October 2 Arguments: Delegation and Dementia

Arguments Oct_02_2018

           The Court heard arguments in two cases on Tuesday: Gundy v. United States and Madison v. Alabama. In Gundy, the Court was asked to consider whether the non-delegation doctrine (which says that Congress cannot hand its legislative powers to agencies) is violated by the federal Sex Offender Notification and Registration Act’s (SORNA) delegation of authority to the Attorney General to issue regulations under 42 U.S.C. § 16913(d).This statute gives the Attorney General the authority to specify the initial registration requirements for certain sex offenders. Failure to register can lead to criminal penalties. The following exchange, which resulted in laughter from the bench, gives a good summary of the Petitioner Herman Gundy’s argument:

Justice Gorsuch:How do people even know who is going to be included in this class until they hear from the Attorney General? […] We say that vague criminal laws must be stricken. We’ve just repeated that last term. What’s vaguer than a blank check to the Attorney General of the United States to determine who to prosecute?


Justice Ginsburg:That’s your argument stated very concisely.

Petitioner:I’ll cede my time.

This brief exchange from the Respondent’s argument gives a quick look at the United States’ position in this case. Click here to read a transcript of the arguments made on both sides.

Justice Kagan: And when you say the Attorney General could – tell me what you think the Attorney general cannot do, given the language of this statute […]”

Respondent: So I don’t think the Attorney General could say: Look, I know Congress set up three tiers with registration links of 15, 25 years, and life, but I’m going to require you to register, but only for a few years.

Check out Law360 for more information on the arguments in Gundy.

           In Madison, the Court heard arguments about whether being unable to remember committing the crime that a defendant gets the death penalty for makes him incompetent to be executed. Vernon Madison has suffered from several strokes, has vascular dementia, diminished cognitive abilities, and has no memory of committing the murder that he is to be executed for. Madison’s attorney Bryan Stevenson explains the Petitioner’s position: “What we argued is that his dementia renders him incompetent in a way that does not permit the state, consistent with the Eighth Amendment, to carry out his execution.” On the other hand, the attorney representing the State of Alabama had this to say: “[T]he state would still have strong interest in seeking retribution for a horrible crime. If someone – even if they can’t remember the crime, that doesn’t somehow lessen their ability to understand.” Click here for the full transcript of today’s arguments in Madison. The Montgomery Advisor covers the background of the case in more detail, and ISCOTUSnow expects to have more detailed coverage of this case coming up (similar to this in-depth post about a previous death penalty case, McCoy v. Louisiana). CNBC, The New York Times have more information on this case and today’s arguments.  

Written by Zoe Arthurson-McColl, edited by Matthew Webber, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


October 1 Arguments: Dusky Gopher Frog Goes to Court

Even with most courtwatchers’ eyes on the Kavanaugh nomination, the Supreme Court heard arguments this past week. On Monday, October 1, the first day of the Term, the Court first heard argument in Mount Lemmon Fire Dist. v. Guido an age discrimination case, addressing the narrow issue of whether the Age Discrimination in Employment Act applies to political subdivisions with fewer than 20 employees. More information is available at CNBC.

In Weyerhaeuser Company v. United States Fish and Wildlife Service takes a look at the efforts to protect the dusky gopher frog under the Endangered Species Act (ESA). ISCOTUSnow detailed this case about back in January, which centers on whether the ESA prohibits private land from being marked as “unoccupied critical habitat” even though it is not currently being used by an endangered species. The case also prevents a “Chevron Doctrine” issue, whether the agency’s decision regarding the designation of habitats is something the courts can review.

Fox News reports the attorney for Weyerhaeuser argued that designating its land as unoccupied critical habitat would cost the company tens of millions. Justice Sonia Sotomayor pointed out that generally if land is so designated, the agency and the owners come to an accommodation. Chief Justice John Roberts was concerned about the limit on what the government could do in making the landowners restore the lands into habitats. Justice Breyer, on the other hand, appeared more comfortable with the government’’s ability to “make the call.” Check out The Economist, The Washington Post, and Bloomberg for more information on this case.  

Monday was also the 25th anniversary of Justice Ruth Bader Ginsburg sitting on the bench. Chief Justice John Roberts began the term by wishing her “many more years of service in our common calling.”

