court of Appeals for the 4th Circuit reversed that decision. The Court granted writ of certiorari, but only to the question of whether the Hobbs Act required the district court to accept the FCC’s legal interpretation.  

Additionally, the Court denied writs of certiorari review to a group of cases challenging the Court’s decision in Hurst. Hurst held that pursuant to the 6th Amendment, a jury must find every element required to impose a death sentence. Since the decision, the Florida Supreme Court has rejected appeals from death sentences if the jury was unanimous in their decision to recommend the sentence. Several inmates urged the Court to overturn the Florida Supreme Court decision and cited Caldwell v. Mississippi. In Caldwell, the Court held a death sentence is not valid when the jury believes it is not responsible for determining whether a death sentence is appropriate.

The Court denied a review of the cases, but there was dissent among the justices. Justice Breyer wrote respecting the denials, highlighting three issues: (1) the cruelty of delay defendants face when waiting for execution, (2) whether the decision in Hurst should be applied retroactively, and (3) whether the 8th Amendment requires a jury, rather than a judge, to make the decision to sentence a defendant to death. Justice Thomas agreed with the decision to deny review, rebutted Justice Breyer’s arguments, and stated “The only thing ‘cruel and unusual’ in this case was the petitioner’s brutal murder of three innocent victims.” Justice Sotomayor dissented from the denial of review, providing “The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.”

The remainder of the Court’s November 13, 2018, orders can be found here.

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.

On This Day in Supreme Court History—November 15, 1882

On this day in 1882, Supreme Court Justice Felix Frankfurter was born in Vienna, Austria. At the age of twelve, he moved to New York’s lower east side with his parents and five siblings. Despite not learning English until he came to the United States, he soon became an exceptional student. He graduated first in his class from Harvard Law School and then joined its faculty. He went on to become a renowned scholar, a major public intellectual, and a trusted advisor to President Franklin D. Roosevelt. Roosevelt nominated him to the Supreme Court in 1939, and the Senate confirmed him without a single dissenting vote.

Newsweek Jan 16 1939 Felix Frankfurter.jpg

Never one to doubt his own abilities, Frankfurter believed that the fact that he had never served as a judge in no way hindered  him as a justice. “The correlation between prior judicial experience and fitness for the Supreme Court,” he once said, “is zero.”

This post 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.

Procedural Requirements with Big Impacts: November 7 Oral Arguments

The Supreme Court heard arguments in Republic of Sudan v. Harrison on November 7, 2018, where it is being asked to resolve a circuit split on whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act (FSIA) can serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail to the foreign state’s embassy in the United States, notwithstanding differing provisions under the Vienna Convention on Diplomatic Relations (VCDR). The U.S. Courts of Appeals for the District of Columbia, Fifth Circuit, and Seventh Circuit have all held “no,” while the Second Circuit in the present case has held that plaintiffs may be allowed to serve a foreign state in this way.

           The case arises out of the October 2000 bombing of the USS Cole that killed 17 sailors, injuring dozens more, for which a group of victims and their families sued Sudan, alleging that it had provided support to al-Qaida, who claimed responsibility for the attack. Read CNN’s fast facts article for background on the attack. The argument for petitioner – Republic of Sudan – is that the proper interpretation of §1608(a)(3), as held by the District of Columbia, Fifth, and Seventh Circuits, is that someone suing a foreign state needs to send process directly to the head of the ministry. In support of that position, counsel for petitioner argued that there is no language in §1608(a)(3) that explicitly provides for service through an intermediary, and the specific statutory provision should be applied literally and strictly.  The respondent – Rick Harrison – countered that the Second Circuit properly held that he could send process through an intermediary, in this case the Sudanese Embassy. They further alleged that Sudan was using an unstated procedural requirement to avoid paying the $300 million judgment to Harrison and the other victims of the attack on USS Cole. The Associated Press and LMT Online have more on the arguments.

           The Court also heard arguments in another circuit-split case involving a question of statutory interpretation, Culbertson v. Berryhill, which centers around 42 U.S.C. § 406(b)’s 25-percent cap on fees relating to the representation of individuals claiming Social Security benefits. The cap provides that an attorney can take a contingent fee of no more than 25 percent of the claimant’s past-due benefits. The Sixth, Ninth, and Tenth Circuits have held that the 25-percent cap applies only to fees relating to representation in court, whereas the Fourth, Fifth, and Eleventh Circuits have held that the 25-percent cap applies to the maximum aggregate amount of proceedings, whether there are solely court proceedings or both administrative and court proceedings. The petitioner, Culbertson, argued that the phrase at issue – “such representation” – should be read to mean that § 406(b)’s cap applies only to representation fees for work done before a court. Respondent Barryhill, acting commissioner of Social Security, argued that limiting the cap on fees to past-due benefits as they apply to court proceedings would open the door to attorneys being able to collect the 25-percent representation fee from proceedings in multiple jurisdictions. UVA Today has more on Culbertson, and The Jurist covers both of the cases argued on Wednesday November 7, 2018.

