New Cases for the Court: The September 2017 Long Conference

The Supreme Court has just announced that it will hear eleven new cases in the Term that begins on Monday. Between the end of June and the beginning of September every year, the Supreme Court is on recess. Over the summer, many of the Justices travel or teach. New law clerks begin work as well, generally on a staggered schedule that overlaps with outgoing clerks. Petitions for certiorari (or “cert petitions”) continue to be filed throughout the summer, however, and the law clerks help the Justices review them. Then, at the end of September, in what is often called “the Long Conference,” the Justices meet to discuss the backlog of cert petitions. Generally, more cert petitions are granted as a result of the Long Conference than any other Conference throughout the year.

This year was no exception. The Supreme Court held its Long Conference on Monday, September 25, and on Thursday, September 28, it released a list of orders from that Conference, including the new cert grants. Specifically, the Supreme Court granted certiorari in 11 cases, although three of those cases (Dalmazzi v. United States, Cox v. United States, Ortiz v. United States) present the same issue and have been consolidated for argument purposes.

(1) Janus v. American Federation of State, County, and Municipal Employees, Council 31 is the most high-profile of the cases granted on Monday. Janus marks the third time in recent years that right-to-work advocates have attempted to persuade the Court to overrule a 1977 case called Abood v. Detroit Bd. of Education. Abood held that the First Amendment allows a public-sector union to collect “fair share fees” from employees in a collective bargaining unit even if those employees chose not to become union members. Fair share fees reimburse a union for the work they do on behalf of the non-member employees.

In Harris v. Quinn in 2014, the Supreme Court considered a First Amendment challenge to fair share fees that personal care assistants to disabled individuals were required to pay the union. Although these assistants were paid by the State of Illinois, in some regards, the disabled individuals functioned as their employees. Holding that because these personal care assistants were not “full fledged employees,” the Court declined to apply Abood to them, meaning that they did not need to pay the fees, and the five-Justice majority expressed great skepticism about that case. It did not, however, overrule Abood.

The next chapter in this saga came in Friedrichs v. California Teachers Association, which squarely presented the question as to whether the Court should overrule Abood. After oral argument but before any opinion issued, however, Justice Scalia unexpectedly died. The Court subsequently affirmed the lower court (meaning that Abood remained intact) by a 4-4 vote. Commentators on both the right and the left agree that this time, the Court will actually reach the Abood issue and that the remaining four Justices from the Harris majority (Chief Justice Roberts and Justices Alito, Kennedy, and Thomas) will be joined by Justice Gorsuch to give the right-to-work forces the victory they have sought.

(2) In McCoy v. Louisiana, the Court will consider the rights of a death row inmate who was convicted for the murder of his estranged wife’s son, mother, and stepfather. McCoy’s lawyer tried to persuade him to take a plea deal, which McCoy refused. At trial, the lawyer conceded his guilt during the opening statement against McCoy’s clear intention to maintain his innocence. (The lawyer believed that the plea would make it possible to avoid the death penalty.) McCoy attempted to fire the lawyer and represent himself two days prior to trial but the judge denied his request. At trial, McCoy claimed the police were responsible for the murders and that the judge’s goal was to allow the lawyer to “throw away all aspects of my due process,” according to the ABA Journal. The lawyer attempted, but ultimately failed, to convince McCoy that the evidence against him was so strong that he should take a plea deal. Washington’s Top News reports that this case will determine “who is ultimately in charge of the case, the lawyer or his client, and whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes.”

(3)The Court also added two Fourth Amendment cases to its docket. The first is Collins v. Virginia. As Constitution Daily describes, the issue of Collins centers on the Fourth Amendment’s “automobile exception,” which the Court has previously held gives police officers the power to search a vehicle without a warrant if they have probable cause to believe it contains contraband. According to Cornell Law School’s Legal Information Institute, the exception could be invoked if, for example, the contraband is in plain sight and it is likely it and the vehicle will be gone by the time a warrant is issued. In Collins, the police saw a picture of what they believed to be a stolen motorcycle on Collins’s Facebook page. They then located the house where he was staying and found the motorcycle under a tarp near the house. Collins was then charged with receiving stolen property. He is arguing that the search was not covered by the exception and is unconstitutional. The Court will have to decide if the exception allows for a police officer to enter private property and search a vehicle there without a warrant.

(4) In its second Fourth Amendment case, Byrd v. United States, the Court will decide what privacy interests a driver of a rental car has when the driver was not authorized on the rental agreement. Terrance Byrd was driving his girlfriend’s rental car with her permission, when he was pulled over for a traffic violation in Pennsylvania. The police searched his car and found large amounts of heroin and body armor. Bryd was arrested and charged with possession of body armor by a felon and with possession with intent to distribute heroin. Byrd argued the police violated his Fourth Amendment protection against unreasonable search and seizure. Both the district court and the Court of Appeals for the Third Circuit disagreed, however, explaining that he had no reasonable expectation of privacy because he was not on the rental agreement. As Adam Liptak of the New York Times notes, however, the Third Circuit acknowledged that there is a circuit split among federal appeals courts as to “whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement.” The Court will address this question, though argument has yet to be scheduled in this case.