This post was drafted by ISCOTUS Fellow Clayburn Arnold, edited by ISCOTUS Editorial Coordinator Matthew Webber, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


On This Day in Supreme Court History—October 6, 1991

On this day in 1991, National Public Radio first broke the story of Anita Hill’s allegations of sexual harassment against Supreme Court nominee Clarence Thomas.  

After graduating from Yale Law School, Hill worked as special counsel to Thomas, who was then head of the Office for Civil Rights in the U.S. Department of Education. She then became Thomas’ personal assistant when he became the chair of the U.S. Equal Employment Opportunity Commission (EEOC). According to Hill, during her time working with Thomas, he repeatedly asked her out and, when she refused, he discussed graphic sexual content in front of her. In 1983, after hospitalization for stress induced stomach pains, Hill resigned from her job at the EEOC and became a law professor. Hill explained that she continued to work with Thomas despite being subjected to repeated harassment because she was concerned about her job prospects and she feared professional retribution.

Photo Credit: New York Times

In the summer of 1991, President George H.W. Bush nominated Thomas to replaced Justice Thurgood Marshall, who was forced to retire for health reasons. The nomination was controversial from the beginning. Thomas had been a judge for only a year and a half, and his conservative legal views contrasted sharply with the man whose seat he would occupy. Even before Hill’s accusations came to light, Thomas’s nomination faced considerable opposition. On September 27, after the Senate Judiciary Committee divided on whether to send the nomination to the floor with a favorable recommendation, it forwarded the nomination without any committee recommendation.

HIll initially refused to tell her story when approached by Democratic staffers. She said she changed her mind after further considering her experiences with Thomas and the Supreme Court’s role in protecting workplace rights. Even then, Hill did not intend to go public with her accusations; she wanted the affidavit she submitted to the Judiciary Committee to remain confidential. Only when it was leaked to the press did Hill decide to discuss her story publicly.

On October 6, 1991, NPR aired Nina Totenberg’s interview with Hill in which she discussed her experiences with Thomas. As a result, the Senate Judiciary Committee reopened Thomas’ nomination hearings on October 11, and over 20 million Americans tuned in to the nationally televised hearings over the course of three days, at which both Hill and Thomas testified. Thomas denied any wrongdoing and denounced the hearings as a “high-tech lynching.”

The Senate  eventually confirmed Thomas 52-48, almost exclusively along partisan lines. Many credit Hill’s testimony and the all-male Judiciary Committee’s dismissive treatment of her with helping usher in the “Year of the Woman” in the 1992 elections. The elections produced a then-record 47 women in the House of Representatives along with an additional 4 Senate seats held by women. The hearings also raised awareness regarding the issue of sexual harassment. Congress amended the Civil Rights Act in November of 1991 to allow compensatory damages, rather than just back pay, for victims of discrimination, including those of sexual harassment. Sexual harassment complaints to the EEOC more than doubled in the five years following Hill’s testimony.

Anita Hill, today an author, professor, and advocate for women’s rights, has recently spoken out in support of Christine Blasey Ford, who has accused Supreme Court nominee Brett Kavanaugh of sexual assault when they were high school students..

This Post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


First Week of OT 2018

The Supreme Court’s October 2018 Term began Monday with an 8-Justice Court. The Court heard oral argument in six cases during this first week of the Term.:

The Court will also hold a Conference on Friday to discuss further cases to be added to the Term Calendar. SCOTUSblog’s list of petitions to watch, which are cases that are pending certiorari before the Court, can be found here.

Written by Eva Dickey, edited by Matthew Webber, and overseen by ISCOTUS Co-Director Carolyn Shapiro

The Kavanaugh Nomination—Where Things Stands

Last Thursday’s explosive Senate Judiciary Committee hearing is still reverberating across the political landscape. What took place is sure to have significant ramifications for the upcoming midterm elections, for sexual politics in the coming years, and for future Supreme Court nominations hearings. Still unclear, however, is whether it changed the course of what had just weeks ago appeared to be a smooth path to the Supreme Court for Judge Brett Kavanaugh.

