Criminal Law, Fourth Amendment, OT 2017

The End of Miller’s Time?

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By Michael Gentithes, Visiting Assistant Professor, Chicago-Kent College of Law.

The smartphones we carry in our pockets radically simplify our lives, reducing hour-long tasks to seconds and eliminating the need to separately carry a camera, map, book, and audio player. But should they also enable the government to access months of records of everywhere someone went while carrying a phone?

The Supreme Court recently considered that question when it heard oral arguments in the much-anticipated case of Carpenter v. United States. Specifically at issue was the government’s warrantless collection, for 127 days, of a robbery suspect’s “cell site location information”—data showing which cell phone tower the suspect’s phone accessed at particular times, and hence roughly where the suspect was. A bigger principle was also at issue: the claim that when we reveal information about ourselves to third party service providers, we relinquish any expectation that the information is private and will not be accessible to government investigators. That principle, known as the “third-party doctrine,” previously led the Court to permit the warrantless collection of the numbers we dial in our phones (Smith v. Maryland (1979)) and the financial information we disclose to a bank (United States v. Miller (1976)). The question Carpenter asks is whether that doctrine extends to the networked world, and to the government’s collection of data we routinely reveal to technological third parties about our location, shopping preferences, reading habits, and more.

That question matters. Though some might be untroubled by massive data dragnets because they feel they have nothing to hide, concerns about the information we reveal to third parties today extends to more than just embarrassing facts. The complete details of our daily thoughts and actions might be accessible to any government agent willing to look. By creating additional copies of that information, the government generates added opportunities for hackers—or internal whistleblowers—to access and publicize it. That possibility should startle the guilty and innocent alike.

During the Carpenter oral arguments, many of the Justices appeared sympathetic to such privacy concerns. But they failed to coalesce around a guiding principle. Though they acknowledged the limitations of third-party doctrine—which does not extend to medical information provided to one’s doctor, for instance, or the words a suspect says on the phone after dialing a number—they struggled to explain why that data receives Fourth Amendment protection while dialed phone numbers and financial records do not. And without such an articulable guiding principle, it seems arbitrary to place location data derived from cell phone towers in either the protected or unprotected category.

Squaring that circle is a difficult challenge the Justices should not sidestep. Fourth Amendment jurisprudence has been ridiculed as little more than nine people’s rudderless assumptions about the privacy citizens actually and appropriately expect. The Justices should state a principled basis upon which to classify location information—and the slew of other data points modern citizens reveal to third parties—as protected or unprotected. Doing so will require the Justices to acknowledge that informational privacy is a messy, non-binary continuum. Most data points fall somewhere between the wholly private contents of a conversation and the entirely unprotected numbers dialed to arrange it. Data points about our locations in public are one example. Though largely unprotected, locational data conveys some minimal amount of meaning, such that even if a citizen does not harbor a great enough expectation of privacy in each individual data point to render collection of that datum a search, she might have a great enough expectation of privacy in months of aggregated locational data to trigger the Fourth Amendment.

Enunciating such a rule may require reconsideration of previous holdings, especially those claiming that sensitive financial information disclosed to a bank is wholly unprotected. It might also require the Justices to acknowledge that Fourth Amendment jurisprudence is necessarily tentative, and that just as those holdings need revision, their holding in Carpenter may be reconsidered when new technology, and new cases, emerge. But such an acknowledgement simply makes explicit what was already inherent in the common-law-style decisions applying the Fourth Amendment to the modern world. And a genuine effort to craft such a tentative rule will both enhance the public’s security and its regard for the Court.

OT 2017, Second Amendment

Do the Justices Look More Favorably on Gun Regulation than Many Fear?

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By Cody Jacobs, Visiting Assistant Professor, Chicago-Kent College of Law.

Last Monday, the Supreme Court denied certiorari in Kolbe v. Hogan, a Second Amendment challenge to Maryland’s ban on assault weapons and large capacity ammunition magazines. As a result, the Fourth Circuit’s decision upholding the ban was left in place. The Court’s denial is notable because it continues a pattern: after holding that the Second Amendment protects an individual right to keep and bear arms in a pair of cases in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. City of Chicago), the Court has not granted cert in any major Second Amendment case since then despite having numerous opportunities to do so. Unraveling the mystery of why that is may have major implications for the future of Second Amendment litigation.

