The Week Ahead – April 10, 2017

As of this morning, with the swearing in of Justice Neil Gorsuch, the Supreme Court is back to its full complement of nine justices. As The Los Angeles Times reports, Gorsuch had two swearing-in ceremonies. The first was a private ceremony at the Supreme Court, at which Chief Justice Roberts presided and, Mark Walsh of SCOTUSblog explains, at which Gorsuch took the constitutional oath. The second ceremony was in the White House Rose Garden, and Justice Kennedy — for whom Gorsuch clerked — administered the judicial oath. In a longer piece, Mark Walsh explains the difference between the oaths provides some background on the history of the oaths taken by Supreme Court justices.

Justice Gorsuch will not hear his first arguments until next week. The first cases that he will hear on the Court involve the legality of the exclusion of churches from state funding in Trinity Lutheran Church v. Comer, the Sixth Amendment, defendant’s rights, and inadequate counsel, the revocation of a naturalized citizen’s citizenship, and the proper timing of class action securities lawsuits. Check out Fox News for more details on these cases. USA Today and the Washington Post also provided articles on Gorsuch’s likely impact that will start next week. Gorsuch is not likely to upset the ideological balance of the court given the previous occupant of his seat was Justice Scalia, but he will bring the Court back in full swing now that there are nine justices in place and no worries of deadlocked decisions.

Justice Gorsuch does not even have until next week to get used to his new job. The justices meet for their next Conference on Thursday. Among the duties of the most junior justice is taking notes at Conference and — even more prosaically — answering the door. As Justice Kagan explained — to Gorsuch himself at a public interview last summer — this can happen because “you know, one of the justices forgot his glasses. The other justice forgot her cup of coffee.” And as Kagan also explained, the junior justice sits on the cafeteria committee.

There will also be serious business. As usual, SCOTUSblog identifies petitions worth watching that are listed for the next Conference. One such case is for a writ of certiorari is Dot Foods, Inc v. Department of Revenue for the State of Washington. Law360 describes the case, in which Dot Foods argues its due process rights were violated when it was stripped of its tax-exempt status due to a retroactive application of a Washington statutory amendment that regulated in state sales and commerce of out of state businesses.

Another case worth watching is Carpenter v. United States. As CATO Institute explains, this case involves the constitutionality of warrantless search and seizure of cell phone records under the Fourth Amendment. The plaintiffs were convicted of armed robberies and are appealing their conviction arguing that it violated the Fourth Amendment for the government to  use the cell phone records for information about their whereabouts.

Another case distributed for Thursday’s conference is Mickelson v. County of Ramsey. The issue in this case is whether it is a due process violation for the government to confiscate money from innocent people due to an arrest, and make them prove they are entitled to have it back. Adam Liptak of  The New York Times explains that Corey Statham was arrested and had his charges dismissed, but the county kept a portion of his confiscated money as a “booking fee.” A number of states bill people merely for being arrested and held in jail, and Statham’s attorney Michael A. Carvin argues that, “providing a profit motive to make arrests gives officers an incentive to make improper arrests.”  The issues in this case are similar (though not identical) to the civil forfeiture issues Justice Thomas recently highlighted in an opinion respecting the denial of certiorari.

Finally, the Supreme Court will be considering whether to grant cert in the repeatedly relisted Masterpiece Cake Shop, Ltd. v. Colorado Commission on Civil Rights, which addresses whether an antidiscrimination law can be constitutionally applied to a baker who makes wedding cakes but refuses to do so for same-sex couples for religious reasons. This is one case in which Gorsuch’s arrival could make a substantial difference, as CNN reports here.

Weekly Roundup – April 7, 2017

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

The big news this week involved the Senate’s action on Judge Neil Gorsuch’s nomination to replace Justice Scalia. This morning, the Senate confirmed Gorsuch on a 55-45 vote. Three Democrats (Joe Donnelley of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia) joined all Republicans in voting yes. Roll Call reports that this voting breakdown means that Gorsuch received the smallest number of opposition party votes of anyone on the Court. Presumably, Gorsuch will be sworn in immediately and will join the Court next week to discuss cert petitions at Conference and on April 17 to hear oral argument. (The Court’s calendar is here.)

The Gorsuch nomination engendered a major procedural upheaval in the Senate — the so-called nuclear option. As The New York Times explained, after more than 41 Democrats voted against ending debate on the nomination — thus successfully maintaining a filibuster, which ordinarily can be ended only with at least 60 votes — the Republican-controlled Senate changed its rules so that only 51 votes are needed to end debate on a SCOTUS nomination. Although Democrats had made a similar rules-change during the Obama presidency for presidential executive-branch appointees and lower court judges, they had pointedly left the filibuster intact for SCOTUS nominations. On Thursday, on a straight party-line vote, the Republicans eliminated that supermajority requirement.

Not surprisingly, numerous commentators have weighed in on the likely effects of the Senate’s action on the Supreme Court going forward. ISCOTUS co-director Carolyn Shapiro argues that in the long run, eliminating the filibuster may allow Democrats to appoint more liberal justices. Others, like Scott Lemieux, predict an increasingly large conservative majority on SCOTUS. Jonathan Adler argues that because the absence of the filibuster will make it harder to stop a nomination, incentives to obstruct will decrease and presidents of both parties will be freer to nominate justices with less traditional resumes.