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, 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.

 

Cruel and Unusual Punishment in a Capital Case: November 6 Oral Arguments

On Tuesday, November 6, the Supreme Court heard oral arguments in a case challenging the method of execution in a capital case. In Bucklew v. Precythe, the Court must consider a claim that a state’s chosen method of execution will cause excruciating pain due to an inmate’s particular medical conditions can violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

In 1996, Russell Bucklew killed the owner of a home his former girlfriend was living in, kidnapped and raped his former girlfriend, and was apprehended after a shootout with Missouri police.  In 1998, Bucklew was convicted of murder, kidnapping, and rape and was sentenced to death. Bucklew alleges that execution by lethal injection, Missouri’s chosen method, would constitute cruel and unusual punishment because he suffers from cavernous hemangioma, a rare congenital condition which causes clumps of blood vessels to grow in his head, neck, and face. Bucklew claims that because of his condition, a lethal injection would cause excruciating pain.  

A federal district court dismissed Bucklew’s claim because he failed to identify a feasible alternative execution method, as required by the United States Supreme Court in Glossip v. Gross and Baze v. Rees.  The Supreme Court granted a stay of Buckley’s execution in March, hours before he was to be executed, with Justice Kennedy providing the fifth vote for the stay.  Bucklew later proposed execution by lethal gas to the district court, but the court held Bucklew failed to provide adequate evidence that this methodology would significantly reduce a substantial risk of severe pain. The issue before the Supreme Court is whether the inmate challenging a method of execution, even where — as here — the challenge is unique to his medical condition — must show that there is a proposed alternative method of execution that would provide a substantially greater chance of reducing unnecessary pain.

During oral argument, Justice Kavanaugh expressed concern stating “even if the method imposes gruesome brutal pain you can still go forward?”  As The Washington Post reports, Kavanaugh directed all of his questions to the Missouri Solicitor General, John Sauer. Sauer argued execution methodology can impose extreme pain, but cannot be a historically gruesome method prohibited by the Eighth Amendment nor a deliberate attempt to inflict pain for the sake of pain. Justice Kagan suggested prior Supreme Court decisions defending lethal injection were not applicable; “I think all of that stuff that we talked about in Baze about why we should refer to state-considered judgments really falls away because there’s been no considered judgment, surely by the legislature and, in general, by officials, about one particular person.”  Most of the Court’s more conservative justices, other than Justice Kavanaugh, seemed to side with the Missouri Department of Corrections. Chief Justice Roberts, for example, posited: “If the death penalty is constitutional, as it now is, there must be a way to administer it. But, if you can show that there’s another way that is less painful, then the theory is again that it’s an Eighth Amendment claim because it’s unnecessary pain.  But again, it seems to me that you can’t make that showing with respect to something that’s never been used by any other state.” More information is available in this AP story.

           In another case  BNSF Railway Company v. Loos, Michael Loos, a former employee of BNSF Railway Company, incurred attendance policy violations, some of which were attributed to a workplace injury.  BNSF terminated Loos’ employment due to the attendance policy violations and Loos brought suit alleging retaliation under the Federal Railroad Safety Act (FRSA) and negligence under the Federal Employers Liability Act (FELA). A jury awarded $30,000 for lost wages for the FELA claim and the district court ruled none of the award was subject to Railroad Retirement Tax Act (RRTA) taxation. The RRTA withholds income from railroad employees to pay for retirement benefits under the Railroad Retirement Act (RRA). Loos’ jury award is creditable towards retirement benefits. BNSF appealed and believes the award should be taxable under the RRTA, meaning BNSF would withhold taxes from the award on behalf of Loos and put the amount towards RRTA retirement benefits.  The district court denied BNSF’s motion and the United States Court of Appeals for the Eighth Circuit affirmed the decision. The case is unusual because BNSF is asking the court to impose more federal taxes on the company, although the amount is only $3,765.  The Court will determine whether damages for lost wages in a personal injury suit brought under FELA are taxable as “compensation” under the RRTA.  