Kolbe seemed like a particularly plausible vehicle for a cert grant. Although there is no circuit split on the issue—the four federal courts of appeal that have heard Second Amendment challenges to assault weapons bans have upheld them—the Fourth Circuit’s decision upholding Maryland’s law in Kolbe was a little different than the previous decisions. The Fourth Circuit didn’t just uphold Maryland’s law, it held that assault weapons and large capacity ammunition magazines are not protected by the Second Amendment at all. In contrast, the other courts that upheld these bans concluded that such weapons were protected by the Second Amendment, but that the bans could nevertheless survive because of the strong public safety justifications behind them. Thus, Kolbe represented a relatively minimalist reading of Second Amendment rights that would presumably have been more likely to attract the Supreme Court’s attention.

On the other hand, the denial in Kolbe is not that surprising in light of the Court’s history of denying cert in these cases. According to a report from the Giffords Law Center to Prevent Gun Violence, the Court has denied cert in over 70 Second Amendment cases since 2008. This number includes several denials in cases involving perhaps the most litigated Second Amendment issue, the right to carry guns outside the home. Several states have requirements that applicants for concealed carry permits demonstrate a “good reason” that they need such a permit before one may be granted. Gun rights advocates have challenged these laws almost everywhere they exist and, with the exception of a successful challenge in the District of Columbia (discussed below), all of these challenges have been rejected by the courts of appeals and the Supreme Court has refused to grant cert.

This trend—which has resulted in most Second Amendment challenges to gun laws failing—has not gone unnoticed by the Court’s more conservative Justices. For the first five years after McDonald, these denials came without noted dissent. That changed when the Court denied cert in a 2015 case challenging a San Francisco ordinance requiring guns to be locked up when not in use. Justice Thomas, joined by Justice Scalia, dissented from the Court’s refusal to grant cert. That same year, Justice Thomas, again joined by Justice Scalia, dissented from the Court’s refusal to grant cert in a case challenging a city’s assault weapons ban. And just this summer, Justice Thomas, this time joined by Justice Gorsuch, dissented from the Court’s denial of cert in a case upholding California’s “good reason” requirement for concealed carry permits. In that dissent, Justice Thomas complained that the Court’s “decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right” and decried the “inexcusable” discrepancy between cases involving other rights, which the Court hears routinely, and cases involving the Second Amendment, which have not been heard in the Court since McDonald.

“Inexcusable” or not, this trend certainly is not what either side expected to happen in the immediate aftermath of Heller and McDonald seven years ago. So, what does it mean? (Of course, any attempt to read tea leaves from cert denials necessarily comes with all the usual caveats—the Court has repeatedly reminded us that a cert decision is not a decision on the merits.)

Let’s start with what we know. We know that at least two Justices voted to grant cert in some of these cases. It also seems relatively safe to assume that none of the four “liberal” Justices voted to grant cert, likely because they were happy with the results in the lower courts. The question, then, is why didn’t Justice Alito, Justice Kennedy, or Chief Justice Roberts vote to grant cert in any of these cases? All three of them voted with the majority in Heller and McDonald, and Justice Alito actually wrote the controlling opinion in the latter. It is possible that one of them could have voted to grant cert in these cases and for whatever reason choose not to dissent, but, none of them appear to agree with Justice Thomas that the repeated denials are particularly problematic.

The politics around the gun debate has changed significantly since 2010. Even though there has been no policy change at the national level, the political will for greater restrictions on guns surged in response to the Sandy Hook shooting in 2012 and has led to a wave of new gun laws, particularly in blue states. In fact, the law at issue in Kolbe itself was passed in direct response to Sandy Hook. It isn’t a stretch to imagine that the rapid killing of 20 six and seven-year-old children that had such a powerful impact outside the Court might have had an impact inside it as well.