(5) The Court has also agreed to hear a Fifth Amendment case. In City of Hays, Kansas v. Vogt, Police officer Matthew Vogt, who worked for the City of Hays, applied for a position in a different cities. During the interview he stated that he had kept a knife given to him while he was an officer working for the City of Hays. According to Justia, he was offered the new job but only on the condition that he returned the knife to the Hays police department. He complied, but became the subject of a criminal investigation and lost the offer. The investigation led to two felony charges that were eventually dropped for lack of probable cause after a hearing. Vogt sued both cities and four individual police officers, arguing that the use of his earlier statements in the probable cause hearing violated his Fifth Amendment right against self-incrimination. The district court dismissed all of Vogt’s claims. The Tenth Circuit Court reversed the trial court’s dismissal as to the City of Hays, although it upheld the dismissal as to the other jurisdiction and the police officers. According to SCOTUSBlog, Justice Gorsuch, a former member of the 10th Circuit bench, has recused himself.

(6) In Encino Motorcars, LLC v. Navarro, the Court will revisit a case that it has reviewed before. Bill Chappell of NPR WVIK explains that the case “turns on the interpretation of labor and overtime laws as they apply to employees at car dealerships.” Navarro was a service advisor at a car dealership, and he is arguing he was protected by overtime laws, even though they do not apply to salesman or mechanics. According to Lynn White of The Federalist Society, service advisers were long considered exempt from the Fair Labor Standards Act’s overtime requirement. But in 2011 the Department of Labor (“DOL”) issued a rule stating that advisors are not exempt from overtime. The Supreme Court ruled that the DOL’s decision was “arbitrary and capricious,” and thus violated the Administrative Procedures Act. It ordered the Ninth Circuit to rule again without taking the DOL’s regulation into account. The Ninth Circuit has now ruled for a second time that service advisers are not exempt.

(7) In Rosales-Mireles v. United States, will address the standard for correcting plain error of a lower court and the application of a 1993 case, United States v. Olano. According to Amy Howe of SCOTUSblog, Rosales-Mireles pleaded guilty to reentering the United States illegally and was sentenced to 78 months in prison – an incorrect sentence calculation. Although the Fifth Circuit agreed that Rosales-Mireles sentence was incorrect, it refused to correct its error. The court argued that the kind of errors that would “seriously affect the fairness, integrity or public reputation of judicial proceedings” are “ones that would shock conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Supreme Court is set to address this standard, which Rosales-Mireles argues is too high and too harsh.

(8) Finally, Dalmazzi v. United States, Cox v. United States, Ortiz v. United States (consolidated cases) all involve the propriety of a judge serving simultaneously on the United States Court of Military Commission Review and either the Army or Air Force Court of Criminal Appeals.

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS co-director Carolyn Shapiro.


A Look Ahead at the Week at the Supreme Court

Monday marks the start of a new term at the Supreme Court. By all accounts, this looks to be a major term for the justices, stocked full of high-profile cases; Justice Ginsburg has already declared it to be “momentous.”  

The term kicks off Monday morning with arguments in three consolidated cases: Epic Systems Corporation v. Lewis, Ernst & Young v. Morris, and National Labor Relations Board v. Murphy Oil USA. These cases present the question of whether an agreement that requires an employer-employee disputes be resolved through individual—not class or collective—arbitration is enforceable. The National Labor Relations Act guarantees employees the right to engage in “concerted activities” in pursuit of their “mutual aid or protection.” But the Federal Arbitration Act states that arbitration provisions “must be enforced.” The Court has ruled that this provision “will yield only when it has been overridden by a contrary congressional command in another federal statute.” The employers in these cases argue that the NLRA has no such command because it does not refer to class proceedings and its history provides no evidence that Congress intended  the NLRA to override arbitration agreements. The employees counter that the NLRA renders the arbitration agreements illegal and therefore unenforceable.

Later on Monday, the Court will hear re-arguments in Sessions v. Dimaya. Sessions presents the issue of whether the definition of “aggravated felonies” under the Immigration and Nationality Act (INA) is unconstitutionally vague.  Under the INA, a non-citizen who is found guilty of an aggravated felony is subject to deportation. The Immigration and Nationality Act defines “aggravated felonies” broadly, including a “crime of violence.” James Dimaya was convicted of residential burglary, which a judge determined was a “crime of violence” and thus an “aggravated felony” under the INA.

Sessions  is one of two immigration cases that the Court scheduled for reargument this week. National Law Journal discusses the possible motives the Court had for scheduling reargument in this case and in Jennings v. Rodriguez (discussed below), and the particular challenges re-arguments pose for lawyers.