Although the Supreme Court did not hear argument this week, it did hand down two unanimous decisions on Monday. In Chief Justice Robert’s Dean v. United States opinion, the Court decided that a judge, when calculating the sentence for a predicate offense, does not have to ignore the fact that the defendant will serve mandatory minimums imposed under 18 U.S.C. § 924(c). The Court reversed and remanded a decision from the Eighth Circuit Court of Appeals that Levon Dean’s sentence of more than 33 years was reasonable. The Court reasoned that a) “sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence” and b) § 924(c) does not specify how long the sentences should be for predicate offenses nor does it specify what courts can consider when determining those sentences. Above the Law explores what prison time accomplishes and “when is enough enough?”

In McLane Co., Inc. v. Equal Employment Opportunity Commission, the Court held that a district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. The Court reasoned three main conclusions: (1) reviewing for abuse of discretion is a “longstanding practice” of appeals courts, (2) district judges’ expertise is well suited to decide whether evidence sought is relevant to a specific charge or whether a subpoena is unduly burdensome in light of circumstances, and (3) deferential review will streamline the litigation process by freeing appellate courts from the obligation of reconsidering evidence and facts that district courts have already considered. The National Law Review discusses the case in more detail.

The Court also granted certiorari in two cases: Jesner v. Arab Bank, PLC and Ayestas v. Davis. The Court will likely revisit its 2013 Kiobel v. Royal Dutch Petroleum decision in order to decide if, under the Alien Tort Statute, corporations can be held liable for human rights violations, the New York Law Journal reports. In Ayestas, the Jurist explains that the Court will address a defendant’s right to federal funding for an expert for a habeas petition.


Gaming Out the Nuclear Option

Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Today, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I’m not alone in thinking about unintended consequences here. Nate Silver of has an extensive piece today about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

In contrast, the Democratic nominees during this timeframe – Ginsburg, Breyer, Sotomayor, and Kagan – were all seen as varying degrees of moderate liberal at the time they were nominated. You don’t have to take my word for this. Relying on data from the venerable Supreme Court Compendium, University of Chicago Law Professor Geoffrey Stone has ranked the nominees (through Kagan) by perceived intensity of ideology at the time of nomination. Except for Souter and Kennedy, all Republican nominees in the past 35 years have more intense ideological preferences than all Democratic nominees in the same timeframe.

And nominating a moderate did not help President Obama in the fight over the vacancy left by Justice Scalia’s death. President Obama’s pick, Judge Merrick Garland, was anything but an extreme nominee. Indeed, only a week before his nomination, Senator Orrin Hatch predicted that Obama would not nominate Garland, whom Hatch had previously praised as worthy of bipartisan support, because he was too moderate, and some progressive groups were disappointed by the nomination. Given that context, the Republican refusal to even consider Garland was and remains particularly infuriating to Democrats. As a result, one lesson Democrats might reasonably draw from the Garland nomination is that there is no Democratic nominee moderate enough (or old enough – Garland was in his 60s, quite old for a lifetime appointment) to be confirmed by a Republican Senate.[1] This lesson may resonate all the more because the Garland nomination was the first since before Brown v. Board of Education was decided in 1954 in which a Democratic president’s nominee was made to a Republican-controlled Senate. In other words, there is no history of a Republican-controlled Senate confirming moderate Democratic nominees.

Contrast this Republican treatment of Garland to the treatment Democratic- controlled Senates have given Republican SCOTUS nominees. Since 1954, Democratic Senates have confirmed numerous Republican appointees, including the conservative Burger, Rehnquist (when appointed as Associate Justice), Kennedy, and Thomas. Democratic Senates also confirmed Souter, Stevens, Powell, Blackmun, and President Eisenhower’s four post-­Brown nominees. That’s twelve confirmations. And until today, the Democrats have never filibustered a Republican nominee. Republicans like to complain about Bork, who was narrowly defeated by a Democratic Senate. But as this list makes clear, Bork’s defeat was unusual. And it happened because he was himself unusual in his extreme positions and rigid readings of the Constitution.

Finally, it’s worth noting just how rare Democratic Supreme Court appointees have been in the last half-century. In 1967, President Johnson successfully nominated Thurgood Marshall to the Supreme Court. No justice was nominated by a Democratic president for another 26 years, until President Clinton nominated Justice Ginsburg in 1993, followed by Justice Breyer in 1994. The most recent two Justices to join the Court – Justices Sotomayor and Kagan – were appointed by President Obama. That is it – five appointments in 50 years. In contrast, during the same time period, Republican presidents successfully appointed eleven Justices and additionally successfully elevated Rehnquist from Associate to Chief Justice.[2] With the pending confirmation of Justice Gorsuch, the Republican tally will increase to twelve – with Democrats still steaming over the treatment of Garland.