If some of the Justices that formed the majority that recognized an individual Second Amendment right are now having second thoughts, or at least feeling amenable to a narrow reading of that right, that would have major implications for litigation strategy in Second Amendment cases. The few times that gun laws have been struck down by federal courts on Second Amendment grounds, state and local governments have declined to appeal those rulings, likely fearing that they would lose in the Supreme Court and roll back similar gun laws nationally. This happened just recently when the District of Columbia’s “good reason” concealed carry requirement was struck down by the DC Circuit. DC officials decided not to seek cert even though the decision created a circuit split because they were concerned that an unfavorable ruling from the Supreme Court would put similar laws around the country in jeopardy.

However, this caution may not be warranted and may even be counterproductive. The Court’s refusal to grant cert in case after case upholding a wide range of gun laws may show that a majority of the Court at least has serious doubts that these laws violate the Second Amendment. But that majority may not last with President Trump explicitly promising to fill any vacancies that arise during his term with pro-gun justices. The next time a gun law is struck down on Second Amendment grounds, perhaps the state or local government defending that law should seek cert and force those Justices who may be wavering behind the scenes to lay their cards on the table.

Prior to coming to Chicago-Kent, Professor Jacobs was a Staff Attorney at the Law Center to Prevent Gun Violence. His scholarship focuses on the Second Amendment and gun policy.

OT 2017, Weekly Preview

Arguments: Week of December 4, 2017

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The Court will hear arguments in five cases this coming week, including the blockbuster case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be argued on Tuesday, December 6. (People were already lining up to see this oral argument on Friday.) Masterpiece Cakeshop involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the bakery owner’s sincerely-held religious objection to same-sex marriage. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA). The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the both the free speech and free exercise provisions of the First Amendment. Earlier this year, SCOTUSblog hosted a symposium on Masterpiece Cakeshop, featuring commentary from advocates and legal scholars arguing for both sides of the case. More recently, commentators from both the left and the right continue to weigh in.

On Monday, December 4, the Court will hear oral arguments in an important federalism case, Christie v. National Collegiate Athletic Association. Christie analyzes whether the Professional and Amateur Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature partially repealed certain prohibitions on sports gambling, in 2014. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the repeal violates PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA  (in the language of key federalism precedents New York v. United States and Printz v. United States) unconstitutionally “commandeers” the state regulatory scheme for overseeing sports gambling. The Washington Post and Sports Illustrated both explore the implications of the case.

Also on Monday, the Court will hear arguments in Rubin v. Islamic Republic of Iran. Rubin concerns foreign sovereign immunity where a foreign country is a state sponsor of terrorism. Plaintiffs, eight American victims injured in a terror attack in Jerusalem in 1997, sued Iran under section 1610(g) of the Foreign Sovereign Immunities Act (FSIA) and received a $71.5 million dollar default judgment against the state of Iran. FSIA creates several exceptions to the general rule stipulating that foreign states cannot be sued in U.S. courts, one of which is the “terrorism exception,” allowing private citizens to sue foreign states determined to be sponsors of terrorism. The plaintiffs argue that, to collect on their judgment, the FSIA allows them to attach and execute four collections of ancient Persian artifacts in possession of the University of Chicago and Chicago’s Field Museum of Natural History. The Seventh Circuit, however, agreed with the arguments of the Islamic Republic of Iran, joined by the Field Museum and the University of Chicago, and concluded that the FSIA did not authorize the plaintiffs’ action.

On Wednesday, December 6, the Court will hear arguments for Murphy v. Smith and Marinello v. United States. Murphy considers a provision of the Prison Litigation Reform Act which requires that, when a monetary judgment is awarded to a plaintiff in a prisoner’s civil rights suit, a portion of that judgment “not to exceed 25 percent” shall be applied to pay for attorney’s fees awarded against the defendant. The district court interpreted this to mean that it had discretion to decide what percentage of the damages should be reserved, and ordered that 10 percent of the damages be put towards the fees. The Seventh Circuit reversed, following its precedent that the statute did not grant the district court discretion to reduce the maximum percentage of damages to be reserved, and instead holding that 25 percent of the damages awarded to the appellant, a former inmate who prevailed in a civil rights and state tort suit against correctional officers, should be directed to pay for the fees. (Disclosure: ISCOTUS Co-Director Carolyn Shapiro participated in a moot to help prepare respondent’s counsel for argument.)