On Tuesday morning, the Court hears one of the most highly anticipated cases of the term, Gill v. Whitford, a redistricting case. For a detailed discussion of Gill, look at the ISCOTUS oral argument preview.  Also worth visiting is FiveThirtyEight’s recent podcast on the case.

Also scheduled for Tuesday is re-argument in Jennings v. Rodriguez. The case presents the issue of whether a noncitizen in custody must receive a bond hearings and possible release if custody lasts six months. The case is likely to impact the effectiveness of an executive order that President Trump issued in January that called for ending the “catch and release” of immigrants facing deportation. The Court is likely to discuss two previous cases that possibly contradict each other: Zadvydas v. Davis from 2001, and Demore v. Kim from 2003.  In Zadvydas, the Court held that judicial review of detention decisions is necessary. In Demore, the Court invoked plenary power and held that there must not be judicial review of a provision of the immigration statute that requires detention of immigrants who are awaiting deportation because of a crime. This case also presents the question of whether courts must afford immigrants bond hearings every six months, automatically. SCOTUSblog has an excellent summary of the issues in Jennings.

On Wednesday the Court hears District of Columbia v. Wesby, a case stemming from the 2008 trespassing arrest of a group of people who were having a party in an unoccupied house. Police officers went to the house after neighbors reported the raucous partying and “illegal activities” and arrested twenty-one people on trespass charges. After making the arrests, police talked to the homeowner, who said he had not given anyone permission to enter the house. The case considers whether the officers had probable cause to make the arrests. The defendants argue that the officers did not because they had no evidence that the partiers knew or should have known they were trespassing. The Court will also decide whether the officers were entitled to qualified immunity. The Washington Post delves into the goings on that wild night and the procedural history of the case, which includes a divided appellate court that upheld a judgment requiring the officers to pay almost $1 million.

The Court concludes the week’s oral arguments with Class v. United States. This case presents the issue of whether a guilty plea results in the waiver of a defendant’s right to challenge the constitutionality of the statute under which he was convicted. Capitol police arrested Rodney Class in 2013 on charges of violating a federal law that prohibits possession of readily accessible firearms on Capitol grounds. Class, who represented himself in court, filed motions challenging the statute as violating the Second Amendment but then agreed to plead guilty. He argues that he did not expressly waive his constitutional claims when he made his guilty plea, and that the Court should implement a default rule that such issues are available on appeal in the absence of an express waiver. SCOTUSblog has a detailed argument preview.


This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS co-director Christopher Schmidt.

This Day in Supreme Court History—September 29, 1958

On this day in 1958, the Supreme Court issued its opinion in Cooper v. Aaron, a case involving efforts to desegregate schools in Little Rock, Arkansas. The situation in Little Rock had escalated from a local struggle over whether black children would be allowed to attend a previously all-white high school into a national constitutional crisis involving fundamental questions about the supremacy of the Supreme Court on questions of constitutional interpretation and the authority of the federal government over the states.

Local officials in Little Rock had initially indicated a willingness to accept the Supreme Court’s 1954 ruling in Brown v. Board of Education, which struck down state-mandated racial segregation in schools. State-level politicians, led by Arkansas Governor Orval Faubus, decided to follow the path being taken by most other states in the South and mobilized in opposition to Brown. The Arkansas state legislature amended the state constitution with language denouncing Brown and asserting the right of the state to defy its requirements. The legislature then passed a law that allowed parents to opt out of sending their children to integrated schools. The day before Little Rock was to begin its desegregation process in the fall of 1957, Faubus ordered the National Guard to surround Central High School, saying “blood would run in the streets” if black students tried to enter the school.

William Cooper and other members of the Little Rock school board then went to federal court asking for a suspension of the board’s own integration plan. The federal judge ruled in the school board’s favor. Thurgood Marshall and his team of lawyers at the NAACP’s Legal Defense Fund appealed the decision to the Eighth Circuit, which overturned the lower court ruling. Nine African American students—known to history as the Little Rock Nine—would attend Central High School during the 1957-58 school year under the protection of U.S. army troops. Cooper then appealed the case to the Supreme Court, which convened in a special session in the summer of 1958 to hear the case before the next school year began. (Listen to the oral arguments here.)

On September 12, a day after the completion of oral arguments at the Supreme Court and just days before the new school year was scheduled to begin in Little Rock, the Court unanimously ruled that there would be no more delays and that Little Rock had to continue ahead with its desegregation plan.

Governor Faubus responded by ordering closed all four high schools in Little Rock. The measure was necessary, he explained, “in order to avoid the impending violence and disorder which would occur, and to preserve the peace of the community.” The schools would remain closed for almost a year.

The Supreme Court’s reasoning came later in the month. On September 29, the Court released a unanimous opinion to which each of the nine justices signed his name—an unprecedented step designed to emphasize the unity of the Court, which included two justices who had come to the Court after Brown.