The point here is that despite Republican complaints that Democrats have been waging “scorched-earth ideological wars” over judicial nominees, at least during the past 35 years, Republicans have been more aggressive in trying to appoint ideologically extreme Supreme Court justices. Pushing such appointments – and eliminating the filibuster to get the latest one through – while refusing to even consider a moderate nominee by President Obama removes many of the incentives for Democrats to nominate moderates when they control both the Senate and the Presidency. When it comes to selecting new members of the Supreme Court, we should expect future Democratic presidents and Democratic-controlled Senates to act more like Republicans have been acting, resulting in more liberal appointments. (It also may, for the first time, lead Democratic voters to focus as much on the Supreme Court as Republican voters do, although this may be wishful thinking.) But the bottom line is that in the long run, Republicans may live to regret the nuclear option.

[1] There are of course other factors here. The fact that a Democratic nominee to replace Scalia would have a dramatic effect on the overall ideological balance of the Court surely played a role in encouraging Republican opposition. And Republicans also argue, for example, that some Democrats had themselves proposed a moratorium on SCOTUS nominations during a presidential election season.

[2] The Republican-appointed justices are Burger, Blackmun, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Roberts, and Alito. We can also go back to Brown, since that is a timeframe I use elsewhere in this post. Since Brown, and not including Gorsuch, Republican presidents have successfully nominated fifteen justices, and Democrats have successfully nominated eight. The additional Republican appointees are Harlan, Brennan, Whittaker, and Stewart, while the Democratic appointees are White, Goldberg and Fortas.

Should Democrats Filibuster the Gorsuch Nomination? Pro & Con

Here are the arguments for why Senate Democrats should filibuster:

  1. Garland. They need to protest what Republicans did to Judge Garland’s nomination last year. Democrats need to take extraordinary action to make it clear the extreme wrong of the Republican refusal to hold hearings.
  2. Gorsuch. Judge Gorsuch will be such a conservative justice that Democrats need to do all they can to try to stop his nomination.
  3. The Base. The progressive base and liberal pressure groups are energized and are demanding that Democratic senators do all they can to stop the nomination. Even if a filibuster is unlikely to prevent Gorsuch from taking his seat, it could be seen as a partial victory and might further energize the base for future battles.
  4. Long Game. The most likely consequence of a filibuster—i.e., the “nuclear option” of a Senate rules change that eliminates the filibuster for Supreme Court nominations—is not as bad as it sounds. A straight majority vote process might even allow a future Democratic-controlled Senate to get a more liberal justice onto the Court.

And here are the arguments for why Senate Democrats should not filibuster:

  1. Futility. The Republicans have the votes to change the rules, eliminate the filibuster, and put Gorsuch on the Court. Why not focus on battles that can be won?
  2. The Next Justice. Gorsuch is conservative but widely respected and clearly qualified. And he is taking the seat that had been occupied by the conservative Justice Scalia. Why not preserve the filibuster for a future court battle in which the nominee might be more problematic (less qualified and/or more extreme) and/or the current ideological balance of the Court will be at stake?

The Week Ahead – April 3, 2017

As ISCOTUSnow noted earlier today, this is showdown week for the Gorsuch nomination. Since this morning’s post, there have been two big developments. First, as expected, the Senate Judiciary Committee voted in favor of confirming Gorsuch on a party-line vote. Second, as was less certain, enough Democrats announced their intention to vote against cloture, which is the procedure that ends a filibuster. As ABC News reports, four Democrats today (Chris Coons, Dianne Feinstein, Patrick Leahy, and Mark Warner) announced their intention to against cloture, bringing the total to the 41 necessary to maintain a filibuster. (Since then, Ben Cardin (MD) has also said that he wil vote against cloture.) In the past few days, three Democrats — Joe Donnelley (IN), Heidi Heitkamp (ND), and Joe Manchin (WV), all from states that Trump won — announced that they will vote for cloture.

The focus now shifts to the full Senate. Senate Majority Leader McConnell has announced that the Senate will vote on the Gorsuch nomination on Friday. And he has reiterated his threat to invoke the “nuclear option,” eliminating the supermajority needed to end debate and proceed to a merits vote for Supreme Court nominees. Making good on this threat would require the votes of 51 Senators, however, meaning that McConnell can afford only one defection from his caucus. It remains to be seen if he will be successful. Ted Barrett, in an opinion piece for CNN written before today’s events, explains that

“The Senate may be a week away from turning into the House. Senators from each party . . . worry that by getting rid of the 60-vote threshold to defeat a filibuster on the nomination, the Senate is one step away from turning into a mirror-image of the House — a chamber where bipartisanship isn’t needed to pass bills and whichever party is in the majority can govern with little or no input from the minority party.”

There has been much commentary about the wisdom, or lack thereof, of a filibuster by the Democrats (see our earlier post for some links), but today there is also some interesting commentary about how the Democrats got to this point. According to a New York Times op-ed by a former staffer to now-retired Senator Harry Reid, who served as both majority and minority leader for the Democrats, the Democratic Senators went into the confirmation hearing with an open mind but were offended and angered by Gorsuch’s demeanor and — more so — his refusal to answer even the most uncontroversial questions. The Victoria Bassetti of the Brennan Center makes a similar argument in more detail.

