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Weekly Roundup – May 15, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

On Monday, the Shakespeare Theatre Company held The Trial of Don Quixote, at which Justice Ruth Bader Ginsburg and Justice Stephen Breyer presided.

Natalie Portman will star in a new biopic on the life of Justice Ginsburg, titled On the Basis of Sex.

A recent Associated Press-GfK poll finds that many Americans doubt that the Supreme Court can rule impartially on Obamacare. However, the implications of those results may be slightly compromised by the Pew Research Center’s most recent knowledge quiz, which finds that the public has a dim awareness of the makeup and role of the Supreme Court—in fact, only 33% of respondents knew that there are three women on the Court!

On Thursday, Hillary Clinton told her fundraisers that her nominees to the Supreme Court—if she were to be elected president—would have to share her belief that the Court’s controversial ruling in Citizens United (2010) must be overturned.

Illinois Governor Bruce Rauner has raised a lot of eyebrows with his decision to sidestep an Illinois statute and not collect “fair share” fees from public employees. He’s now raised a few more by justifying himself through the Supreme Court’s decision in Harris v. Quinn (2014)—in which five justices questioned such fees.

Forbes lists the major decisions the Court has yet to issue this Term.


Weekly Roundup – May 8, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

The Economist looks at last week’s same-sex marriage case at the Supreme Court in light of the larger culture war on the issue.

The Court announced on Monday that it will review an Obama administration regulation designed to promote efficiency in the electricity market.

In a speech this week, former Supreme Court Justice John Paul Stevens spoke out against congressional restrictions on the closure of the Guantanamo Bay military detention facility, and argued that former detainees should receive reparations from the U.S. government.

The Court has asked the U.S. Solicitor General to write a brief weighing in on Nebraska and Oklahoma’s legal dispute with Colorado regarding the latter state’s marijuana laws.

The Court’s ruling last week in Williams-Yulee v. Florida Bar, which found Chief Justice Roberts writing for the liberal majority, upheld a Florida rule that prohibits judicial candidates from soliciting campaign contributions.

An Atlantic feature by two Yale law professors describes what they see as Chief Justice Roberts’s roadmap for campaign-finance reform.

SCOTUSblog reviews Kevin J. McMahon’s book Nixon’s Court, which was recently awarded the Erwin N. Griswold Prize by the Supreme Court Historical Society.

Predicting the Winners in Glossip v. Gross and Mata v. Holder

On Wednesday, the Supreme Court heard oral argument in two cases, the final oral arguments scheduled this Term.  Thanks to all who indulged my predictions for this Term.  It’s been a fun, but at times rocky ride.  I will have a more in depth review of my past predictions and success/failure rate this summer.  I started out by correctly predicting the first 7 cases, but then things went south.  Let’s hope I can keep my prediction rate over 50%, or, at least, that I correctly predict the Obamacare and same sex marriage cases.  We’ll see.

The first case, Glossip v. Gross, asks ” (1) whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious; (2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.”

Figure 1.


As Figure 1 shows, the total question count favors the Respondent (Gross, the Solicitor General of Oklahoma).  The Court asked the Petitioners 21 more questions.  The question count by individual Justice shows a split along ideological lines.  Four conservative Justices asked more questions to the Petitioners: Roberts (+10), Scalia (+4), Kennedy (+1), and Alito (+19).  Three liberal Justices asked the Respondent more questions: Breyer (+3), Sotomayor (+6), and Kagan (+4).  Justice Ginsburg asked both sides 2 questions.  Justice Thomas asked no questions.

Justice Kennedy appears again to be the swing vote.  It’s a slim margin of 1 question more to the Petitioners, which is a virtual tie. But, if I have to make a prediction, I will go with a victory for the Respondents (SG of Oklahoma).

The second case, Mata v. Lynch, asks whether the Fifth Circuit erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).

The Court ended the Term’s oral arguments on a whimper.  In the final oral argument, the Court asked only 41 questions total to 3 attorneys, a number that may be the fewest asked all Term if my memory serves me correct.

Figure 2.