Image result for kavanaugh confirmation

The most important development since Thursday’s hearing was the decision of the Republican-controlled Judiciary Committee to put off the vote on the nomination for a week to give the FBI time to investigate some of the allegations made against Kavanaugh—a potentially significant concession to Kavanaugh’s critics. Senator Jeff Flake demanded the delay and investigation, saying that Kavanaugh would not have his vote without it.

But now that the FBI has completed its investigation and submitted its report, we seem to have returned back to where we were a week ago. Most Senate Republicans believe the FBI report provides further justification for their support of the nominee; most Senate Democrats criticize the investigation as insufficient and argue that the report gives them nothing to make them reconsider their opposition to the nominee. And all eyes are on a handful of Senators—Democrat Joe Manchin of West Virginia and the Republicans Jeff Flake of Arizona, Susan Collins of Maine, and Lisa Murkowski of Alaska—who have yet to say which way they’re planning to vote.

Yesterday gave us yet more turns in this unfolding drama. Judge Kavanaugh took the extraordinary step of publishing an op-ed defending himself. The Wall Street Journal ran Kavanaugh’s op-ed under the headline “I am an Independent, Impartial Judge.” “I was very emotional last Thursday, more so than I have ever been,” Kavanaugh wrote. “I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said.” He concluded by reiterating his commitment to “an independent and impartial judiciary” and promising to “keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.”

Meanwhile, retired Justice John Paul Stevens spoke out against Kavanaugh, saying that the nominee’s partisan statement at his hearing last week should disqualify him from serving on the Supreme Court. Stevens said that if he were to reach the Court, Kavanaugh’s words would require him to recuse himself from a number of cases, and “it’s not healthy to get a new justice that can only do a part-time job.”   

Senate Republican leaders say they plan to hold a vote on the confirmation tomorrow.

This post was written by ISCOTUS Fellow Elisabeth Heiber, Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt and edited by ISCOTUS Editorial Coordinator Matthew Webber, Class of 2019.

New Cert Grants from SCOTUS

Although all eyes have been on the Kavanaugh nomination, the Supreme Court has continued to go about its business. It will have its first day of oral arguments on Monday, October 1. (For an in-depth review of the upcoming Term, listen to this National Constitution Center podcast.)  And last week, the Court announced that it would be adding several more cases to its docket. In Tennessee Wine and Spirits Retailers Association v. Byrd, the Court granted the Tennessee Wine and Spirits Retailers Association’s petition for writ of certiorari. As the Wine Spectator explains, Tennessee law requires a person to reside in Tennessee for two years before being eligible for a retail license to sell liquor to consumers. The Sixth Circuit, however, held that this law violates the dormant Commerce Clause. This holding created a circuit split, as the Eighth Circuit has held that such laws are valid exercises of the authority granted to the States via the Twenty-first Amendment, which ended prohibition and gave states the power to control the distribution and sale of liquor within their own borders. The decision in this case could have implications for the twenty-one other states with similar durational-residency laws.

The Court will also hear a case for which Supreme Court nominee Judge Brett Kavanaugh wrote the opinion in the Court of Appeals for the District of Columbia. The Court granted cert in Azar, Secretary of Health and Human Services v. Allina Health Services, in which the D.C. Circuit held that HHS should have conducted a notice-and-comment process before providing instructions to a Medicare Administrative Contractor that might have changed reimbursement rates.

The Court also granted certiorari in Home Depot U.S.A. Inc. v. Jackson, involving the removal of class action claims from state to federal court, and in Thacker v. Tennessee Valley Authority, which addresses the scope of federal sovereign immunity.

Finally, the Court denied the last appeals of Daniel Acker to stay his execution, allowing Texas to carry out Mr. Acker’s execution on Thursday.

Written by Zoe Arthurson-McColl and Bridget Flynn, edited by Matthew Webber; overseen by ISCOTUS co-director Carolyn Shapiro.

More on the Kavanaugh Allegations

Judge Brett Kavanaugh’s nomination, and sexual misconduct claims against him, have continued to dominate this week’s news. When we left off last Thursday, Dr. Christine Blasey Ford was scheduled to testify before the Senate Judiciary Committee on Monday, September 24, but had asked for a thorough FBI investigation prior to her hearing. Her request called into question whether she would testify at all and led to a round of negotiations about the date on which she would appear before the Judiciary Committee. News broke early Sunday that Dr. Blasey Ford had committed to testify on Thursday, September 27, but there has been no FBI investigation. More on the hearing below.