Justice Ginsburg asked BNSF for clarity regarding its stake in the appeal, to which the company responded “the employer cares because under a system that would credit all lost wage FELA awards to retirement benefits but without any tax burden has a long-term risk of insolvency or instability to the system.”  Justice Sotomayor expressed concern over the practical application of taxing lost-wage awards, questioning how it would be determined what part of the awards would be subject to the RRTA provisions. According to SCOTUSblog, at least four justices (Ginsburg, Sotomayor, Kagan, and Gorsuch) asked questions sympathetic to Loos’ case, while justices Breyer and Kavanagh asked questions sympathetic to BNSF.

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.

 

Hovercrafts & Uranium: Oral Argument Roundup for November 5, 2018

On Monday, November 5, 2018, the Supreme Court heard oral arguments in two cases: Sturgeon v. Frost and Virginia Uranium, Inc. v. Warren.

Sturgeon v. Frost

In Sturgeon, the Court faced the question of whether the National Park Service (NPS) can prohibit the use of hovercrafts on public waterways. John Sturgeon, an Alaskan moose hunter, has been fighting the NPS for years, filing lawsuits and appeals seeking to gain permission to operate his hovercraft over the Nation River in the Yukon-Charley National Preserve conservation unit. Alaska says he can; the NPS says he can’t. The case hinges on the Alaska National Interest Lands Conservation Act, which says Alaskan Native and private land are not subject to federal “regulations applicable solely to public lands.” Specifically, the question is the meaning in this provision of “public lands.”

At oral argument, Sturgeon’s lawyer, Matthew T. Findley, argued that the law exempted a waterway such as the Nation River from the regulatory control of the NPS. Justice Alito said he “burned up an awful lot of gray cells trying to put together the pieces of this statute.” Justice Sotomayor wondered how the Court could interpret the meaning of “public lands” differently in multiple sections of the statute. “I’m struggling with this,” confessed Justice Kagan.

SCOTUSblog has a full summary of oral arguments here.

This “little case” may have big consequences, noted Matthew J. Sanders in the ABA newsletter Trends last year. Sturgeon may come to define the nature and reach of the federal government’s authority over waters in and beyond Alaska.”

Virginia Uranium, Inc. v. Warren

The Court also heard oral arguments in Virginia Uranium, Inc., involving a jurisdictional question regarding the safe handling of radioactive material. Specifically, the issue is whether the federal Atomic Energy Act (AEA) preempts a Virginia state law regulating radioactive material within its jurisdiction.

In the early 1980s, in response to the nuclear disaster in 1979 at  Three Mile Island, Virginia passed a law banning the mining of uranium within the state. The law had a sunset clause that went into effect a year after its enactment. In 1983, the Virginia legislature renewed the law indefinitely. Virginia Uranium, Inc. saw the potential in one of the largest untapped uranium deposits in the country (roughly $7 billion as of 2011), and wants to mine the prospect but is prevented from doing so by this state law.

The case hinges on Virginia’s reasoning behind its prohibition of mining uranium. Laws involving improper extraction and storage of materials are regulated by federal law, namely the AEA, which designates the Nuclear Regulatory Commission (NRC) as responsible for this issue.

As Justice Kagan noted at oral argument, because the legislative history shows that the Virginia law was in response to safety concerns, it is more vulnerable to preemption than state bans on mining motivated for other reasons.

“Suppose Virginia had said, ‘We think that the extraction is a dangerous activity, so we are justifying this ban on mining to protect the workers from the hazards associated with mining,’” Justice Ginsburg asked the attorney arguing the case for Virginia Uranium, Charles J. Cooper. Cooper responded that the company would lose if that were the case.  

Solicitor General Noel J. Francisco warned that if the Court allowed a ban on mining for reasons besides concerns for extraction and storage, the Court would be “giving state and local governments a road map for undermining a multibillion-dollar industry.”

SCOTUSblog has a full summary of oral arguments here.

 

This Post was Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, 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.

 

Conference Report: November 2 Conference

At its November 2 Conference, the Supreme Court granted certiorari in six cases. Two of the cases, which have been consolidated, involve challenges to a cross on public land. Those cases were brought by the American Humanist Association against the American Legion and the Maryland-National Capital Park and Planning Commission. In a 2-1 decision, he Fourth Circuit held that the large cross, a 93-year-old World War I memorial, excessively entangled the government with religion and so violated the Establishment Clause. More information about the case is available in this Washington Post article.