Because this is an asymmetrical case (3 attorneys), it’s more difficult to predict.  As Figure 2 shows, the number of questions asked to each of the 3 attorneys was pretty even: 15 to the Petitioner, 12 to the Solicitor General supporting reversal, and 14 to the Court-appointed attorney supporting affirmance.  The question count by Justice doesn’t reveal much.  Given the relatively few number of questions asked, the differentials in questions asked to each side is modest.   And the Court may not have wanted to pepper the Court- Appointed Amicus with questions for a position that the SG didn’t support.  Although the numbers are close, given the SG’s support of a reversal, I will go with a win for the Petitioner or a reversal.

Weekly Roundup – May 1, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

In addition to the return of Obamacare in King v. Burwell, the other highly-anticipated case this spring was on the issue of same-sex marriage in Obergefell v. Hodges. See below for some of the many takes on the case, which the Court heard on Tuesday:

Do pretrial inmates have the same constitutional rights as people on the outside? Slate considers Monday’s Kingsley v. Hendrickson case.

Director Chris Schmidt took a look at another big case this week in which the Court considered a lethal injection protocol used in Oklahoma executions.

The Washington Post reflects further on what the lethal injection decision could mean for the death penalty in the United States.

Predicting the Winner in Kingsley v. Hendrickson

On Monday, the Supreme Court heard oral argument in Kingsley v. Hendrickson, which asks whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.

This case is difficult to predict because it’s an asymmetrical case involving 3 different positions and 3 advocates, though with different allotments of time.  The Solicitor General (presumably receiving 10 minutes as an amicus) argued in support of affirmance, supporting neither party.  The SG and Petitioners agree that the proper test is objective, but disagree on its application to the case (with the SG arguing that the jury instructions used below  incorporated an objective standard and therefore there is no need for reversal).

As shown in Figure 1 below, the total question count favors an affirmance.  The Petitioners received the most questions–17 more than the Respondents and 11 more than the SG.  Interestingly, the Respondents even received 5 fewer questions than the SG (which presumably had only 10 minutes of argument as amicus compared to the 25 minutes for the Respondents).  Paul Clement (former SG) represented the Respondents and received a noticeable amount of response time uninterrupted by the usual flurry of questions.

Figure 1.


The count by Justice also favors affirmance.  Four Justices asked the Respondents the fewest questions of the 3 advocates–indeed asking only 1 question total to the Respondents: Roberts (0), Scalia (1), Kennedy (0), and Alito (0).  By contrast, Justice Ginsburg asked the Petitioner 3 questions, the SG 2 questions, and the Respondents 4 questions.  Justice Breyer asked the Petitioner and Respondents 2 questions each, but the SG 8 questions.   Justice Sotomayor asked the Petitioner 1 question, the SG 2 questions, and the Respondents 7 question.  Finally, Justice Kagan asked the Petitioner 1 question and the Respondents 5 questions, but none to the SG.

Based on these numbers (especially the 5 conservative Justices asking only 1 question to the Respondents) , I will go with either an affirmance or a victory for the Respondents.

The Supreme Court and Firing Squads

Turning to the other big case of the week….

Earlier today, the Supreme Court heard oral arguments in Glossip v. Gross, a challenge to the three-drug lethal injection protocol Oklahoma uses for its executions. The challengers argue that the procedure violates the ban on “cruel and unusual punishments” found in the Eighth Amendment of the U.S. Constitution.

The last time the Supreme Court considered a constitutional challenge to a method of execution was in Baze v. Rees (2008). In a 7-2 vote, the Court upheld the then prevalent lethal injection drug protocol. This protocol is no longer available, however, because it relied on a drug whose manufacturer, responding to pressure from anti-death penalty groups, no longer permits its use for executions. This is why Oklahoma is using a new drug—midazolam—to render the inmate unconscious prior to injecting a second drug to paralyze him and then a third to stop his heart.

“[L]et’s be honest about what’s going on here,” an obviously irritated Justice Alito said at oral argument today.

Executions could be carried out painlessly…. Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are
free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to
using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

Justice Scalia soon jumped in:

I guess I would be more inclined to find that it was intolerable
if there was even some doubt about this drug when there was a perfectly safe other drug available. But the States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs. And now you want to come before the Court and say, well, this third drug is not 100 percent sure.
The reason it isn’t 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as—as relevant to the decision that—that 
you’re putting before us?

When Justice Kennedy pressed the attorney challenging Oklahoma’s drug protocol about whether this reason for the state’s adoption of the controversial drug was relevant to the Court’s analysis, the lawyer responded that it was not. The existence or non-existence of alternatives should not be relevant to the Court’s analysis of any given method of execution.