Much of the opinion—which was largely drafted by Justice William Brennan—focuses on the particular issues involved with the desegregation of the Little Rock schools. The opinion reiterates the justices’ commitment the interpretation of the Fourteenth Amendment that the Court had committed itself in Brown. But the concluding section of the opinion turns to the larger issue of the case, offering the Court’s refutation of “the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case.”  This section of the opinion offers a remarkable mixture of uncontroversial constitutional truisms and bold, novel assertions of judicial authority. The Court noted that under Article VI of the Constitution, the Constitution is the “supreme law of the land.” The Court also approvingly referenced the words of  Chief Justice John Marshall’s famous 1803 ruling in Marbury v. Madison, in which he declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Building from all these relatively uncontroversial pieces of constitutional text and Supreme Court doctrine, the Court concluded that Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.” The move the Court made here is worth noting. The Court blended the principle of constitutional supremacy and the idea that the Court’s primary role is legal interpretation to craft a claim for judicial interpretive supremacy. It is not just the Constitution that is supreme, but the Court’s interpretation of the Constitution that is supreme. At the time, most saw this bold assertion on the part of the Court as justified in the context of the struggle to implement Brown. But these lines from Cooper had–and still have–their critics, who wonder whether the Court may have gone too far in proclaiming itself the supreme interpreter of a document that proclaims itself to be the voice of We the People.

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Christopher Schmidt.

Gill v. Whitford Oral Argument Preview

Next Tuesday the Court will hear oral arguments in Gill v. Whitford, a controversial and widely anticipated case about partisan gerrymandering in Wisconsin. In addition to reviewing the district court’s analysis and holding, the Court will have to answer the basic question of whether partisan gerrymandering cases even present issues that courts are able to decide.

Amy Howe of SCOTUSblog has provided background into the case that Justice Ruth Bader Ginsburg suggests may be the “most important” case of the term. In 2011, following the 2010 census, the Republican-controlled legislature in Wisconsin passed a new legislative map. William Whitford, a retired law professor, filed suit after the 2012 elections. He alleged that the map favors Republican candidates and disadvantages Democrats to such an extent that it violates Democrats’ First Amendment right to freedom of association and Fourteenth Amendment guarantee of equal protection. Whitford argues that the Wisconsin Legislature deliberately decreased effectiveness of the Democratic vote by “cracking” some Democratic voters — breaking them up between Republican-dominated districts, thereby diminishing their electoral influence —  and “packing” other Democratic voters into a small number of districts that some argue was drawn to lock in Republican control. Supporting data shows inconsistencies between the number of voters and the electoral outcomes. For example, in 2008, before the maps were redrawn, Democrats won 57% of the vote for state assembly elections and controlled 52 seats in the assembly compared to the 46 held by Republicans. Four years later, however, Democrats won 52% of votes but retained only 39 assembly seats compared to the 60 seats held by Republicans. Check out The New York Times for more detailed information on the mapping and election results.

Defending the map, the state argues that partisan considerations have long been commonplace in drawing legislative maps and that the current districts are similar to the prior map, which were drawn in 2002 by the federal courts. The state also argues that Whitford lacks standing to challenge the 2010 map because his district has historically been held by Democrats, calling his claim a “subjective preference,” not a judicially cognizable injury. And the state argues that gerrymandering in general is a political question for state legislatures, not courts.

At the trial court level, a three-judge district court sided with Whitford, concluding that the plaintiffs had adequately established unconstitutional partisan gerrymandering. One judge dissented. The state then appealed to the Supreme Court.

This is not the first partisan gerrymandering case brought before the Supreme Court. In 2004 the Court heard Vieth v. Jubelirer, a case challenging partisan gerrymandering in Pennsylvania. The Court in Vieth declined to intervene in the issue. Four justices agreed that partisan gerrymandering is simply not justiciable. Justice Kennedy, who supplied the majority’s fifth vote, wrote that a “workable standard” needs to be offered before the Court should consider the constitutionality of politically motivated redistricting, leaving the door open to hear such cases again.

Whitford claims such a standard — called the “efficiency gap” — now exists and meets Justice Kennedy’s demand for a workable standard. This approach uses mathematical formulas to identify maps that involve “cracking” and “packing” of one party at a significantly higher rate than the other. This formula was proposed by two academics, Nicholas Stephanopoulos and Eric McGee. On the other hand, as Adam Liptak of The New York Times reports, the Republican National Committee has argued, in an amicus brief supporting the state, that the efficiency gap “is a tool that advances the partisan interests of the Democratic Party,” and that the high concentration of Democrats in cities, as opposed to the more even distribution of Republicans in cities and rural areas, is to blame for Democrats lack of electoral power.

A transcript of the oral argument is likely to be released on Tuesday afternoon, and audio of the argument will probably become publicly available on Friday, October 6.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.