The Supreme Court has no oral arguments scheduled this week, but it issued orders and opinions today, Monday, April 3. In the first of two grants, Jesner v. Arab Bank, PLC, the Court will consider the extent to which the Alien Tort Claims Act imposes liability on corporations. (The defendant bank in Jesner is accused of helping to finance terrorist activity.) Ayestas v. Davis, the second case granted today, focuses on federal courts’ obligations to provide resources to habeas petitioners who need help developing their ineffective assistance of counsel claims.

In the first of two opinions issued today, Justice Sotomayor wrote for seven justices in McLane v. EEOC, ruling that appellate review of district court determinations whether to enforce or quash EEOC subpoenas is based on abuse of discretion, not de novo review. Justice Ginsburg concurred in part and dissented in part. And in Dean v. United States, Chief Justice Roberts wrote for a unanimous Court, holding that a district court judge may take into account mandatory sentences that must run consecutive to other sentences in exercising sentencing discretion.

Finally, Justice Sonia Sotomayor will speak at two events in upstate New York on Tuesday, April 4. First, she will speak at the Schacht Fine Arts Center on the Troy campus of the Sage Colleges in Troy, New York. The event is part of Centennial Celebration of the Sage Colleges, and will feature a question and answer discussion with Justice Sotomayor. Later on Tuesday, she will headline a speaking event at the University at Albany – State University of New York. She will be discussing her 2013 best-selling autobiography My Beloved World and the event will also include a question and answer discussion.


This Day in Supreme Court History—April 3, 1962

On this day in 1962, Engel v. Vitale, a seminal religious liberty case, was argued at the Supreme Court.

In 1951, the Board of Regents for the State of New York authorized a prayer for recitation at the start of each school day. The prayer read: “Almighty God, we acknowledge our dependence upon Thee, and beg Thy blessings upon us, our teachers, and our country.” Students were allowed to opt out of participating.

Five parents of school children—two Jews, an agnostic, a Unitarian, and an Ethical Culturalist—sued the head of the board of education in New Hyde Park, New York, arguing that the prayer violated the First Amendment. The lead plaintiff was Steven Engel, one of the Jewish parents.

Arguing on behalf of the plaintiffs at the Supreme Court, attorney William Butler insisted the prayer doubly violated both the religious liberty provisions of the First Amendment. It violated the Establishment Clause, because the prayer expressed a preference for certain religious beliefs. And it violated the Free Exercise Clause, because it coerced children to participate in a religious proceeding.

Butler relied in particular on Justice Felix Frankfurter’s concurrence in McCollum v. Board of Education, a seminal 1948 Establishment Clause case. The lawyer directly addressed Frankfurter, who was still on the bench when the Court heard McCollum, noting that Engel’s claim relied heavily on the Justice’s “brilliant dissertation” in the McCollum decision in which he wrote, “the law of imitation operates and non-conformity is not an outstanding characteristic of children.”

“So far as I’m concerned, you may assume I remember it,” the Justice responded, eliciting laughter from the audience.

“Would the little child or would Johnny leave the classroom or would the parent be expected to ask the school system to excuse his child or who may be singled out as a non-conformist?” Butler asked. “And I must adopt Mr. Justice Frankfurter’s thesis in McCollum that the law of imitation applies and little children want to be with other little children.”

Butler explained that most of his five clients were religious and not opposed to prayer, but that it should not be incorporated into a public school system. Such incorporation is “the beginning of the end of religious freedom,” he said.

Justice William O. Douglas noted that when the justices enter the Supreme Court courtroom, there is an announcement, “God save the United States.” “Is that case on its way here?” the Justice asked Butler. “If it is, I’m glad I’m not bringing it,” Butler replied.

Butler also borrowed from language in Chief Justice Earl Warren’s opinion in Brown v. Board of Education, where Warren wrote that “to separate children from one another solely because of their color may leave an indelible mark upon that child for the rest of his life.” Butler argued religious separation would also be an “unfair separation” which could leave an indelible mark on a child’s mind.

To his opponents’ argument that his clients were a minority trying to impose its views on the majority, Butler explained: “Our answer to that is simple. We say that the Constitution, the very purpose of the Constitution, is to protect the minority against the majority. It’s to protect the weak against the strong in matters of keeping separate forever the functions of the civil and the religious.”

To Justice Potter Stewart observation that the prayer did not specifically address a Christian God, Butler replied that the Board of Regents’ decision about the prayer referred the God as “him,” and Judaism does not necessarily believe in a male god. “It believes that God is coming,” he said. “Now what form that God is going to take may be a different matter.” Butler also argued the prayer excludes Orthodox Jews because such Jews pray only in synagogues, only with yamakas on, only in Hebrew and some pray only facing east.

Stewart also asked Butler whether he objects to the recitation of the National Anthem with the words “Under God.” Butler said he does not object to the recitation of the anthem in schools because it is essentially a “political utterance” and not a religious one.    