The discussion then turned in a predictable direction: toward what exactly those potential alternatives might be. It was at this point that the firing squads appeared.

Oklahoma and Utah currently have laws that reinstate the firing squad if lethal injection is no longer available. (The Utah law was just passed in March.)

Justice Sotomayor alluded to the possibility of firing squads coming back, which caused Justice Ginsburg to ask whether death by firing squad causes pain. When the lawyer said she did not know, Chief Justice Roberts jumped in:

Do you have a guess? I mean, is there a reason that the States moved progressively to what I understand to be more humane methods of execution? Hanging, firing squad, electric chair, death ­­ you know, gas chamber?… [Y]ou’re not suggesting that those other methods are preferable to the method in this case, are you?

Later in oral argument, when Justice Kagan compared the injection of one of the drugs in the lethal injection protocol to being burned alive—a method of execution that she said everyone agreed would violate the Eighth Amendment—Justice Alito offered a particularly macabre hypothetical: “If an anesthesiologist rendered a person completely unconscious, and then the person was burned alive, would that be cruel and unusual punishment?” After the lawyer said that this might not be unconstitutional, Justice Alito declared her response “incredible.”

This kind of discussion of the constitutional status of methods of execution commonly used in the past is familiar terrain for the Court in these types of challenges.

In 2008, at oral argument in the Baze case, the Justices also considered whether alternatives to lethal injection would still be constitutional. Justice Scalia made clear where he stood on the issue when he felt the challengers were pushing their constitutional argument too far:

Justice Scalia: Where does that come from, that you must find the method of execution that causes the least pain? We have approved electrocution, we have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here. Where does this come from that in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?

Then there was an exchange between Justice Alito and Donald Verrilli (at this point a partner in the law firm Jenner & Block; he would be appointed Solicitor General in 2011). Verrilli was representing Baze, the death row inmate who was challenging Kentucky’s lethal injection drug protocol.

Justice Alito: Isn’t your position that every form of execution that has ever been used in the United States, if it were to be used today, would violate the Eighth Amendment?

Mr. Verrilli: No.

Justice Alito: Well, which form that’s been used at some time in an execution would not violate?

Mr. Verrilli: We would have to suggest it to the test that we are advocating, which it would… whether there is a risk of torturous pain.

Justice Scalia: Hanging certainly would, right?

Mr. Verrilli Jr.: Well, it would have to be subjected to the test.

Justice Scalia: Is that a hard question? Is that a hard question, whether hanging would, whether you had experts who understood the dropweight, you know, that was enough that it would break the neck?

Mr. Verrilli Jr.: If there is a risk of torturous pain and if there are readily available alternatives that could obviate the risk, then any significant risk—

Justice Scalia: Hanging’s no good. What about electrocution?

Mr. Verrilli Jr.: –Well, it would depend. The argument about electrocution, Justice Scalia, is whether or not it is painless, and that was its point when it was enacted, that it would be a painless form of death.

Justice Scalia: It has to be, it has to be painless?

Mr. Verrilli Jr.: It does not, but that was its point, and I think one would have to subject it to the test to see whether it inflicts severe pain that is readily avoidable by an alternative.

Justice Alito: You have no doubt that the three judge protocol that Kentucky is using violates the Eighth Amendment, but you really cannot express a judgment about any of the other methods that has ever been used?

With two states willing to revive death by firing squad if lethal injections are struck down by the courts, the question of whether commonly used past methods of execution would be constitutional today has become much less hypothetical.

In the 2008 Baze decision, Chief Justice Roberts wrote for the majority a fascinating passage that seems particularly relevant in light of the current situation, in which some states might be willing to revive discarded methods of execution if they can no longer use lethal injection.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily
moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different.

Roberts describes a dynamic by which the Court has read the Eighth Amendment in such a way as to give state legislatures broad latitude in choosing their methods of execution. And states have done their part to move American society toward more human methods of execution. But the challengers to Oklahoma’s lethal injection drug protocol have an argument that Oklahoma is no longer holding up its end of the bargain. Oklahoma’s procedure is arguably less humane that the three-drug protocol it replaced, which is the one that the Court upheld in Baze. Whether the risk of pain in the new protocol is unconstitutional will be debated; but it seems clear that the risk of pain was lower with the previous method. The reason for this backtracking is not some coarsening of sensibilities in Oklahoma (or the various other states that use this same protocol). It is the difficulty in procuring drugs for the execution because drug manufacturers are refusing to allow their drugs to be used for executions.