Marinello is a case from the Second Circuit involving section 7212(a) of the Internal Revenue Code, criminally penalizing a defendant who “in any other way corruptly. . . obstructs or impedes, or endeavors to obstruct or impede the due administration of” the tax code. The defendant, Carlo J. Marinello, was found guilty of nine counts of tax-related offenses, including a violation of §7212(a). He asserts that the government was required to establish that there was a pending IRS action against him, and that he had knowledge of that action as part of its burden of proof in securing a conviction. The district court denied that Marinello’s motion for acquittal on this point, which the Second Circuit affirmed.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director, Chicago-Kent Professor Carolyn Shapiro.

OT 2017, Weekly Roundup

Oral Arguments Review: Week of November 27

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On Wednesday, the Court heard oral arguments in one of the most controversial cases of this term: Carpenter v. U.S. In Carpenter, the justices heard arguments on a Fourth Amendment issue asking whether people have a reasonable expectation of privacy when they relinquish specific information to a third party. In this case, the information is metadata about someone’s location generated when he uses his cellphone. In an unusual turn of events, oral argument on Carpenter lasted 20 minutes longer than the usual hour per argument session. By the end of the rancorous session, there was little consensuses on where a majority of the justices stood on how they would extend the government’s ability to acquire such records.

Timothy Ivory Carpenter was convicted for his participation in a number of robberies over a period of several months in the Detroit area. The government used data collected through his cell phone usage in proximity to cell towers—obtaining it without a warrant through Carpenter’s cellular provider—as evidence to convict him. Carpenter argues that the means by which the government acquired those records was a violation of his Fourth Amendment right against unreasonable searches and seizures.

Several justices, including Justice Alito, inquired about how to approach the issue stating, “[t]his new technology is raising very serious privacy concerns.” Justice Sotomayor equated the government using phone records to track an American’s location to “Big Brother,” and commented that many people, including youth, are attached to their phones, like an extra appendage. Justice Roberts made a point regarding the nature of cellphone usage in the modern age and how difficult it is to conceive that most voluntarily elect to relinquish data on their location.

Two of the Court’s Fourth Amendment precedents figured prominently in the argument. In Smith v. Maryland, the Court decided that people do not have a reasonable expectation of privacy when dialing a number using a landline, although they do have such an expectation in the contents of the call. And in U.S. v. Miller, the Court held that there is no reasonable expectation of privacy when the government subpoenas a bank for an individual’s financial records because those records contain information that the individual voluntarily disclosed to a third party and that the third party retained for its own business reasons. But the Court also has recently decided two cases involving new technology and the Fourth Amendment: Riley v. California, which held that the police cannot search the contents of an arrestee’s phone without a warrant, despite the analogy to a wallet, which they can search; and United State v. Jones, which held that installing a GPS device on a vehicle was a search within the meaning of the Fourth Amendment.

Although many Justices appeared concerned about the privacy interests at stake in Carpenter, they did not appear to have settled on a single approach to this question of new technology and the Fourth Amendment. As The Daily Caller’s Kevin Daley stated, “[t]hough a majority of the Court appeared willing to extend protections to a user’s location data, the justices fractured as to how meaningful those protections might be, as well as the legal rationale on which they should rely.” Dahlia Lithwick of Slate also reports on the argument, including on Justice Gorsuch’s property-based theory about why the Fourth Amendment should apply to the location data.

The Court also heard oral arguments in Cyan Inc. v. Beaver City Employees Retirement Fund, which addresses whether state courts lack subject matter jurisdiction over covered class actions regarding the 1933 Securities Act. The petitioner argues that the law bars concurrent jurisdiction over all “covered class actions,” and the respondent argues that it bars “mixed” state- and-federal law actions. The Justices exhibited some frustration at the way Congress wrote the law. Justices Alito and Gorsuch, for example, called the statutory language “gibberish,” while Justice Ginsburg called it “obtuse.” The argument also featured two particularly experienced Supreme Court advocates. Neal Katyal, who was Acting Solicitor General under President Obama, represented the petitioners in his 35th Supreme Court argument, breaking the record set by Thurgood Marshall for the most oral arguments presented by a lawyer of color. And Tom Goldstein, publisher of Scotusblog.com, argued for respondents.