Teaching About the Supreme Court

Although the beginning of the Supreme Court’s October Term 2017 is still over a month away, at many law schools, the fall semester is up and running. Here at Chicago-Kent, I’m teaching a course I developed several years ago called “Supreme Court Review.” It’s a terrific course to teach. The subject matter—the past, present, and future of the Supreme Court of the United States—is utterly fascinating. One of the pleasures of the course is that it gives me an opportunity to join the students in an exploration of this mysterious, occasionally even downright strange, yet profoundly consequential institution. Another reason I enjoy teaching the course is that I structure it so that its content changes so much year to year.

The basic organization of the course is always the same. I dedicate the first few—classeswhich are weekly two-hour sessions—to looking at the history of the Supreme Court, its internal operations, and the current roster of justices. (This year, I’m using David M. O’Brien’s Storm Center: The Supreme Court in American Politics—a cornucopia of information, much of it quite entertaining, on the Court—along with a collection of articles on the Court and profiles of individual justices.) The middle part of the course looks back to the last Term of the Court, picking out a handful of the most important cases decided and dedicating an entire class to a deep dive into each decision, often supplemented with audio clips from oral argument and (once they become available in October) audio from opinion announcements. The last third of the course looks at the new Term that, by then, has begun. So in that part of the course we read lower court opinions, briefs, and, when the timing is right, listen to recently uploaded oral arguments in the cases.

It’s a fun, and often unpredictable, ride from start to finish. Last year, for example, there was a terrific collection of cases from the prior Term (including major decisions involving affirmative action, abortion, police searches, and executive power), but there was a rather less interesting upcoming docket. So alongside upcoming cases, we talked about the appointments process (we were in the middle of the Garland blockade strategy of congressional Republicans) and, following the election, the potential impact of President Trump on the Court. This year we have a quite different situation. While last Term was something of a sleeper, the upcoming Term is shaping up to be a blockbuster. So I’ve condensed the middle part of the course and given more space to the last part, when we follow cases that are currently being briefed and argued. I’m looking forward to joining the class on deep dives into the upcoming Supreme Court cases on partisan gerrymandering, Trump’s travel ban, cell phones and privacy, gay rights and religious liberty, among others.

This Day in Supreme Court History—August 24, 1814

On this day in 1814 the Supreme Court was torched by British troops. The United States was at war with Britain in what became known as the War of 1812.

At the time, the Supreme Court chamber was on the first floor of the north wing of the Capitol building. It had been located here, along with the House of Representatives, the Senate, and the Library of Congress, since 1810.The chamber, which Benjamin Henry Latrobe had designed as part of his north wing reconstruction in 1808-1810, was considered an architectural masterpiece because of its semicircular shape and its unusual ceiling of nine lobed vaults.

It was around 8 p.m. on August 24, 1814, and the sun was setting when British troops, fresh from defeating the American militia in Bladensburg, Maryland, reached Washington D.C. The town was partly deserted as many residents fled on foot or horseback upon hearing that the British were coming. The Supreme Court’s law clerks had taken with them important documents, including the Declaration of Independence. By invading Washington, the British forces were seeking to humiliate the Americans and extract revenge for the American torching of the Canadian city of York (now known as Toronto).

British Troops gathered furniture from nearby rooms to create a bonfire in the Supreme Court chamber. They put gunpowder paste on the wood around the doors and windows of the building’s main rooms before igniting them. Within minutes of the troops’ entering the Capitol, flames were shooting from the building’s windows and roof. The British went on to burn various other government buildings, including the executive mansion.

French Minister Louis Serurier watched the Capitol building burn from his temporary residence at the Octagon House. He remarked, “I have never beheld a spectacle more terrible and at the same time more magnificent.”

A severe storm the next day, along with Latrobe’s use of fireproof materials such as sheet iron, marble, sandstone, zinc and copper, prevented the Capitol building from being completely destroyed. It would not be until 1819 that the justices would return to a restored Court chamber. They would hear cases here until 1860, when the Court moved to new chambers upstairs in the Capitol. In 1935 the Court relocated to its current building, across the street from the Capitol.  

This Day in Supreme Court History—August 8, 1793

On this day in 1793, the Supreme Court sent a letter to President George Washington denying his request for the Court’s opinion regarding certain legal issues pertaining to the nation’s relations with France. This letter set a critical precedent for the newly created Court, which the justices have never abandoned: the Court will only issue opinions in cases involving legal disputes between adversarial parties; it will not issue “advisory” opinions.

In requesting legal guidance from the Court, President Washington was following a long line of Anglo-American precedent. Judges of the highest courts in England would offer advisory opinions when the monarch or the House of Lords requested they do so. In America, several state constitutions gave the governor or legislature the right to seek advisory opinions from their states’ supreme courts. Prior to the 1793 letter, Chief Justice John Jay have given Washington his opinion on various legal issues.