The Court also granted certiorari in Flowers v. Mississippi. In Flowers, the defendant stood trial six times on the same charges due to three judgments being reversed because of prosecutorial misconduct and the two other trials ending in hung juries. In three of the earlier trials, the prosecutor used peremptory challenges to strike African-Americans. In one of those cases, the trial judge disallowed one of those challenges as racially motivated, and in another, the Mississippi Supreme Court reversed the conviction as violating Baston v. Kentucky, which held that excluding jurors due to their race is unconstitutional. In the last trial, Flowers was convicted and sentenced to death by a jury made up of eleven whites and one African-American. Flowers alleged that the prosecutor again violated Batson, but the Mississippi Supreme Court held otherwise in a 6-3 decision. After the Supreme Court decided Foster v. Chatman, a 2016 case involving race-based jury exclusions, it remanded Flowers to the Mississippi Supreme Court to reconsider its decision in light of Foster. That court issued a substantially similar majority opinion, and Flowers has again asked the Supreme Court to review, in part due to the Mississippi court’s failure to consider the prosecutor’s past history of adjudicated purposeful race discrimination in striking minority prospective jurors.

The other cases granted certiorari on November 2 can be viewed here, and SCOTUSblog discusses them here.

Among the cases in which the Supreme Court denied certiorari was Smith v. Clinton, which gained much media attention, including this Politico article from May of 2017. Patricia Smith and Charles Woods brought this action together against former Secretary of State Hillary Clinton. They claimed that due to Clinton’s use of the private email server, which was later hacked, their sons Sean Smith and Tyrone Woods died because it revealed their location to terrorists who took their lives in Benghazi in September 2012. The plaintiffs also had defamation claims. The district court dismissed the case, and the D.C. Circuit affirmed. The Supreme Court will not hear the case, so the lower court ruling stands.

Other cases that were denied certiorari were a group of linked cases against the Federal Communications Commission (FCC) challenging the Obama-era net neutrality rules. Although the FCC has since changed the rules, it agreed with the plaintiff communications company that the D.C. Circuit’s decision upholding the rules should be vacated as moot. The Court disagreed, simply denying the petition. Justice Thomas, Alito, and Gorsuch, would have granted the request for vacatur. Chief Justice Roberts and Justice Kavanaugh were both recused. More information can be found in this NPR story. The other cases denied certiorari on November 5 can be viewed here.

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.

October 31 Oral Argument Report

On October 31, the Court heard arguments in Frank v. Gaos. The case presents the issue of whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and complies with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.” The doctrine of cy pres (from a French phrase for “as close as possible”) allows courts to interpret wills or charitable gifts to fulfill the giver’s intention as closely as possible when they are unable to implement the terms precisely. Ted Frank, an attorney, is challenging an $8.5 million settlement of a class action against Google, which alleged that Google had violated its users’ privacy. About $5 million of the settlement went to groups that work on privacy-related issues and the plaintiffs’ lawyers’ alma maters.

Frank argued that because the class members were not the primary beneficiaries of the settlement, the settlement was neither fair nor reasonable and therefore violated Rule 23. The settlement was particularly abusive, he argued, because it was feasible to distribute the money to class members, but instead the class’s counsel agreed to direct the money from the settlement elsewhere. Class members are capable of donating their money to charity themselves if they so wish, instead of having their lawyers do so, he noted. Jeffrey Wall argued for the United States, a non-party, and stated the plaintiffs lacked standing when the district court entered the judgment and that lower federal courts should enforce limits on fee proportionality so those limits are not reduced to “paper tigers.” Attorney Andrew Pincus argued on behalf of Google that nothing in Rule 23 or the Rules Enabling Act strictly prohibits settlements in which the money goes only to third parties. Pincus agreed with the government that there is a “serious question about whether this action was ever properly in federal court.”  Jeffrey Lamken argued on behalf of the respondents (the plaintiffs against Google) that Rule 23(e)’s fairness standard is better met when courts give large amounts of the settlement money to institutions for particular uses than when courts give small amounts close to zero to individual class members. Lamken argued that it is “critical” that the class members’ lawyers, not Google’s lawyers, determined the recipients.

For more commentary on this case, check out The New York Times and MarketWatch.   

On the same day, the Court heard arguments in Jam v. International Finance Corporation. The case presents the question of whether the International Organizations Immunities Act (IOIA), which gives international organizations the “same immunity” from lawsuits that foreign governments have, confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act (FSIA).

International Finance Corporation loans money to private businesses for projects in developing countries. In 2008, the IFC loaned $450 million to Coastal Gujarat Power Limited to partially fund the construction of a power plant in India. The plaintiffs/petitioners are mostly farmers and fishermen whom the plant has harmed.