Later Sunday, The New Yorker published a story about a second woman, Deborah Ramirez, coming forward with an accusation of sexual misconduct against Kavanaugh from his time at Yale University in the early 1980s. The  article, by Ronan Farrow and Jane Meyer, walks the reader through events from the time The New Yorker contacted Ms. Ramirez after hearing that she may have been involved in the incident. The article recounts her six-day process of considering whether she wanted to tell her story and her concerns about her memory of the alleged incident because she had been drinking at the time. This new accusation, it has been pointed out, is more uncorroborated than Dr. Blasey Ford’s. Nevertheless, on Monday James Roche, Brett Kavanaugh’s freshman-year roommate, released a statement in which he said that he believed Ms. Ramirez’s story – based on his time with both Ms. Ramirez and Kavanaugh. Tuesday, President Trump criticized both Ms. Ramirez, whom he said was “totally inebriated and all messed up,” and Democrats generally, calling them “con artists.”

The avalanche of news continued on Monday, starting with The New York Times publishing a story about a reference on Kavanaugh’s high school yearbook page in which he referred to himself as a “Renate Alumnius,” apparently in reference to Renate Schroeder Dolphin, one of the 65 signatories of the letter in support of Kavanaugh in the wake of Dr. Blasey Ford’s allegations. There have been varying explanations for exactly what the term meant.

On Monday evening Kavanaugh appeared, along with his wife Ashley, for an unprecedented interview on Fox News, as discussed by Professor Christopher Schmidt, Co-Director of ISCOTUS here. During the interview, Kavanaugh discussed his high school and college years, claimed never to have had so much to drink that he blacked out, and denied sexually assaulting anyone. Some former classmates subsequently took issue with his descriptions of his drinking, as reported by the Washington Post.

On Tuesday, GOP leaders announced that they had hired a “female assistant” to question both Dr. Blasey Ford and Kavanaugh on Thursday. The individual hired is Rachel Mitchell, a sex crimes prosecutor from Maricopa County, Arizona. Senator Grassley, Chair of the Senate Judiciary Committee also released the format for the hearing, which provides each senator only five minutes to question each witness, although the Republican senators are expected to yield their time to Mitchell. Grassley rescheduled the committee vote for Friday, less than 24 hours after Dr. Blasey Ford’s testimony in front of the committee, although he can postpone the vote again.

More explosive news broke on Wednesday, when Michael Avenatti, the attorney who represents Stormy Daniels in her lawsuit against Donald Trump, released a sworn declaration from his client Julie Swetnick, a current government employee. (Avenatti had been alluding to this client without naming her for several days.) Swetnick states that she witnessed Kavanaugh, with his friend Mark Judge, very drunk and groping or grabbing young women. She also alleges that she witnessed Kavanaugh and Judge attempting to make girls so drunk or to drug them so that they could be gang-raped. She alleges witnessing Kavanaugh and other boys waiting outside rooms to have a “turn.” Finally, she alleges that she herself was the victim of such a gang-rape and that Kavanaugh was present, although she does not say whether he in fact raped her. Kavanaugh promptly denied the allegations, stating, “this is ridiculous and from the Twilight Zone. I don’t know who this is and this never happened.”

As of now, the Thursday hearing on Ford’s charges is still scheduled to proceed.

Check back with ISCOTUSnow for more updates on the Kavanaugh accusations and hearing.

ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, drafted this post which was edited by ISCOTUS Editorial Coordinator Matthew Webber, Class of 2019. ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro oversaw the post.


On This Day in Supreme Court History—September 26, 1986

On this day in 1986, Antonin Scalia was sworn in as an Associate Justice of the United States Supreme Court. At the same ceremony, William Rehnquist was sworn in as the sixteenth Chief Justice of the United States. President Ronald Reagan used the occasion to praise the two men for their commitment to “judicial constraint.” “They knew that the courts, like the Constitution itself, must not be liberal or conservative,” the President stated. “The question was and is, will we have government by the people?”