It seems unlikely that a majority of the Court will strike down Oklahoma’s drug protocol. There is enough dispute about the risks of pain involved with this method of execution that the Baze holding will probably serve to allow the Court to do what it has always done in these challenges, and reject it. But states are having more and more difficulty in securing drugs for executions. And whether the pressure comes from drug companies or from the Court, there is a possibility that lethal injection will no longer be a feasible option for executions. Might this possibility affect the justices ruling in the current challenge to Oklahoma’s lethal injection protocol? If lethal injections are no longer feasible, and we see a revival of discarded methods of execution, what will the Court do when these methods are challenged as violating the Eighth Amendment?

Oral Arguments in the Same-Sex Marriage Cases—What Did We Learn?

What did we learn from yesterday’s oral arguments in the historic same-sex marriage cases? The basic take-away seems to be that the issue looks a lot harder inside the Supreme Court than it does outside. The run of success for the cause of same-sex marriage—in state legislatures and referenda, in state courts and the lower federal courts, and in opinion polls—has given a sense of inevitability to the issue. And it has seemed reasonable to assume that the Supreme Court would surely join this powerful trend, issuing a landmark ruling that will only become more celebrated over time.

Nothing that occurred yesterday necessarily upsets this assumption. It is still more likely than not that in late June we will have a Court ruling striking down bans on same-sex marriage nationwide. But what we did not get was the kind of marriage-equality victory parade we have seen playing out in the mainstream press and in many of the lower federal courts. To read the commentary surrounding the Supreme Court’s decision to let stand federal appeals court decisions striking down same-sex marriage bans or Judge Posner’s scathing dismissal of the case against same-sex marriage, one feels that the arguments on one side of the debate are simply dissolving before our eyes.

The situation looked quite different inside the Supreme Court yesterday. From the perspective of the conservative justices on the Court, perfectly good reasons remain for the Court to stay its hand and allow the issue to continue to play out at the state level. The issue “is not whether there should be same­sex marriage,” emphasized Justice Scalia, “but who should decide the point.” To this question of “who decides?” Mary Bonauto, the lawyer for the challengers to the same-sex marriage ban, concluded her argument with the following response: “It’s not about the Court versus the States. It’s about the individual making the choice to marry and with whom to marry, or the government.”

I sense that one of the dynamics playing out in the Court yesterday was that even if Justice Kennedy knows that he is going to side with the challengers, he wants to emphasize the difficulty of the issue. This may help to protect the perceived legitimacy of the Court when the eventual ruling comes from a divided Court, probably in a 5-4 break. It also draws attention to Justice Kennedy himself. It personalizes the issue. The story is less about the inevitability of the issue due to the political, legal, and cultural transformation taking place and more about the struggle of a justice—a story Kennedy has drawn attention to in the past.

Predicting the Winner in Obergefell v. Hodges, the Same-Sex Marriage Cases

The Supreme Court heard oral argument in the historic case of Obergefell v. Hodges, the same-sex marriage cases, which ask two questions:  1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?, and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Figure 1


On the first question, the total question count favors the Petitioners (Obergefell), as shown in Figure 1.  The Court asked the Respondents 19 more questions than it asked the Petitioners’ side (including the Solicitor General as amicus).

The question count by Justice , however, provides the real story.  As expected, the Justices appear to be divided along ideological lines.  The 4 liberal Justices asked far more questions to the Respondents, suggesting a leaning to the Petitioners: Ginsburg (+5), Breyer (+15), Sotomayor (+8), and Kagan (+27).  Justice Kagan asked an unusually high number of questions (28) to the Respondents, but only 1 to the Petitioners’ side.  Her 27-question differential is essentially responsible for the difference in the total question count above.

By contrast, 3 conservative Justices asked far more questions to the Petitioners, which suggests a leaning to the Respondents: Roberts (+8), Scalia (+12), and Alito (+19).  Justice Thomas asked no questions, but one can predict he would join this conservative bloc.

