OT 2017, Weekly Preview

Arguments: Week of October 30, 2017

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

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

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

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

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

History of the Court, This Day In Supreme Court History

This Day in Supreme Court History — October 27, 2005

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On this day in 2005, Harriet Miers withdrew her nomination to the Supreme Court. George W. Bush had nominated Miers to replace the retiring Sandra Day O’Connor. According to NPR, conservatives had publicly expressed displeasure with her lack of judicial experience and concern that she might not be as pro-life as they would like. And “[c]onservative legal scholars, such as former Supreme Court nominee Robert Bork, complained that Miers had no experience with constitutional law and no known judicial philosophy to guide her thinking on important issues, such as private property rights and religious freedom.”

Moreover, Bush’s nomination of Miers, who was his White House counsel, elicited accusations of cronyism from, among others, Ronald J. Pestritto, of the conservative think tank, The Claremont Institute. “The substantial weight of the evidence of her capacity to be a justice — that is, the key government positions she has held — are all the fruits of her continuing relationship with the president,” Pestritto wrote.

The Senate Judiciary Committee, led by Senator Arlen Spector (R-PA) and Patrick Leahy (D-VT), expressed disappointment with Miers’s 56-page response to their questions. The committee asked her to resubmit it with additional documents from her work in the White House. Miers’s withdrawal, and Bush’s statement accepting the withdrawal, cited the need to keep executive information private. Miers wrote:

Dear Mr. President:

I write to withdraw as a nominee to serve as an Associate Justice on the Supreme Court of the United States. I have been greatly honored and humbled by the confidence that you have shown in me, and have appreciated immensely your support and the support of many others. However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.

As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great Nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.

I share your commitment to appointing judges with a conservative judicial philosophy, and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it. I am most grateful for the opportunity to have served your Administration and this country.

Later that day, Bush publicly said he “reluctantly accepted” the decision. After touting her accomplishments and strengths, Bush said:

I understand and share her concern, however, about the current state of the Supreme Court confirmation process. It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president’s ability to receive candid counsel.

Harriet Miers’ decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers — and confirms my deep respect and admiration for her.

I am grateful for Harriet Miers’ friendship and devotion to our country. And I am honored that she will continue to serve our nation as White House counsel. My responsibility to fill this vacancy remains. I will do so in a timely manner.

Spector said he was “sorry to hear that Miss Miers has decided to remove her name from consideration.” He added: “I think that this is a sad episode in the history of Washington, D.C. … The way Harriet Miers has been treated is really disgraceful.”

Leahy said of the withdrawal: “I look forward to consulting with the President on his third nominee to succeed Sandra Day O’Connor on the Supreme Court, and I hope it is a decision he approaches with the necessary independence from partisan factions.”

Justice Samuel Alito later filled the vacancy. (The first nominee was John Roberts, but when Chief Justice Rehnquist died, Bush renominated Roberts to replace Rehnquist.)

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

Justices

News from and about the Court

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Arguments in the Supreme Court start up again on Monday. In the meantime, here’s some fun coverage of the Court and the Justices.

Ariane de Vogue of CNN wrote an interesting article regarding how the Court “shuns the spotlight.” The Court traditionally bans cameras or live recording in the courtroom during oral arguments, but posts the taped audio recordings afterwards. Only those present in the courtroom, such as Arnold Schwarzenegger, who was present during Gill v. Whitford, get to hear what goes on behind the closed doors in real time, and no one but those present ever get to see it. However, many argue that the Court should have live cameras and/or recordings taking place during the arguments. Josh Douglas of the University of Kentucky College of Law tweeted recently, “SCOTUS still living in the ‘70s when it comes to technology and transparency.” Others, such as Congressman Gerry Connolly stated the Court “is not some mystical priesthood, and “that in the digital age it strains credulity that this modest effort at transparency would prove impossible.” However, it does not appear that the Court is going to change their practices on this issue anytime soon. Justice Souter once remarked, “I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Justice Sotomayor also commented that cameras may disrupt the Court’s process, and “might lead to some justices playing to the cameras or others to refrain from asking questions.” Chief Justice Roberts however appears to be making the Court’s work more accessible to the public by posting opinions online with their announcement and posting transcripts and audio recordings as soon as possible.