Jeffrey Fisher argued on behalf of the petitioners that the IOIA’s plain text, structure and drafting history clearly give international organizations the same immunity as the FSIA. Fisher argued that the IOIA incorporates the immunity of the FSIA as of the moment of the filing of the lawsuit against the IFC, not the level of immunity that was applicable when Congress enacted the statute in 1945.  Assistant to the Solicitor General Jonathan Ellis argued on behalf of the United States, a nonparty. Ellis argued that the IOIA “provides a whole host of immunities” by setting “a fixed rule of immunity” and by setting the immunity by reference to foreign governments.” Donald Verrilli argued on behalf of the IFC that Congress enacted IOIA to fulfill the obligations imposed by treaties which commit the courts to give “virtually absolute immunity” to international organizations, a step beyond the immunity given to foreign states.

 

[Disclosure: Chicago-Kent College of Law’s Center for Information, Society and Policy is one of the designated cy pres recipients at issue in Frank v. Gaos, as reported here.)

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.

 

Oral Argument October 30: Ineffective Assistance of Counsel

On October 30, the Supreme Court heard oral arguments in Garza v. Idaho, a case involving a criminal defendant’s claim of ineffective assistance of counsel. Garza argues that his lawyer was ineffective because he failed to file an appeal when Garza had requested that he do so. Garza’s lawyer counters that he did not file the appeal because Garza had take a plea agreement that waived his right to appeal.

At oral argument, Justice Kavanaugh probed the lawyer now representing Garza about the significance of the waiver. “An appeal waiver never precludes any and all possible appeals?” he asked. “That is what is undisputed on this record,” responded the attorney. Garza’s criminal defense lawyer, he argued, “usurp[ed] his client’s decision to appeal.” The courts should  “not to allow an attorney to override his client’s autonomous decision to appeal.”

The waiver is relevant, the attorney representing Idaho allowed. But in post-conviction cases where the conduct of counsel is at issue, the Court should look at the totality of the circumstances, he insisted. “And in this case, the totality includes the waiver. The totality includes the specific instruction of the client. The totality includes the scope of the waiver and counsel’s determination that his client was specifically asking him to seek an appeal that would address an issue within the scope.”

Justice Sotomayor asked whether Idaho’s position ran afoul of Roe v. Flores-Ortega, in which the Court held that when a lawyer failed to file an appeal as directed by the client, it is presumed that that failure prejudiced the outcome of the proceeding against the defendant—a requirement for an ineffective assistance of counsel suit. According to Flores-Ortega, Justice Sotomayor argued, “If the defendant doesn’t ask you for [an appeal], you don’t have to consult. But, once he asks you for one, you have to file a notice of appeal.”

Although noting that some of the justices, including the newest justice, Brett Kavanaugh, expressed  skepticism toward Garza’s claim, SCOTUSBlog predicted, based on oral argument, that Garza would likely prevail in the end.

More on Garza can be found at Courthouse News, the CATO Institute, and the Legal Information Institute. A  transcript of the arguments can be found here.

On the same day, the Court also heard arguments in Washington Department of Licensing v. Cougar Den, Inc., a case involving the Yakama Nation Treaty of 1855 and taxes. Check out Jurist for more information on this case.   

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, 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 .

News Roundup: Week of October 29, 2018

In addition to the Supreme Court’s latest session of oral arguments and its announcement that it had granted certiorari in some new cases (see here), there was other news as well last week.

Term Limits for the Court

The Hill’s Lydia Wheeler wrote in an article this week about a new poll conducted by Fix the Court (FTC), an organization devoted to promoting policies for reforming the Supreme Court, which found that 78% of Americans support term limits for all Supreme Court Justices.

At a Georgetown Law Center event last week, Justice Kagan made a comment about the slew of proposals: “I think what those proposals are trying to do is take some of the high stakes out of the confirmation process and certainly to the extent that that worked and people could feel as though no single confirmation was going to be a life or death issue that that would be a good thing[.]”

Justice Sandra Day O’Connor

The first female Associate Justice of the Supreme Court, Sandra Day O’Connor, announced last week that she would be retiring from public life, reports NPR’s Nina Totenberg, due to a diagnosis of dementia, possibly related to Alzheimer’s disease. After retiring from the Supreme Court in 2006, Justice O’Connor, like many of her colleagues, remained active in retirement. O’Connor promoted civic engagement and civic education by founding the organization, iCivics. You can read more about Justice O’Connor’s announcements and reactions to it here.