Thus there was nothing particularly unusual when, on July 18, 1793, Secretary of State Thomas Jefferson wrote a letter to the Supreme Court in which he explained that the President would like to get the Court’s views on pressing legal issues related to international affairs. The French were at war with Great Britain and Spain, rapidly increased the number and complexity of questions about what actions by the United States abided by its Proclamation of Neutrality. The opinion of the justices “would secure us against errors dangerous to the peace of the US. and their authority ensure the respect of all parties.” He enclosed a list of 29 questions. The first question was: “Do the treaties between the U.S. & France give to France or her citizens a right, when at war with a power with whom the U.S. are at peace, to fit out originally in & from the ports of the U.S., vessels armed for war, with or without commission?”

On July 20, four of the six justices responded that they would need more time to decide the matter. Two of the justices were out of town at the time, and the other were reluctant to decide such an important matter without the full Court. When the Court was able to convene five of its six members, the justices drafted their now famous letter. It read as follows:


We have considered the previous Question stated in a Letter written to us by your Direction, by the Secretary of State, on the 18th of last month.

The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the United States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants”

This Day in Supreme Court History—July 24, 1974

On this day in 1974, the Supreme Court decided United States v. Nixon, a ruling that played a key role in President Richard Nixon’s resignation from office.

The justices issued their decision just sixteen days after hearing oral arguments in the case. The President, they held, could not cite executive privilege as a reason for refusing to release tape recordings that had been subpoenaed in a criminal case related to the Watergate scandal.

Warren Burger, the man Nixon had appointed as Chief Justice, delivered the unanimous Opinion of the Court. (Justice William Rehnquist, who had worked in the Nixon Administration, recused himself in the case.)

“For seventeen minutes he calmly expounded what seemed at times like a patient lesson in American history and government,” wrote Anthony Lewis, the Supreme Court reporter for the New York Times. “All was measured, professional, stately. It was the law, offering us once again that reassurance of constitutional order that we require of it in this turbulent country.”

Although Burger never mentioned the impeachment proceedings against the President, the Court’s decision “adds to the feeling that the last act of Richard Nixon’s drama is at hand,” Lewis noted. “In the White House there is visibly taking hold the shattering realization that this President is going to be impeached.”

The legal events that led to this dramatic moment at the Supreme Court began on March 1, 1974, when, in the course of an investigation initiated by a Special Prosecutor, a grand jury indicted former U.S. Attorney General John Mitchell and six others, all of whom were either on the White House staff or Nixon’s reelection committee. They were charged with obstruction of justice and conspiracy to defraud the country, among other offenses. In April, the prosecutor issued a subpoena to Nixon, whom the grand jury named an unindicted co-conspirator, requesting that he produce tapes, papers, transcripts, and memoranda. Nixon’s lawyer motioned to quash the subpoena, claiming executive privilege immunized the president against such requests. The District Court denied the motion, and the President appealed the decision.

The justices worked together through several drafts to produce an opinion they could all sign on to. According to Bob Woodward and Scott Armstrong’s inside account of the Burger Court, The Brethren, Justice Potter Stewart told his law clerks that a law school professor would have given Burger’s first draft a “D”;  he and other justices had improved it to a “B.”

The heart of the Court’s decision was the rejection of Nixon’s argument that he could not be legally compelled to produce records of “confidential conversations between a President and his close advisors” because to do so “would be inconsistent with the public interest.” The judiciary lacked the authority to reviews a presidential claim of executive privilege, Nixon argued, because to do so would violate the constitutional principle of separation of powers.

The Court rejected this sweeping assertion of executive privilege, noting that separation of powers principles do not prevent the Court from routinely reviewing the acts of the other branches of the federal government. As support for this point, the Court cited Marbury v. Madison’s famous proclamation that “it is emphatically the province and duty of the judicial department to say what the law is.”

To Nixon’s argument that communications between high government officials and their advisers must be protected so that those officials and advisers won’t feel the need to “temper candor,” the Court explained that absent a need to protect military, diplomatic, or national security secrets, the duty of the courts outweighs the interest in confidentiality of Presidential communications.

Sixteen days after the Court’s ruling, Nixon resigned.

This Day in Supreme Court History—July 7, 1986

On this day in 1986, the U.S. Supreme Court rejected a student’s claim that school officials violated his First Amendment rights when they disciplined him for giving a speech filled with sexual innuendo before a school assembly.

The student, Matthew Fraser, decided to enliven his speech in support of a candidate for the student government of Bethel High School (located in Spanaway, Washington) by describing him as “firm in his pants,” “a man who takes his point and pounds it in,” and someone who will “take an issue and nail it to the wall.”

School officials suspended Fraser for three days and told him they were removing his name from a list of candidates for speaker at graduation. They based their punishment on a student handbook rule that prohibited conduct that substantially interferes with education, including “obscene” language. Fraser’s appeal to the school board was unsuccessful, but he had better fortunes in federal court. A federal district court held that the discipline infringed his First Amendment rights and enjoined the school to allow him, if elected, to speak at graduation. The Ninth Circuit Court of Appeals affirmed.