In other news, the film “Marshall” premiered on Friday. As Pete Williams of NBC notes the film marked the 50th anniversary of when Justice Thurgood Marshall took his spot on the bench as the first African-American Supreme Court justice. According to Williams, the film chronicles Marshall’s days as a pioneering civil rights attorney and focus on his work defending an innocent black chauffeur falsely accused of raping and murdering his employer. Williams also notes that Justice Elena Kagan, a former law clerk to Justice Marshall, called Marshall “the greatest lawyer of the 20th century, bar none, not even a close contest.” ISCOTUSnow featured a review of the film.

Justice Ginsburg’s trainer, Bryan Johnson was featured in People Magazine this week. Diana Pearl of People reports that Justice Ginsburg is a “fitness junkie” and has worked out with Johnson on Wednesdays and Fridays every week since 1999. Johnson wrote a book titled “The RBG Workout: How She Stays Strong…and You Can Too!” Ginsburg prefers to work out in one of the two Supreme Court gyms, and began doing so after she beat cancer for the first time. She prefers to listen to NPR or classical music during her workouts, is a pro at doing pushups, and is no “normal” 84-year-old. Pearl completed the Ginsburg workout and stated it was “intense.” Check out the Chicago Tribune for more information on the “T.A.N.” (tough as nails) justice and her workout routine.

The Seattle Times reported recently that Justice Gorsuch’s “office mate” is an elk named Leroy shot by the late Justice Antonin Scalia. When Justice Gorsuch inherited Scalia’s seat on the bench he inherited his office as well. The mounted elk head was presented to Gorsuch by Scalia’s former law clerk, Glen Summers who was present on the hunting trip in which Leroy was killed by the late hunting enthusiast Justice. According to Justice Gorsuch, he is “delighted to share space with Leroy,” and they “share a few things in common.” The Justice said they are both native Coloradans and both “received a rather shocking summons to Washington,” and “neither of us is ever going to forget Justice Scalia.”

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

OT 2017

Report on October 13 Conference

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While we wait for today’s Conference Order List, which will probably be released on Monday, here’s a summary of other recent orders and cert grants.

On Monday, October 16, the Court declined the petition for certiorari in Al-Nashiri v. Trump, a case involving Abd Al-Rahim Al-Nashiri, a Guantanamo detainee who has been held in U.S. custody for the past 15 years without trial for his alleged connection to the bombing of the U.S.S. Cole in 2000. Lyle Denniston, at Lyle Denniston Law News, notes that the denial indicates that the “troubled military commission system at Guantanamo Bay won’t be second-guessed by the Supreme Court” as this is the “second time within a week that the Court chose to bypass a Guantanamo case.”

The Court also announced cert grants in four cases. In United States v. Microsoft Corp. the Court will consider whether Microsoft must comply with a probable-cause-based warrant issued by the federal government to release specific electronic materials—controlled by the company—stored in an overseas datacenter. The government cites 18 U.S.C 2703 in their warrant for Microsoft to disclose the emails of a particular individual, which they argue was engaged in drug activity. The Second Circuit held in favor of Microsoft arguing that the government interpreted the warrant to be an “impermissible extraterritorial application of the statute.” As the National Law Journal explains, this case “highlights the current tension between law enforcement needs and privacy concerns in a rapidly changing digital landscape.”

In Dahda v. United States, a federal district court in Kansas issued a warrant for a wiretap under the Omnibus Crime and Safety Streets Act of 1968. The government tapped the phones of twin brothers Los and Roosevelt Dahda and used the evidence collected to convict them of conspiracy to distribute illegal drugs. Law enforcement wiretapped the brothers’ phones to intercept calls and collect evidence. On appeal, the brothers argued the court did not have jurisdiction to issue a warrant that covered calls when the phones were outside of the state of Kansas. The Tenth Circuit ruled in favor of the state. Justice Neil Gorsuch was on the Tenth Circuit panel that heard oral argument, although he did not participate in the final decisions, and he recused himself..

In Ohio v. American Express, the Court will hear oral arguments on AmEx’s usage of a contractual obligation to prevent merchants from steering consumers to use other credit cards and whether those rules hurt competition among other credit card companies in violation of Section 1 of the Sherman Act. The District Court ruled in favor of the plaintiffs — a group of states and, originally, the federal government– applying the “rule of reason” and finding that AmEx’s contracts stifled competition among other credit card companies and had no procompetitive benefits. The Second Circuit reversed. American consumers rely heavily on credit cards for their day-to-day purchases. Bloomberg reports that in 2011, there were 22 billion and worth roughly $2 trillion, according to court documents. (The federal government encouraged the Court not to take the case.)