Representing the Board of Education, attorney Bertram Daiker said the district received only one request since 1958 for a student to be excused from participation in the prayer, and no requests to be excused from a classroom. The Declaration of Independence has four references to “the Creator,” and the Supreme Court had “said many times that ‘we are essentially a religious people,’” he said.

Chief Justice Warren challenged Daiker by asking whether he would approve of the Court’s requiring every litigant before it to deliver the prayer in question. Daiker said he would not approve because such a compulsion would be unconstitutional. Justice Hugo Black pressed him on whether the children’s enrollment and attendance were compulsory. Daiker countered that most of the district’s parents know their children can opt out of the prayer.

Justice Warren stated that Butler’s clients object to the recitation of a prayer in schools “where they will be indoctrinated with the prayer as a matter of training and where they will be held up to contempt or ridicule if they or their parents should want them to be excused and pointed out as being different from the rest of the children.” Daiker responded, stating the prayer is not the teaching of religion, but merely “acknowledging publicly that we have a god.”

Also defending the law at the High Court was Porter Chandler, who represented sixteen parents who supported the prayer. He argued his clients “feel very strongly that it is a deprivation of their children’s right to a share in our national heritage and that it is a compulsory rewriting of our history in the fashion of George Orwell’s 1984 to do what these petitioners are now seeking to do.”  Chandler also stated that states in at least half of country included daily prayers, Bible readings, or hymns in their public schools.

On June 25, 1962, the Court ruled 6-1 in favor of Engel, holding that the state-mandated prayer, despite its nondenominational character and the possibility of a student opt-out, violated the First Amendment. Justices White and Frankfurter did not take part in the decision; Justice Stewart dissented.


The Gorsuch Report—Going Nuclear?

It’s showdown week for the Gorsuch nomination. Today, the Senate Judiciary Committee debates and votes on the nominee. Democratic committee members scored a minor victory after the hearings had concluded when they were able to head off the effort of Republican committee members to have a quick vote on Gorsuch. The Democrats asked for more time so they could receive and review written responses to questions posed by the senators. The Committee vote on Gorsuch today is expected to fall along party lines (11 Republicans in support; 9 Democrats opposed).

Then the real fireworks are expected when the nomination comes to the full Senate.

Senate Majority Leader Mitch McConnell has announced that the Senate will vote on the Gorsuch nomination by the end of the week, in advance of Congress’s two-week recess. The first step to get to a Friday vote will be for McConnell to move for a full-Senate vote for cloture (i.e., to end debate and bring the nomination to a Senate vote). Under current rules, invoking cloture for a Supreme Court nominee requires 60 votes.

Some Democrats, led by Senate minority leader Charles Schumer, have vowed to filibuster to prevent a vote. To pull this off, Democrats need to secure at least 40 of their 48 senators to vote against moving the nomination to a full Senate vote.

Do the Democrats have the votes? It’s not clear. So far, three Senate Democrats—Heidi Heitkamp (North Dakota), Joe Manchin (West Virginia), and Joe Donnelly (Indiana)—have said they would vote for Gorsuch. (Each represents a state Trump won in November and each is up for re-election next year.) Thirty-six have said they support a filibuster. It’s going to be a close call.

If the Democrats do successfully filibuster the Gorsuch vote, McConnell has made clear that he will use the so-called “nuclear option,” meaning that Republicans will change the Senate rules so that filibusters are no longer allowed for Supreme Court nomination votes. (In 2013, a Democratic-controlled Senate did away with filibusters for lower court nominees.)

What are the Democrats hoping to achieve? Some have suggested that the collapse of the Republican effort to rewrite the Affordable Care Act has emboldened the Democrats, and their leaders are trying to take advantage of the moment to show their unity and strength. Liberal pressure groups are demanding that Democratic senators take a stand. Perhaps some even believe they can win this battle. Senator Schumer has said that he believes Republicans can’t get the sixty votes required for cloture.

Is this a wise strategy for the Democrats? Harvard’s Cass R. Sunstein thinks not. “Two wrongs do not make a right,” he writes in his BloombergView column. “The system for confirming Supreme Court justices is badly broken, and if you insist that it’s all about power, it will stay that way.” Sunstein’s colleague Noah Feldman finds more strategic grounds for the same conclusion: “Neil Gorsuch is no progressive. But liberals could do worse—much worse. And it’s the Senate Democrats’ job to do what they can to reduce the risk of an unqualified, radical Trump nominee in the future.” In the Daily Beast Eric Segall also argues against the filibuster; Rick Hasen does the same in his Election Law Blog. For a sampling of the case for the filibuster, see Joshua Holland writing in the Nation and Bill Scher in Politico.