Not amused by Fraser’s creativity was Chief Justice Warren Burger, who was presiding over his final decision day at the Supreme Court (he would retire before the next term began). In his majority opinion in Bethel School District No. 403. v. Fraser, he denied Fraser’s First Amendment claim and overturned the appeals court’s ruling. The speech at issue was “lewd and obscene,” revolving around “an elaborate, graphic, and explicit sexual metaphor,” Burger wrote. Although the Court, in its decision in Tinker v. Des Moines Independent Community School District, had recognized that students retain First Amendment protections when they cross the schoolhouse gate, Burger distinguished Tinker. That case involved a “students’ right to engage in a nondisruptive, passive expression of a political viewpoint.” (Tinker involved a student wearing a black armband in protest of the Vietnam War.) This case, by contrast, involved the “use of vulgar and offensive terms in public discourse,” and the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” The First Amendment, Burger wrote, “does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission.”

Justices Thurgood Marshall and John Paul Stevens dissented. In his brief dissent, Marshall noted that the school had not sufficiently demonstrated that the speech was disruptive to the school’s educational mission. Stevens argued that the school policy did not obviously prohibit Fraser’s speech and the school had not given him sufficient notice that his words would carry such harsh consequences. “A strong presumption in favor of free expression should apply whenever an issue of this kind is arguable,” Stevens concluded.

Week of June 26, 2017 at the Court – End of Term

The biggest news this week was the Supreme Court’s  decision to hear the travel ban cases while partially staying the lower court injunctions. The Court had before it two petitions for certiorari filed by the government — one from the Fourth Circuit and one from the Ninth Circuit, which had both upheld lower courts’ injunctions of the President’s Executive Order. (The Ninth Circuit had vacated the part of the injunction that precluded the government from undertaking a review of how certain decisions about admitting non-citizens to the United States are made.) The Court also had to rule on the government’s requests to stay the lower court injunctions in their entirety. The Court ruled on all of these pending matters on Monday, even issuing a short per curiam opinion explaining its order. First, the Court granted certiorari in both cases and directed that oral argument be scheduled for October. Second, the Court granted the government’s request to stay the lower court injunctions in part. Specifically, it directed that the injunctions remain in effect for anyone who has a “bona fide relationship with a person or entity in the United States,” but it stayed the injunctions with respect to other foreign nationals. Explaining this ruling, the Court said that a “close familial relationship” would be required for individuals to be admitted, and it indicated that the relationship with an “entity” could be satisfied by, for example, a job offer or admission to study at a university. It also said that a nonprofit could not create the necessary relationship simply by accepting a foreign national as a client in order to evade the Executive Order. This holding, of course, leaves many grey areas. Of particular note, the opinion was not explicit as to how the holding should apply to refugees who are working with resettlement agencies in this country but who may not otherwise have relationships with a requisite person or agency.

There are many important features of the Court’s ruling. Here are a few:

  1. The Court was not unanimous. Justice Thomas, joined by Justices Alito and Gorsuch, would have stayed the injunctions altogether, allowing the Executive Order to take full effect. They indicated their belief that the government should ultimately prevail on the merits.
  2. The Court emphasized that the government should be able to complete the review the Executive Order called for before the case is heard in October. And the 90 days of the travel ban will also expire before then, and the suspension of the refugee program soon after.. (The timing of this is a bit complicated. See Leah Litman’s excellent post for more details about this and other administrability issues related to the Court’s action.) As a result, it is quite likely that the case will be moot before the the Supreme Court can decide it. Marty Lederman of the Georgetown University Law Center argues this point forcefully here.
  3. The Supreme Court’s application of the standards for granting a stay was … unorthodox. As Daniel Hemel of the University of Chicago Law School explains, the Court has the luxury of skirting doctrinal niceties. Here, he argues the Court opted for “the spirit of compromise” and preserving “institutional legitimacy over doctrinal consistency.” He goes on: “Most Americans will see an evenhanded decision that commands the support of Democratic and Republican appointees alike.” Others — including Justices Thomas, Alito, and Gorsuch — do not agree.
  4. The opinion is a bit of a Rorshach test, with different people seeing different things in it. President Trump and Attorney General Jeff Sessions declared it a victory. Others on the right praised what they saw as an appropriate reaction to attempts to limit executive power. On the other hand, as detailed in The Los Angeles Times, some saw an “implicit rebuke” to Trump’s claim of “unfettered powers.” And Nihad Awad, executive director of the Council on American-Islamic Relations expressed his concern that the Court’s action “ignores the anti-Muslim bigotry that is at the heart of the travel ban executive orders and will inevitably embolden Islamphobes in the administration.”