Lastly, the Justices agreed to hear arguments on a Double Jeopardy case, Currier v. Virginia. The question before the Court is whether a defendant who consents to severance of multiple charges into subsequent trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of an acquittal. The State of Virginia indicted Michael Currier for stealing a safe as well as being a felon in possession of a firearm, all based on the theft of a safe that contained, among other things, firearms. During the first trial, the jury found him not guilty of stealing the safe. At the second trial (for the possession of a firearm charge), Currier argued that because he was found not guilty of stealing the safe, he was unable to possess the contents of the safe—the guns. The Virginia Supreme Court rejected this argument.

And on Tuesday, October 17, the Court removed Leidos, Inc. v. Indiana Public Retirement System from the November argument calendar after parties informed the justices that they are near a settlement. Leidos is a case concerning whether a Securities and Exchange Commission regulation constitutes a “duty to disclose” required by the Securities and Exchange Act, which allows shareholders to sue a company for excluding information from shareholder reports. Greg Stohr, of Bloomberg, reports that in a joint filing on October 6, the parties asked the Court to drop the case while they finalize the settlement.

This post was drafted by Matthew Webber, ISCOTUS Fellow, Chicago-Kent Class of 2019 and edited by Anna Jirschele, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2018 and Elisabeth Heiber, ISCOTUS Fellow, Chicago-Kent Class of 2019.

 

History of the Court

Baseball and the Supreme Court

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To celebrate the beginning of this year’s baseball World Series, let’s revisit a few of the moments when the national pastime and the nation’s highest court intersected.

The Supreme Court played no small role in the development of major league baseball. In a series of three decisions spread out over the twentieth century, the Court recognized, and then twice upheld, baseball an exemption from federal antitrust law. (Organized baseball has always been vulnerable to charges of operating a monopoly–although the teams compete on the field, the owners cooperate in ways off the field that run afoul of basic antitrust principles.) The first decision, Federal Baseball v. National League, came in 1922. Writing for a unanimous Court, Justice Oliver Wendell Holmes, Jr. held that while professional baseball was a business, and while baseball teams did frequently travel across state lines, baseball games were not interstate commerce, and hence federal antitrust law (which was based on Congress’ authority to regulate interstate commerce) did not apply to professional baseball. Three decades later, in Toolson v. New York Yankees (1953), the Court revisited the issue and reaffirmed its 1922 ruling. Although by this point they recognized that major league baseball was clearly big business and within the power of Congress to regulate, it held that if baseball was to lose its antitrust exemption, the institution to do it was Congress, not the Court. But Congress did not take away baseball’s antitrust exemption, and the baseball monopoly was again before the Court in 1972 in the case of Flood v. Kuhn. And once again, major league baseball won at the High Court, as a divided Court affirmed Toolson and Federal baseball. (The owners’ monopoly power over the game would soon be weakened, however, with the advent of free agency for players later in the 1970s.)

Not only has the Supreme Court decided major cases involving major league baseball, but many devoted baseball fans have sat on the bench.

In 1973, while the Court heard arguments during the National League Championship Series, Justice Potter Stewart, a Cincinnati Reds fan, passed a note on the bench to Justice Harry Blackmun after learning that Vice President Spiro Agnew had resigned. The note read: “V.P. Agnew just resigned!! Mets 2 Reds 0.”

Justice Stevens, a lifelong Chicago Cubs fan, attended one of the most storied games in the history of professional baseball: game three of the 1932 World Series, between the Cubs and the New York Yankees, the game of Babe Ruth’s famous “called shot” home run. In an interview, Stevens recounted witnessing the historic moment.  Ruth “did point at the scoreboard, and then hit the ball out of the park the next pitch,” the justice explained. “But I think he was in an argument with [Cubs’ pitcher] Guy Bush at the time. And I didn’t know if he wanted to hit the pitch there or he wanted to hit Guy Bush.”

Image result for baseball and supreme court

Justice Sonia Sotomayor was surely unhappy to see the Yankees just miss out on the World Series this year. A lifelong fan of the Bronx Bombers, in September she attended a Yankees game and sat in “The Judge’s Chambers”—a section in Yankee Stadium named in honor of Yankees rookie right fielder Aaron Judge, complete with wood paneling and foam gavels for fans. Sotomayor was given her very own personalized set of judge’s robes, complete with an embroidered Yankees logo.

 

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

OT 2017, Weekly Roundup

Oral Arguments: Week of October 9, 2017

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The week of October 9, the Supreme Court heard argument on only two days and in only three cases. (The Court was closed on Monday, October 10, for Columbus Day, and it had previously canceled oral argument in the travel ban cases, originally set for argument on Tuesday.) Nonetheless, as our pre-argument post explained, the cases, if not headline grabbing, raised important to questions of procedure, jurisdiction, and statutory interpretation.