On Tuesday, the Court also heard oral arguments in Digital Realty Trust v. Somers, a financial whistleblowing case within the purview of an anti-retaliation provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Paul Somers, an ex-employee of Digital Realty Trust (DRT), a real estate investment trust, told upper-management that his direct supervisor had eliminated internal controls of certain operations in violation of the Sarbanes-Oxley Act of 2002. That Act has a statute of limitations of just 180 days, so after several months Somers filed a suit against his former employer under the Dodd-Frank Act for disclosing the information. DRT argues that the law only protects whistleblowers who report wrongdoing to the Securities and Exchange Commission (SEC); not those who report wrongdoing internally.

Finally, the Court heard oral arguments in two intellectual property cases. In Oil States Energy Services v. Greene’s Energy Group, the petitioner, Oil States, argues that Congress violated Article III of the Constitution and the Seventh Amendment when it authorized the Patent and Trademark Office to invalidate their patent, on behalf of Greene’s Energy, without a jury trial. In the other patent case, SAS Institute Inc. v. Matal, the Court heard arguments on whether the Patent Trial and Appellate Board is required to issue final written decisions on patentability to all petitions involved, or if the Board may grant a written decision to only some petitions.

This post was drafted by ISCOTUS Fellow Michael Halpin, 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.

News, OT 2017

Supreme Court Adds E-Filing

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On Monday, November 13, the Supreme Court’s new electronic filing system became operational, fulfilling a commitment Chief Justice Roberts had made back in 2014.  In his 2014 Year-End Report of the Federal Judiciary, Chief Justice Roberts focused on information technology.  In the report, the Chief Justice described how the Court has used technology, from the pneumatic tubes of the mid-20th century that allowed journalists to transmit opinions from the courtroom to their colleagues in the press room downstairs, to the more recent advent of computer-assisted legal research.  He then moved on to electronic filing, describing the federal courts’ CM/ECF(Case Management and Electronic Case Filing) and PACER (Public Access to Court Electronic Records) systems, which the federal courts began using in 2001, as vital to making the court system more accessible and affordable to litigants. Chief Justice Roberts added that the Supreme Court was developing its own electronic filing system, while cautioning that the Court would move slowly when adopting information technologies.

The Supreme Court’s new system largely tracks the Chief Justice’s 2014 description, and it has received good reviews.  For now, all parties will continue to submit all filings on paper; however, the Court will require all parties who are represented by counsel to file their submissions electronically as well. The documents will be available free of charge on the Court’s website, which distinguishes this system from the PACER system. PACER, which charges $0.10 per page up to $3 per document, has come under criticism for making public documents harder to access and for making academic research on the courts more costly, as The Washington Post explains. At least two lawsuits have been filed challenging those fees.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

OT 2014

This Day in Supreme Court History—November 30, 1804

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On this day in 1804, the United States Senate created a committee tasked with preparing rules to govern the first impeachment trial of a Supreme Court justice. The previous March, the House of Representatives had voted to impeach Justice Samuel Chase. Chase had been appointed to the Court by George Washington in 1796 and had established a reputation for his staunch, outspoken commitment to the Federalist Party. This gained him the enmity of the Jeffersonian Republicans, who in 1800 had won the presidency and gained control of Congress.

Samuel Chase

Chase had been particularly vocal in criticizing the Republican repeal of the Judiciary Act of 1801. The repeal abolished a number of newly created federal courts, along with the judgeships Federalists had secured prior to losing power.  Chase told a Baltimore grand jury in May 1803 that the repeal would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”

At the urging of President Jefferson, Representative John Randolph of Virginia initiated impeachment proceedings against Chase. On March 12, 1804, the House approved eight articles of impeachment against the justice. Among them was the charge that Chase was “continually promoting his political agenda on the bench,” and thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.”