You can also read a letter written by a mentee of Justice O’Connor, Kim Azzarelli, who is co-founder of Seneca Women and a member of the advisory board of the Women in Alzheimer’s Research Fund at University of California, San Francisco. She reports that Justice O’Connor advised her “on everything from how to fix Washington (less politics, more human relationships) to what to wear when I traveled (black pants, always). But two lessons I learned from her stand out above all. One was that a woman’s lens is critical to all areas of public life. The second was the importance of using one’s power for purpose.”

O’Connor’s public announcement of retirement was not the only news to captivate Supreme Court enthusiasts. Recent reporting discovered that a young William Rehnquist proposed marriage to a young woman named Sandra Day. While the two were attending law school at Stanford, they dated and developed a close friendship, which led Rehnquist to propose via letter after he left a semester early to clerk on the Supreme Court.

Spoiler alert: she turned him down. However, the two remained close friends throughout the years—leading Rehnquist to advocate for O’Connor’s appointment to the Supreme Court by President Ronald Reagan. It’s not too often the general public gets an in in-depth scoop into the personal lives of the Justices.

In Case You Missed It…

Great analysis piece by Co-Director of ISCOTUS Professor Schmidt on the aftermath of the Kavanaugh hearings and the political nature of the Supreme Court. Read it here.

Trump and the 14th Amendment

Last week, President Donald Trump told Axios correspondents Jonathan Swan and Stef W. Kight during an interview, which will air Sunday night on HBO, that he would consider a plan to end birthright citizenship. See here for ISCOTUSnow’s analysis of the issue.

Written by ISCOTUS Fellow Michael Halpin, 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.

 

Weekly Preview: Week of November 5, 2018

Nov 5 Weekly Preview

           On Monday November 5, 2018, the Court will release orders and hear arguments in two cases having to do with a clash between state law and federal law. In Sturgeon v. Frost, the Court is being asked to decide whether the Alaska National Interest Lands Conservation Act, bars the National Park Service from regulating non-federal navigable waters surrounding State, Native, and private lands. Those who would answer “yes” are concerned about the impact on Alaskans who live on the surrounding lands and their ability to benefit from their natural resources. In Virginia Uranium v. Warren, the Court is being asked to decide whether the Atomic Energy Act, preempts a state law that looks like it regulates activity in the state’s jurisdiction (here, uranium mining), but has the effect of regulating the radiological safety hazards under the protection of the National Regulatory Commission. Read this editorial for more on Virginia Uranium, and this article for more on Sturgeon.

           On Tuesday, the Court will hear arguments in BNSF Railway Company v. Loos, which has to do with the Railroad Retirement Tax Act (click here for details), and Bucklew v. Precythe,which asks several questions about Missouri’s lethal injection death penalty protocol (click here for more about the case and broader issues relating to the death penalty). On Wednesday, the Court will hear arguments in Culbertson v. Berryhill (about attorney fees in Social Security claim cases) and Republic of Sudan v. Harrison (about whether someone can sue a foreign state by serving the state’s diplomat in the US).

           On Thursday November 8, 2018, the Court will take a break from hearing arguments and working on cases to hold the Investiture Ceremony for Justice Kavanaugh. Supreme Court Justices take two oaths: a Constitutional Oath, administered privately, and a Judicial Oath, administered in a live broadcast (click here for a historical overview of Supreme Court Oaths). After taking the Judicial Oath, a new Justice will usually walk down the 44 steps of the Court’s building with the Chief Justice. However, as CNN reports, Justice Kavanaugh has decided not to go on this walk with the Chief Justice because of security concerns. USA Today and The Mercury News have more on the death threats targeting Justice Kavanaugh and his family.

The Court will end the week with a conference on Friday November 9, and will discuss a number of cases. In Louisiana Public Service Commission v. Federal Energy Regulatory Commission, the Court is being asked to consider questions relating to the Federal Power Act conflicts with state law. In Patterson v. Walgreens, the Court is being asked to overturn a 1977 precedent. TWA v. Hardison, that limits the protections Title VII provides to employees engaging in religious practices. In Carty v. Texas, the Court is being asked to decide questions relating to habeas review of cumulative prejudice in trials for capital cases. The case involves a British woman on Texas’s death row, and has been receiving media attention in the United Kingdom and here in the United States.

The complete list of cases set to be discussed at that conference can be found here.

This post was written by ISCOTUS Fellow Zoe-Arthurson McColl, 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.