On Tuesday, the Court heard arguments in Hamer v. Neighborhood Housing Services of Chicago. The case presents the question of whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive an appellate court of jurisdiction over an appeal that is statutorily timely, or whether the Rule is instead nonjurisdictional and thus subject to considerations such as forfeiture, waiver, and the unique-circumstances doctrine. Rule 4(a)(5)(C) grants a district court leave to extend the time for an appellant to file a notice of appeal upon a showing of excusable neglect or good cause, but only within 30 days of the 30-day window in which an appellant must file a notice of appeal of a final judgment.

Hamer’s lawyer, Jonathan Herstoff, argued that the time limit cannot be jurisdictional because it was not imposed by statute, but rather is part of a rule drafted by an advisory committee and approved by the Court. Herstoff argued that Article III authorizes Congress alone to determine the lower courts’ jurisdiction. Damien Stewart, representing Neighborhood House Services of Chicago (“NHSC”), argued that the rule was asserted in premerits briefing in the appellate court, and therefore, NHSC could be victorious if the Court found the rule jurisdictional, as the 7th  Circuit did, or determine that it is a mandatory claim-processing rule that was not waived. Howard M. Wasserman of SCOTUS Blog provides an argument analysis here.

On Wednesday the Court first heard argument in National Association of Manufacturers v. Department of Defense, which addresses whether appellate courts have jurisdiction under the Clean Water Act (“CWA”) to decide petitions to review a rule, known as the waters-of-the-United States rule, that defines the waters that fall within CWA jurisdiction. The CWA provides appellate court jurisdiction when the Environmental Protection Agency  “issue[s] or den[ies] any permit,” but no permit was at issue in this case. If the appellate court does not have jurisdiction, lawsuits challenging the rule must be filed in district court. The petitioners, including the National Association of Manufacturers (“NAM”), as well as some environmental groups and states, argued that lawsuits challenging the rule should be filed in district courts because the rule is not among the seven EPA actions that the Act says are reviewable directly in appellate courts.. Justice Ginsburg, took NAM’s lawyer to task, pointing out that, under its argument, appellate courts would make decisions regarding individual permits while district courts would make broader decisions, and “one would think it would be just the other way around.” NAM’s lawyer, however, pointed to the statutory text, and the Ohio Solicitor General, who also argued for petitioners,  attempted to provide a unifying theme. Finally, as Marcia Coyle discussed at Law.com, the Justices asked whether the case will be moot if President Trump rescinds the Clean Water Rule as promised. The government acknowledged that the case would be moot if Trump carries through his threat, but nobody knows how long such a process would take, and as NAM’s lawyer argued, there may be challenges to such a change in the rules that could slow the process down even more. More information about the argument is available at SCOTUSBlog.

The second argument on Wednesday and the last for the week was Jesner v. Arab Bank, which presents the issue of whether the Alien Tort Statute (“ATS”) categorically prohibits lawsuits against corporations. The ATS, which dates back to 1789, gives federal courts jurisdiction over lawsuits brought by aliens alleging torts “in violation of the law of nations or a treaty of the United States.” In Jesner, victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank, and Gaza, brought the case against the Arab Bank, which the plaintiffs alleged had facilitated terrorism.

Jeffrey Fisher, arguing for the plaintiffs, made a text-based argument that the wording of the statute yields a “straightforward result” that corporations may be held liable for violating international law. True to originalist form, Justice Gorsuch pressed Fisher on whether his clients’ interpretation of the statute was consistent with Congress’s understanding in enacting the statute in 1789, and he rejected Fisher’s attempt to rely on Supreme Court precedent from 1900. As described in more detail at Just Security and The Originalism Blog, the case presents complicated questions about not only congressional understanding in 1789, but also international law and the relationship between the ATS and U.S. foreign policy. Amy Howe also provides a detailed analysis of the argument at her blog, Howe on the Court.

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

History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—October 20, 1890

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On this day in 1890, Justice Sherman Minton was born in Georgetown, Indiana. From early in life, Minton seemed to have a knack for being in the right place at the right time. Among his law school classmates at Indiana University was Wendell Willkie, the Republican ran unsuccessfully against  Franklin Roosevelt in the 1940 presidential election. After law school (where Minton ranked first in his class while also playing on the university’s football team), Minton was awarded a one-year scholarship to pursue a master’s degree at Yale Law School, where he took a class with ex-President and future Chief Justice William Howard Taft. Justice Minton went on to serve as a captain in World War I and then returned to Indiana to practice law. When he became a Democratic United States Senator in 1934, he made a fortuitous friendship with a senator from Missouri names Harry Truman. In 1949, President Truman would appoint Minton, who was then  on the bench for the Seventh Circuit Court of Appeals, to the United States Supreme Court.