The House also charged him with “refusing to dismiss biased jurors,” and “excluding or limiting defense witnesses in two politically sensitive cases.” These charges stemmed from two trials over which Chase presided. One was the 1800 treason trial of John Fries, in which Chase had delivered a written opinion that defined treason as a matter of law, without hearing the lawyers’ arguments. Fries’ attorneys withdrew from the case because, claiming that Chase’s conduct had tainted the jury pool, rendering a fair trial impossible. Fries was easily convicted. The other was the 1800 trial of James Callender, who had been indicted under the Sedition Act for publishing a book in which he accused John Adams of being a British sympathizer and a monarchist. The Sedition Act, which a Federalist Congress passed in 1798, made it a crime to bring the president or Congress “into contempt or disrepute.” The House impeachment charge alleged that Chase had acted in a way to ensure Callender’s indictment and that Chase also failed to exclude a biased juror.

The Senate ultimately acquitted Chase of all eight charges on March 1, 1805. None of the articles of impeachment came close to getting the two-thirds majority needed for conviction. His victory is widely believed to be a critical foundation for the principle that the federal judiciary should be insulated—to a large extent—from the partisan machinations of the legislative and executive branches.

Chase went on to serve the rest of his life on the Court. He died in 1811.

 

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.

Conference Report, OT 2017

Conference Report – November 21, 2017 Conference

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On Monday, the Court issued orders from its pre-Thanksgiving Conference. It did not grant any new cases for full argument. In the most notable denial of certiorari, the Court declined to hear Kolbe v. Hogan, a challenge to a Maryland law that bans semiautomatic rifles and magazines. The law was passed in the wake of the Sandy Hook shooting and was upheld in a 10-4 en banc decision of the Fourth Circuit. As The Hill and The Baltimore Sun explained, the Fourth Circuit held that such military-grade weapons were not covered by the Supreme Court’s decision in District of Columbia v. Heller. Heller held that the Second Amendment confers an individual right to have a handgun in one’s home for purposes of self-defense. The only Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, which simply applied the Second Amendment, and the Heller holding, to the states. Commentators on both the left and the right have discussed this apparent lack of desire by most of the Justices to revisit the Second Amendment, although in June, Justice Thomas, joined by Justice Gorsuch, dissented from a denial of certiorari in on that basis.

On Monday, however, Justice Thomas dissented from the denial of certiorari in a case involving a different area of law, Upstate Citizens for Equality, Inc. v. United States. The Secretary of the Interior used the Indian Reorganization Act (“IRA”) to take into trust more than 13,000 acres of land, which had been under the state’s sovereign control for more than two centuries, for the Oneida Nation of New York. The Second Circuit upheld this action over the plaintiffs’ argument that this use of the IRA was an unconstitutional exercise of Congress’ power under the Indian Commerce Clause.

Justice Thomas said he would have granted certiorari to reconsider the Court’s Commerce Clause precedents, which, he said, courts are applying in a way that gives Congress plenary power to pass laws related to Indian affairs. Justice Thomas asserted that the Clause extends only to regulating trade with Indian tribes whom the state has not incorporated. The IRA, Thomas wrote, allows the Secretary merely to “take into trust land that an Indian tribe already owns.” Thomas expressed concern that the Second Circuit’s application of Supreme Court precedent showed how far the Court’s precedents interpreting the Clause have strayed from the original understanding. Under the precedents, Thomas said, “Congress could reduce a state to near nonexistence by taking all land within its borders and declaring it sovereign Indian territory…When our precedents permit such an absurd result, something has gone seriously awry. It is time to fix our error.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 and by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

 

Death Penalty, News

SCOTUS News Update: Travel Ban Filings, Death Penalty Challenges, and Errors in Opinions

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On Tuesday, the Trump administration asked the Supreme Court to allow full reinstatement of President Trump’s latest travel ban order on September 24, and block the Hawaii District Court’s order suspending full implementation of the travel restriction while plaintiffs, including the International Refugee Assistance Project, challenge the ban. Solicitor General Noel Francisco filed the request at the Court late Tuesday and argued the Court would likely hear the case if the Ninth Circuit upholds the injunction. The Court had previously agreed to hear challenges to Trump’s original travel ban, but it later dismissed the case as moot because the 90-day ban on immigrants from six majority Muslim countries expired before arguments. The Court has given plaintiffs until Tuesday, November 28 to respond to the request.