Also on Monday, the Supreme Court took the bench for the last time this Term and handed down decisions in three cases in which it had heard oral argument. The most closely watched of these cases was Trinity Lutheran Church v. Comer. In this case, the State of Missouri denied Trinity Lutheran public funds to resurface its preschool’s playground because of a state constitutional provision prohibiting public funds from being given to religious organizations. The Court ruled that excluding religious affiliated organizations from funds available to other charitable organizations is a violation of the First Amendment, and more specifically the free exercise of religion. Chief Justice Roberts wrote in the majority opinion, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, cannot stand.” He was joined by Justices Kennedy, Thomas, Kagan, and — except for a single footnote — by Justices Alito and Gorsuch. Alito and Gorsuch objected to the footnote because they found it too limiting and would have gone much farther in permitting state funds to be given to religious institutions. Justice Breyer wrote separately to concur in the judgment and to emphasize, in his view, the narrowness of the question presented, comparing the health and safety program at issue here with police and fire protection that are uncontroversially provided to religious institutions. Justices Sotomayor, joined by Justice Ginsburg forcefully dissented. In the dissent, which she read from the bench, Sotomayor said that the decision “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” and “[t]he Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Check out The St. Louis Post-Dispatch,  Forbes, and  Fox News for more information on this decision, and the SCOTUSblog symposium, which includes discussion of the implications of this case for future church-state controversies.

In the first of two 5-4 decisions on Monday, California Public Employees Retirement System v. ANZ Securities, Inc., the Court decided that a suit filed by a would-be plaintiff who opts out of a class action is untimely if it is filed after the statute of repose. The National Law Review explains that this case stems from 2008 when the Lehman Brothers filed for bankruptcy. CalPERS filed a lawsuit against the firm more than three years after the purchase of securities at issue. The district court and the court of appeals held that CalPERS’ Section 11 claims were time-barred and yesterday, Justice Kennedy wrote the opinion, joined by the four conservatives, and affirmed. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Pensions & Investments notes that while CalPERS is disappointed with the result, the decision “reiterates the importance of remaining vigilant on behalf of our members in the future securities class-action cases.”

The Court also handed down Davila v. Davis, another 5-4 decision split on ideological lines. In writing for the majority, Justice Thomas explained that ineffective assistance of postconviction counsel does not qualify as cause to excuse a procedural default. In other words, if a criminal defendant fails to raise a claim on appeal because his appellate counsel is ineffective, he cannot raise that claim directly in federal court on habeas review. Late last week, The Atlantic recounted the Court’s decisions from this term relating to the death penalty noting, “…death-penalty opponents achieve[d] some notable victories even as the Court moved further away from abolishing capital punishment.” The article was written before the release of yesterday’s opinion, but Davila kept with the theme that abolishment of the death penalty seems to be out of sight. In light of the significant number of death penalty decisions this Term, SCOTUSblog is hosting a symposium on the Court’s capital punishment cases.

Monday’s Order List contained some news as well. First, the Court announced that it would hear Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission, which addresses whether and to what extent antidiscrimination laws must accommodate religious beliefs. Specifically, the case involves a baker who was held liable for refusing to make a wedding cake for a same-sex couple. Masterpiece Cakeshop had been relisted for Conference repeatedly, leading many to believe that it would be denied, with a dissent from the denial of certiorari filed. At the same time, in Pavan v. Smith, the Court summarily reversed the Arkansas Supreme Court and held that the state must list a same-sex spouse as parent on a birth certificate if it does so for opposite-sex spouses. Justice Gorsuch, joined by Justices Thomas and Alito, dissented. The Court also denied certiorari in Peruta v. California, a Second Amendment case about the right to carry a weapon outside the home. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari.

Three cases in which the Court heard argument this Term were left unresolved. In Hernandez v. Mesa – about a cross-border shooting of a Mexican teenager by an American border guard, the Court remanded for reconsideration in light of its decision in Ziglar v. Abbasi, which arguably narrows the availability of lawsuits against federal officials. And it set two case for reargument next Term, presumably because it was split 4-4 and needs Justice Gorsuch to be the tiebreaker. Those cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond while awaiting deportation hearings, and Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation. Other than Masterpiece Cakeshop, the Court granted cert in a number of additional cases. Those case include Rubin v. Islamic Republic of Iran, in which plaintiffs seek to seize artifacts owned by Iran but on loan to the University of Chicago for decades in order to satisfy a judgment related to a terrorist act, and Christie v. National Collegiate Athletic Association (and a companion case), about federal regulation of state restrictions on sports betting.

There will be much analysis of the past Term and the impact of the new justice in the coming week. But here is one to start with: In its article Neil Gorsuch is Paying Off for Trump So Far, notes that in two of the three decisions handed down yesterday, “Gorsuch’s vote was pivotal, leaving the final tally at five votes to four.” The article goes on to asses Gorsuch first 10-weeks on the Court and where he falls on the ideological spectrum thus far. And ISCOTUS Co-Director Carolyn Shapiro appeared on WTTW’s Chicago Tonight on Monday night to discuss the Court’s recent rulings.