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Although Minton’s failing health meant that he would only serve on the Court for seven years, his time on the bench came at a critical moment for the Court, most notably the 1954 ruling striking down segregated schools in Brown v. Board of Education. Although never a leader among the group of strong personalities who were on the high court at the time, Minton proved a forceful figure in moving some of his more reluctant colleagues toward this eventful decision. Of Minton, Felix Frankfurter once said that he would not be remembered as a great Justice, but as a great colleague by the Justices he served with.

Minton’s poor health forced his retirement in 1956. He died in 1965.

 

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

Justices

Justice Elena Kagan at Chicago-Kent College of Law & ISCOTUS

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On Monday, October 16, Chicago Kent was honored to host Justice Elena Kagan. She spoke to a packed house for an hour, answering my questions about the Court, how she works, and her background. We will post video of the interview when it’s available, and we’ll also have our own write-up of the day. But in the meantime, coverage is available at the Chicago Daily Law Bulletin, the Chicago Tribune, the New York Times,  and SCOTUSblog. Election law expert Rick Hasen, who was at Chicago-Kent to deliver the keynote address at the ISCOTUS/Law  Review  Symposium on The Supreme Court and American Politics the following day, live-tweeted the talk. Below, enjoy the talents of my colleague Evelyn Brody, who sketched this picture during a faculty lunch with Justice Kagan.

History of the Court, This Day In Supreme Court History

On This Day in Supreme Court History—October 15, 1991

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On this day in 1991, the Senate confirmed Clarence Thomas to the Supreme Court. Thomas, who President George H.W. Bush nominated for the seat that opened after the retirement of Thurgood Marshall, the first African American Supreme Court Justice, experienced one of the most contentious confirmation processes in American history. Critics of Thomas’ conservative record as a Reagan administration official and then a federal appeals court judge opposed his appointment from the start, particularly in light of the liberal legal icon whose seat he was to occupy. The nomination then took a scandalous turn when Anita Hill, a law professor at the University of Oklahoma, accused Thomas of sexually harassing her when he was her supervisor at the U.S. Equal Employment Opportunity Commission. Thomas’s nomination barely survived the ensuing controversy. The Senate vote to confirm him was 52-48.Image result for clarence thomas

Clarence Thomas was born into poverty in rural Georgia in 1948. Thomas’ grandfather came to play a particularly influential role in his life, as he would detail in his memoir, My Grandfather’s Son. Thomas initially planned to become a priest, but after the assassination of Martin Luther King Jr., Thomas became disillusioned with the Catholic Church for not taking a strong enough stance on civil rights issues. He went to Holy Cross College, where he earned a degree in English Literature. He then attended Yale Law School, the beneficiary of an affirmative action program designed to bring more African American students to the school.

Before his nomination to the Supreme Court, Thomas spent the majority of his career in government. After passing the bar in 1974, he worked for the Attorney General of Missouri until 1977, when he became a legislative assistant to Senator John C. Danforth. Four years later, President Reagan appointed him Assistant Secretary for Civil Rights of the Department of Education, and the following year he was appointed Chairman of the U.S. Equal Employment Opportunity Commission. After serving eight years at the EEOC, President Bush appointed Thomas to the D.C. Circuit Court of Appeals, where he served for only 19 months before being nominated to the Supreme Court.

President Bush insisted that Thomas was not intended to fill a “quota” by having a black justice on the Court. “I expressed my respect for the ground that Mr. Justice Marshall plowed,” the President explained, “but I don’t feel there should be a black seat on the Court or an ethnic seat on the Court.” Bush insisted that he simply picked the most qualified person for the position.

Anita Hill’s shocking testimony before the Senate Judiciary Committee, just days before the confirmation vote, sparked a media explosion and threw Thomas’ confirmation in doubt. Thomas lashed out, accusing his opponents of engaging in a “high-tech lynching.” After being confirmed by the narrowest margin for approval of a Supreme Court justice in more than a century, President Bush, declared, “Judge Thomas has demonstrated to the Congress and to the nation that he is a man of honesty, dedication, and commitment to the Constitution and the rule of law.”

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