So how will Justice Kennedy, the swing vote, decide the first issue?  He asked 2 more questions to the Respondents (8 questions total compared to 6 questions for the Petitioners’ side, including the Solicitor General as amicus in support of the Petitioners).  It’s a slim margin, but it’s noteworthy that Justice Kennedy asked the Petitioners and the SG only 3 questions each, but the Respondents 8 questions.  This is what I call an “asymmetrical case” with 2 lawyers on one side and 1 lawyer on the other side.  One might expect the presence of the second lawyer on one side might inflate the question count somewhat, given that the Justices might want to ask similar questions to both attorneys on one side–thereby inflating that side’s question count.  In this case, however, the total number of questions asked by Justice Kennedy to the Petitioners and SG is still lower than the number he asked the Respondents.

Based on these numbers, I predict a 5-4 victory for the Petitioners on the first issue, with Justice Kennedy in the majority.  The Petitioners argued that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex.

Figure 2.


On the second question, the total question count slightly favors the Petitioners.  The Court asked the Respondents 4 more questions than it asked the Petitioners, as shown in Figure 2 above.  But, again, the real story is the question count by Justice, which shows the same ideological breakdown among Justices as in the first issue, though with much smaller margins (the Justices didn’t ask many questions related to the second issue).  The 4 liberal Justices asked the Respondents more questions: Ginsburg (+1), Breyer (+4), Sotomayor (+7), and Kagan (+2).  Meanwhile, 3 conservative Justices asked the Petitioners more questions: Roberts (+1), Scalia (+1), and Alito (+7).

Justice Kennedy asked only 1 question, and it was to the Petitioners.  Does that suggest Justice Kennedy is leaning to the Respondents?  Possibly, but it’s an even slimmer reed to base a prediction than the 2-question margin in the first issue.  Of course, if the Court ruled in favor of the Petitioners on the first issue, it would not even be necessary to decide the second issue.

Given the volume of questions on the first issue, I see the Court deciding the case on the first issue.  The question count by Justice is close.  But it favors slightly the Petitioners.  I’ll go with a victory for the Petitioners on the first issue or, alternatively, on the second issue.

Oyez Covers Same-Sex Marriage Arguments

Today, the U.S. Supreme Court hears oral arguments in Obergefell v. Hodges, a consolidation of cases that ask the Court to consider two key questions about same-sex marriage:

Is there a constitutional right to same-sex marriage? And are states required to recognize same-sex marriages performed in other states?

Because of the landmark nature of this case, the Supreme Court has agreed to release audio of oral argument later this same day. You can expect Part I of arguments just after 12:30 PM EST, and Part II just after 2:00 PM EST, both on the Oyez case page.

The Court has allotted 2.5 hours for argument, which is significantly more than the usual one hour. If you’re interested in the highlights and don’t have the time/ability to listen to the full argument, we’re going to live tweet the arguments as we listen to them as soon as they’re posted. Follow us on Twitter (@Oyez), or visit our profile to see our tweets, no Twitter account necessary.

Here’s a quick breakdown of the people involved in the case we’ll be mentioning throughout argument:

The Justices:
Chief Justice Roberts
Justice Scalia
Justice Kennedy
Justice Thomas
Justice Ginsburg
Justice Breyer
Justice Alito
Justice Sotomayor
Justice Kagan

Advocates for the petitioners (families suing the states):
Mary L. Bonauto
Douglas Hallward-Driemeier

Advocates for the respondents (states defending same-sex marriage bans):
John J. Bursch
Joseph F. Whalen

Solicitor General for the United States, supporting the petitioners
Donald B. Verrilli, Jr.

Questions about the case? Tweet us and we’ll do our best to respond quickly.

Predicting the Winners in EPA Cases

Sorry, it’s taken me awhile to analyze the Michigan v. EPA, which the Supreme Court heard back on March 25.  The case asks whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.  I predict a 5-4 decision in favor of the Petitioners.

Figure 1.


As Figure 1 shows, the total question count favors slightly the Petitioners (Michigan), whose side received 5 fewer questions than the Respondents (EPA/SG and Industry Respondents).

The question count by Justice suggests a split along ideological lines. Four conservative Justices asked more questions to the Respondent’s (EPA) side: Roberts (+16), Scalia (+4), Kennedy (+1), and Alito (-8).  Four liberal Justices asked the Petitioners (Michigan) more questions: Ginsburg (+2), Breyer (+3), Sotomayor (+7), and Kagan (+9).  The differential for Justice Kennedy is just one question, so he appears to be the swing vote again!  Based on these numbers, I will go with a victory for the Petitioners.