Week in Review – March 31, 2017

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

In the first of two opinions issued this week, the Supreme Court overturned a death penalty ruling on Tuesday. In Moore v. Texas, Bobby James Moore was sentenced to death for murdering a store clerk during a robbery, but he claimed that he could not be executed because he is intellectually disabled. (The Court has previously held, in Atkins v. Virginia, that the Eighth Amendment prohibits executing the intellectually disabled.) At issue in this case was whether Texas needed to update its standards for determining intellectual disability from the 1992 factors it relied on. In an opinion by Justice Ginsburg, joined by Justices Breyer, Kagan, Kennedy, and Sotomayor, the Court held that although states have “flexibility” in determining how to identify intellectual disability and did not have to constantly update its approach to reflect current expert understandings, Texas could not rely on such “an outdated understanding of mental disability.” Chief Justice John Roberts dissented, joined by Justices Alito and Thomas. The dissent argued that the majority of the Court “crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.” David Savage of The LA Times and Robert Barnes of the The Washington Post analyze the opinions and provide some additional factual background.

On Wednesday, the Court unanimously vacated a lower court decision in Expressions Hair Design v. Schneiderman. USA Today reports the Court held that laws restricting merchants from advertising credit card surcharges (or cash discounts) implicate the First Amendment right of free speech, and it remanded for the New York state courts to determine if those rights were in fact violated. Although the holding was unanimous, only five Justices joined the opinion for the Court. Justice Breyer concurred in the judgment, as did Justice Sotomayor, joined by Justice Alito in a very unusual pairing.

On Monday, the Court heard arguments in TC Heartland v. Kraft Foods Group Brands. Adam Liptak of The New York Times explains that case boils down to an issue of “forum shopping” by plaintiffs in order to gain the upper hand in patent lawsuits. For example, over 40% of patent lawsuits are filed in a federal court in Texas, where “patent trolls” (those that buy up patents in order to sue for royalties and infringement) frequently file suit due to the plaintiff-friendly outcomes. Liptak describes the argument, during which Justice Kagan suggesed that the lower courts, and in particular the Federal Circuit, have not been following Supreme Court precedent, but that she seemed “surprisingly sanguine about this state of affairs.”

Also on Monday, the Court heard arguments in multiple cases regarding the ability of religious-affiliated organizations, such as hospitals, to claim exemption in guaranteeing employee pensions under the Employee Retirement Income Security Act (ERISA). As the Economist notes, Churches are exempted from ERISA to prevent possible issues of separation of church and state. The ACLU filed an amicus brief arguing that it would be “impermissible religious favoritism,” to “allow hospitals and other religious affiliated organizations that are not houses of worship to arrogate to themselves the legal status of a church.” (ISCOTUSnow’s weekly preview provides more information on the other arguments the Court heard this week.)

Earlier this week ISCOTUS co-director Christopher Schmidt provided his commentary on the Gorsuch confirmation in a post entitled Why the Democrats Lost the Gorsuch Hearings, and check back soon for a new edition of The Gorsuch Report on ISCOTUSnow.

Why the Democrats Lost the Gorsuch Hearings

Judge Neil Gorsuch is headed toward Senate confirmation. Ever since the President made the nomination, it has been hard to imagine another outcome. Short of some scandalous skeletons emerging from Judge Gorsuch’s closet—a closet that, by all accounts, appears safely devoid of anything of much interest—this is a loss Democrats expected. The Republicans have the votes to put Gorsuch on the Court (although they may need to invoke the “nuclear option” and eliminate the filibuster to do so). Gorsuch’s strong performance in the hearings only gave them more reasons to support him.

Knowing this was a loss they were going to have to absorb, Democrats still hoped to at least score some political points during the hearings. It was a highly visible opportunity to advance their concerns with the politics surrounding the nomination process and the nominee’s conservative jurisprudence. Yet here too, I think the Democratic efforts should be judged a loss. They were unable to take advantage of the hearings to advance their agenda in any meaningful way.

Short of actually blocking the appointment of Gorsuch to the Supreme Court, here are three goals that Democrats sought to advance at the hearings:

First, they wanted to use the nomination to return the nation’s attention to the injustice of last year’s Republican blockade of the nomination of Merrick Garland.

Second, they sought to poke holes in the whole judges-as-neutral-umpires safety shield that nominees have used to avoid answering substantive questions about how they approach those hard cases where value-informed judgment is required. Although both liberal and conservative nominees have used this strategy, conservatives, as my colleague Carolyn Shapiro has shown, have found ways to deploy it with greater effect.

And third, Democrats hoped to use the hearings to challenge what they view as fundamental flaws of originalism, the theory of legal interpretation that Justice Scalia famously advocated and that Judge Gorsuch has embraced.

Getting any leverage out of any of these three lines of attack proved harder than Democrats hoped, however. They tried, but came up short on each of these goals.

The Garland Taint

Using the ghost of Judge Garland as a weapon to attack Judge Gorsuch and Republicans proved hard to do effectively, in part because expectations among some on the left were unrealistically high. Some liberals went so far as to argue that to protest the Republican Senate leadership’s refusal to hold hearings on Garland, whom President Obama nominated soon after Justice Scalia’s death, there should be no hearings or that Democrats should refuse to participate or that they should categorically reject any Trump nominee. One need not defend what Republicans did to believe such responses strategically ill-advised. Democrats had no ability to prevent the hearing from taking place. And refusing to participate was never a wise move. American politics run on short memory, and leveraging a past norm violation as justification for a new one might satisfy a desire for retribution, but it makes for a weak case beyond those who are already on your team.