At Bloomberg, Jordan S. Rubin discusses Hidalgo v. Arizona, a pending cert petition originally scheduled for consideration for the November 21 conference but now rescheduled with no new conference date yet assigned.  Hidalgo considers the constitutionality of Arizona’s death penalty sentencing scheme, which includes so many “aggravating factors” – specific conditions regarding the class of defendants eligible for a death sentence – that virtually every defendant convicted of first-degree murder is eligible for the death penalty. The petitioner, Abel Hidalgo, also argues that the Court should hold that the death penalty “cannot be administered in accordance with contemporary standards of decency” and is thus a violation of the 8th Amendment. Rubin notes, however, that only Justices Breyer and Ginsburg have expressed an interest in re-evaluating the constitutionality of the death penalty. The article also quotes Margery M. Koosed,a  professor at The University of Akron School of Law, who argues it is more likely that the Court will grant review of the Arizona-specific question because the “justices are usually more comfortable ‘chipping away’ than taking a ‘broad-based’ approach.”

Ryan Gabrielson at ProPublica discusses the implications of a long-standing fear held by many legal scholars: justices on the Court using erroneous statistical information in their rulings. The article highlights the implications of a distinction drawn by legal scholar Kenneth Culp Davis between “legislative facts”, which are assertions about the real world, and  “adjudicative facts”, which relate to legal precedent and procedure. Davis asserted in 1987 that “[m]uch of our law is based on wrong assumptions about legislative facts.” In his concurring opinion in U.S. v. Leon, Justice Blackmun articulated that these wrong assumptions are partly attributable to “institutional limitations” that constrict the Court’s ability to gather information.

Gabrielson cites at least seven instances between 2011 and 2015 where a justice used incorrect information when deciding a case, including Arizona v. U.S., in which the Court decided whether Arizona could enact a law that, among other things, allowed law enforcement agents to verify the citizenship status of anyone detained by state authorities. Although most of the law was struck down, verification of citizenship was upheld. Writing for the majority, Justice Kennedy stated, “[A]liens are reported to be responsible for a disproportionate share of serious crime.” Kennedy cited the Center for Immigration Studies, which published a report stating undocumented individuals comprised 8.9% of Maricopa County’s population, and they were responsible for 21.8% of the felonies. However, the organization calculated these statistics by utilizing data from a variety of sources, including a 2008 study conducted by former Maricopa County Attorney, Andrew Thomas. The study stated that 18.7% of all felonies in the county were attributed to undocumented individuals, which is still much higher compared the number of undocumented individuals in the county. Thomas was ultimately disbarred in Arizona for “dishonesty, fraud, and deceit” weeks before Justice Kennedy delivered the opinion. It was found that Thomas misrepresented misdemeanor offenses as felonies to enhance the perception of the severity of criminal activity, and that ultimately, his reported percentage of felonies committed in Maricopa County by undocumented individuals was an estimate.

Another example is NASA v. Nelson, in which Justice Alito wrote for a unanimous Court. Upholding background checks on scientists at the Jet Propulsion Laboratory, Alito explained that 88% of private companies use background checks. But according to Pro Publica, that statistic came from an amicus brief filed by the National Association of Professional Background Screeners — and that organization was unable to substantiate its claim.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2018, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

History of the Court, Justices, SCOTUS Fun Facts

Justice Ginsburg Wins the Genesis Prize Foundation’s Lifetime Achievement Award

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The  Genesis Prize Foundation announced on Wednesday November 15 that Justice Ruth Bader Ginsburg will be the first recipient of their Lifetime Achievement Award, which they are awarding to mark the fifth anniversary of the Genesis Prize. According to the Foundation, the prize has been marked “the Jewish Nobel” by Time Magazine.  Justice Ginsburg will be presented with the award in Israel next summer by Israel’s former Supreme Court Justice President, Aharon Barak. The committee of former Genesis Prize recipients that chose Justice Ginsburg for the award were Michael Bloomberg, Michael Douglas, Yitzhak Perlman, Sir Anish Kapoor, and Natalie Portman. These previous winners of the Genesis Prize described Justice Ginsburg as a “perfect role model for young Jews.”