I also think that the effort to use the Garland episode to justify opposition to Gorsuch missed a key point. The legitimacy of the Republican strategy was adjudicated in the only way that these kinds of nonjusticiable constitutional disputes (the courts were not about to weigh in on the issue) can be: through the political process. We had an election. Although some Democrats sought to make the Republican blockade a decisive election issue, they failed. They failed in those Senate races in which they targeted Republican blockaders. They failed in the presidential race, where Hillary Clinton saw little advantage in making it a major issue of her campaign. It was fine for the Democrats to keep the issue in the air at the hearings. But enough Americans had basically accepted that right or wrong, dirty pool or not, the Republicans had won this one and it was time to move on

(One caveat to this reading of the 2016 election: Since most polls had Clinton winning, there was likely less mobilized opposition to the Republicans on this issue than there would have been otherwise. Most assumed it wouldn’t matter in the end. If it had looked like Clinton was going to lose, I assume Democrats would have made it a bigger campaign issue.)

Neutral Umpires

Democrats tried to move Gorsuch off his carefully refined talking points about there being no Republican judges or Democrat judges, but only judges. They wanted to force him to concede that hard cases demand judgment and that judgment necessarily draws on a judge’s view of the world and values. They wanted to talk about Gorsuch’s values because they believed a more direct discussion about his conservative ideology would allow them to question whether in fact the American people wanted someone with his particular set of conservative commitments. This was a highly difficult, perhaps impossible, task. Robert Bork was willing to engage with these kinds of challenges, of course, but we all know how that turned out. Gorsuch had been carefully prepared to avoid that fate. He made Democratic efforts particularly ineffective because he was so uncompromising in hewing to the neutral-umpire line and because he was highly skilled at pulling it off. (Perhaps not quite as smooth and persuasive as Chief Justice Roberts had been at his confirmation hearings, but Roberts set an impossibly high bar.)

The Democrats also lacked sufficient ammunition for this line of attack. They had a handful of cases in which Gorsuch’s reading of the law led to him outcomes that the Democrats saw as unjust. The most discussed example was the so-called “frozen trucker” case. But Gorsuch was able to offer an effective two-pronged defense, indicating that he sympathized with the victims in these cases but then claiming that he was just doing what the law demanded. The law made him do it. He was just applying the law, neutrally. Since Democrats were unable to make a strong enough case that Gorsuch in fact injected his own values into his reading of the law (as judges inevitably do in cases where the law does not offer a clear answer), he emerged from these dialogues largely unscathed, and perhaps even strengthened, since he was able to portray himself as someone who is willing to follow the law even when he does not like the outcome it gives him.

Attacking Originalism

Democrats also sought to go after Gorsuch’s self-declared commitment to originalism as a theory of constitutional interpretation. Advocates of this theory believe that the Constitution should be read to mean what it meant at the time the American people ratified the text.

Originalism is vulnerable to challenge. Beneath its common sense, bumper-sticker appeal (the Constitution means now what it always meant—end of story) and its hard-to-challenge reverence for the Founding Fathers, originalism relies on potentially unattractive assumptions about American constitutionalism. Do we really want to be ruled by the “dead hand” of the past? Originalism also produces some distinctly unappealing results. This is originalism’s “Brown problem.” Originalism gets Brown v. Board of Education wrong: relying on the original meaning of the Fourteenth Amendment would allow for racial segregation in schools. And no one wants to be on the wrong side of that case. Even Judge Gorsuch, who refused to agree or disagree with pretty much any case the Court has decided, eventually went on record as saying that Brown was rightly decided.

The challenge of this angle of attack is that it quickly gets into the weeds of legal theory and the deep recesses of constitutional history. Legal commentators lament the Democrat’s unwillingness to ask the kinds of follow-up questions that might expose the weaknesses of originalism, but this assumes that these kinds of follow-ups would actually serve a purpose in the context of the confirmation hearings. Do the American people really want to hear a discussion about the difficulties of selecting the appropriate level of generality to determine constitutional meaning? Do the senators have the knowledge or inclination to engage 18th-century debates over the meaning of due process? The Democrats assumed, probably correctly, that these were rabbit holes they did not want to go down. So they did not really challenge Gorsuch to squarely confront the weaknesses of his chosen method of constitutional interpretation. Constitutional law professors were throwing their pocket Constitutions at their TVs (or computers or smartphones), but originalism emerged from these hearings no worse for wear.

Although the Democrats did not, in the end, get as much out of the hearings as they had hoped to, it is important to note one important achievement of the hearings, although one that transcends partisan politics and should be counted as a win for the American constitutional system. The hearings offered four days of discussion about the value of the rule of law and the independent judiciary. On this point, Democratic and Republican senators and the nominee himself were all on the same page. It’s an important point to be heard, never more so than today.

The Week Ahead – March 27, 2017

The Court has oral arguments in eight cases scheduled for this week. On Monday, the Court will hear arguments in four cases, three of which are consolidated. The three consolidated cases of Dignity Health v. Rollins, Advocate Health Care Network v. Stapleton, and Saint Peter’s Healthcare System v. Kaplan present the issue of whether the Employee Retirement Income Security Act of 1974’s (ERISA) church-plan exemption applies to plans operated by organizations, such as hospitals, that are affiliated with churches although not themselves churches.

The defendants in the cases are all religiously affiliated operators of hospitals whose employees sued, alleging that the plans do not qualify for the exemption. Advocate Health Care Network is a ministry of the Lutheran and Church of Christ denominations that operates Illinois hospitals. Saint Peter’s Healthcare System is a Catholic ministry that operates a New Jersey hospital. Dignity Health operates several California hospitals sponsored by nuns. The federal agencies that administer ERISA (the Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation) have treated the pension plans of such hospitals as exempt from ERISA for more than 30 years.

The exemption from ERISA depends on a definition of “church plan” in the Act. ERISA, as originally drafted, exempted any plan “established and maintained for its employees by a church.” Amendments in 1980 state that a “plan established and maintained for its employees … by a church … includes a plan maintained by an organization … controlled by or associated with a church.” The Atlantic discusses this case in depth, here.

On Monday, the Court also will hear arguments in TC Heartland LLC v. Kraft Foods Group Brands LLC, which analyzes whether the patent venue statute, 28 U.S.C. § 1400(b), providing that patent infringement actions “may be brought in the judicial district where the defendant resides[,]” may be supplemented by 28 U.S.C. § 1391, which contains a subsection (c) that, in some cases, deems a corporate entity to reside in multiple judicial districts. Kraft Foods sued in Delaware, alleging that TC Heartland had infringed Kraft’s patent for a “liquid water enhancer” – a product that allows people to add flavoring to plain water.  Heartland sought to transfer the case to Indiana, its state of incorporation, arguing that Section 1400 does not authorize the case to be heard in a Delaware forum. SCOTUSblog explains that the case allow the Court to focus on forum shopping so extreme in patent ligitation that a single judge in  Marshall, Texas has been was assigned approximately one quarter of the nation’s patent cases in the last three years.

On Tuesday the Court will hear arguments in Lee v. United States. Lee analyzes whether a noncitizen defendant was prejudiced by inadequate legal advice when he rejected a plea offer notwithstanding strong evidence of guilt, and the plea would have resulted in mandatory and permanent deportation. The petitioner in the case, Jae Lee, is a Tennessee man from South Korea. Lee immigrated to the U.S. in 1982 and became a restaurateur. He was charged in 2009 with possession of ecstasy with intent to distribute. Lee’s attorney recommended that Lee plead guilty to receive a shorter sentence, and falsely told him that a guilty plea would not result in Lee’s permanent and mandatory deportation.  Lee sought to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate counsel. Although the government agreed that the attorney had given inadequate advice, the lower courts ruled that Lee could not show that he was prejudiced by that advice because evidence of his guilt was overwhelming. The ABA Journal discusses the legal question and relevant precedents in more depth.

On Wednesday the Court will hear two consolidated cases that arise from the 1984 murder of a District of Columbia woman: Turner v. United States and Overton v. United States. The cases ask whether the petitioners’ convictions must be set aside under Brady v. Maryland, which held that suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material to guilt or punishment, regardless of the prosecution’s good or bad faith. The petitioners are D.C. men who were convicted, based largely on testimony from alleged eyewitnesses. Decades later, it was revealed that prosecutors had not turned over multiple pieces of discovery that would have strengthened the defendants’ cases. The men sought unsuccessfully in lower courts to vacate their convictions.

Constitution Daily has more on the cases’ history.

Finally on Wednesday, the Court will hear arguments in Honeycutt v. United States, where the Court will analyze whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. The Honeycutt brothers, Tony and Terry, operated a hardware store in Brainerd, Tennessee. Tony owned the store with their father; Terry was a salaried sales employee. In less than three years, the store sold more than 15,000 bottles of a water purifying product called “Polar Pure.” The police told the family that the product’s iodine ingredient could be used to cook methamphetamine, but they kept selling it. The government indicted the brothers on conspiracy to distribute methamphetamine precursors, among other crimes. Tony pled guilty and accepted a forfeiture judgment. Terry went to trial, and was convicted of 11 counts. The district court declined to order forfeiture against Terry, on grounds that he had no ownership in the store, was salaried, and “did not stand to benefit personally from the illegal sales.” The ruling was reversed and remanded on appeal. The Court will decide whether the statute may empower a federal court to order a defendant to forfeit proceeds that he did not “obtain” under a theory of joint and several liability. The New York Law Journal takes a deeper look at the case and the issue of joint and several liability in forfeiture cases.

On Monday, the Court granted cert in two new cases – a bankruptcy case called U.S. Bank National Association v. Village at Lakeridge, and a securities case about the duty to disclose called Leidos, Inc. v. Indiana Public Retirement System. It also called for the views of the Solicitor General in Snyder v. Doe, which is about the application of the Ex Post Facto clause to sex offender registration. On Friday the Court will meet for Conference, and orders will be released next Monday.