As the first Jewish woman to be appointed to the Supreme Court, Justice Ginsburg has been vocal about her identity as a Jewish woman and has spoken at several events celebrating Jewish holidays. According to US News, she was a surprise speaker at an event celebrating Rosh Hashanah in Washington this year where she spoke about how her faith has guided her to be empathetic towards members of minority groups who experience discrimination. Justice Ginsburg, along with Justice Stephen Breyer, who is also Jewish, was instrumental in ensuring that the Court not hear arguments on Yom Kippur in 1995. Nathan Lewis of Jewish Telegraphic Agency noted that they argued Jewish lawyers who had been preparing their arguments for several weeks would be forced to choose between arguing before the court and observing their religious holiday. Since then, the Supreme Court has not been open on Yom Kippur.

Along with Justice Ginsburg, Justice Stephen Breyer and Justice Elena Kagan, who is also Jewish, have spoken publicly about their religion, such as when Breyer and Kagan spoke at the Jewish Federations General Assembly in November of 2014.  

Justices Ginsburg, Breyer, and Kagan are far from the first Jewish Justices on the Court. Five more Jewish Justices have previously served: Abe Fortas, who served from 1965 to 1969 Arthur Goldberg; who served from 1962 to 1965; Felix Frankfurter, who served from 1939 to 1962; and  Benjamin Cardozo, who served from 1932 to 1938; and Louis Brandeis, who served from 1916 to 1939.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

News Update

SCOTUS News Update

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As its October 2017 term continues in full swing, the Supreme Court continues to make news.

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Greg Stohr of Bloomberg recently wrote a valuable article on the dominance of free speech cases on the Court’s docket. This term the Court has either heard arguments or agreed to hear arguments in First Amendment cases involving a range of issues: a baker’s denial of service to same-sex couples, mandatory union fees, partisan gerrymandering, abortion counseling, rights regarding political clothing at the voting polls, and retaliation due to criticizing local government. Stohr quotes Harvard Law School professor Rebecca Tushnet’s noting that  “the current court interprets the First Amendment more expansively in many ways that it did in the past,” and that these free speech claims have more “charisma” than other constitutional claims. Stohr also quotes the University of Chicago’s David Strauss noting that “when it comes to free speech, pretty much everybody is an activist.”

In other news, Mark Sherman of ABC News noted that in making legal filings available online like other federal courts, “surely but slowly, the Supreme Court is entering the 21st century.” The Court has never been eager to embrace technological innovation, of course. Chief Justice John Roberts has said that the courts are “late to the harvest of American ingenuity,” because their “primary role is to resolve disputes fairly.” The justices also routinely sent notes to each other on paper, “definitely not by email.” The Court is still unlikely to allow cameras in the courtroom in the foreseeable future or to allow live audio access to oral arguments.

News reports say that President Donald Trump, who recently updated his list of potential Supreme Court nominees, predicts he will appointment three more justices to the Court. The president apparently believes that Justices Kennedy and Ginsburg are ready to retire and that Justice Sotomayor may leave the Court due to health issues. As to Justice Sotomayor, she has has suffered from diabetes since childhood, but there are no signs that she will be leaving the Court anytime soon. Vanity Fair reported that the Justice has said she is vigilant about maintaining her health. And Justice Ginsburg has repeatedly stated that she has no plans to retire. “As long as I can do the job full stream, I will do it,” she has said. ABC News reports that Justice Ginsburg refers to herself as “Rapid Ruth,” and Justice Sotomayor as “Swift Sonia,” due to their speedy opinion writing.

In late October, Chief Justice John Roberts and Justices Elena Kagan, Anthony Kennedy, Stephen Breyer, Neil Gorsuch and retired Justice David Souter attended a bicentennial celebration at Harvard Law School, their alma mater. During the event, the justices shared numerous personal stories. Justice Kagan revealed that fellow Justice Breyer was her favorite professor in law school. Justice Kennedy recalled that one of the more feared professors during his time there was nicknamed “darkness at noon.” Justice Breyer said that one of the most influential pieces of advice he received came from Senator Ted Kennedy, who once asked him, “Do you want credit or do you want the result?” Justice Gorsuch recalled that he was “scared to death” during his first day of law school, and that clerking for Justice Kennedy was one of the most important experiences of his professional career. Justice Kennedy then joked to his former clerk, “You didn’t always do what I told you to do when you were my clerk—you better start doing it.”

 

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