Photo Credit: https://www.reaganlibrary.gov/photo-galleries/supreme-court

Rehnquist had been an Associate Justice on the Court since 1971. He had established a reputation as a solid and sometimes defiantly conservative vote on a range of issues. He often stood alone in dissent, particularly in his early years on the Court. In the coming years, the Rehnquist Court would move closer to his position on a range of issues, with decisions limiting congressional authority and constraining the recognition of unenumerated constitutional rights. Rehnquist remained in dissent in numerous significant cases, however, including those involving affirmative action and abortion rights. On some issues, such as women’s rights, Rehnquist showed a willingness to reassess his earlier positions.

Scalia was also recognized as an outspoken judicial conservative, a reputation he secured during his years as a law professor, a lawyer in the Nixon Administration, and, between 1982 and 1986, as a judge on the U.S. Court of Appeals for the D.C. Circuit. Scalia’s most lasting mark on the Court likely will be based not by his opinions for the Court—unlike Rehnquist, he wrote relatively few major majority opinions during his tenure—but by his advocacy for originalism and textualism as methods for interpreting legal texts and by his forceful and often biting writing style.

Rehnquist would serve as the Chief Justice for 19 years, his tenure ending when cancer took his life in 2005. Scalia served on the Court for 30 years, until his death from a heart attack in 2016.


This post was written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Kavanaugh Fights Back

In an event without precedent in the history of Supreme Court confirmation hearings, nominee Judge Brett Kavanaugh gave a televised interview to refute sexual assault allegations dating back to his high school years. (Video here; transcript here.) He appeared on Fox News Monday night, seated alongside his wife, Ashley Estes Kavanaugh.

The substance of Kavanaugh’s comments was nothing new. The nominee repeated over and over what he had already said in previously released statements: he never sexually assaulted anyone, “in high school or otherwise” (recent allegations of sexual misconduct involve his college years); he respects women; he just wants a fair process.

Ashley Kavanaugh offered a few brief comments in support of her husband. “He’s decent, he’s kind, he’s good,” she insisted. “I know his heart. This is not consistent with—with Brett.”

The only new information came when Kavanaugh defended himself by saying, “I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter.” This prompted the interviewer, Fox News reporter Martha MacCallum, to ask, “So you’re saying that through all these years that are in question, you were a virgin?” “That’s correct,” responded Kavanaugh.

Never been a particularly smooth operator when under the lights, Kavanaugh was clearly uncomfortable throughout the interview. He was stiff. He kept circling back to his talking points, often repeating them verbatim.

No Supreme Court nominee has ever done a press interview during the nomination process, never mind going on national television in prime time. Clarence Thomas and his wife Virginia were on the cover of People magazine in 1991, but this was only after he was confirmed to the Court, and the magazine piece was an account of the confirmation experience by Virginia Thomas because, as she explained, “I want to tell people about what we went through, even if Clarence can’t.”

A key question is whether the American people are watching another norm falling. Might we see future nominees engaging with the media to bolster their case for confirmation? Although it’s hard to imagine, much of what we’re seeing in public life recently was hard to imagine not so long ago.

Christopher W. Schmidt is a Chicago-Kent Faculty Member and Co-Director of ISCOTUS. 

The Latest on Cameras in the Supreme Court

Supreme Court nominee Brett Kavanaugh broke precedent during his confirmation hearings by declining to take a stance on cameras in the Supreme Court. Kavanaugh acknowledged that many recent nominees have suggested during confirmation hearings that they would support video coverage of the oral arguments at the Court, but then promptly reversed themselves upon taking a seat on the bench.  

Image result for cameras in supreme court“I know nominees who’ve sat in this chair in the past have expressed the desire for cameras in the courtroom, only to get to the Supreme Court and really change their positions fairly rapidly,” Kavanaugh said. The pattern gave him “some humility” about taking a stance on the issue before serving on the Court.

Kavanaugh also declined to express support for televising opinion announcements.

The public supports bringing cameras to the Supreme Court, according to a recent survey. C-SPAN commissioned research-based consultants PSB to conduct the poll. Based on online interviews of 1000 likely voters from August 2018, 64% agree that the U.S. Supreme Court should allow television coverage of its oral arguments.  If the Court declines to allow televised coverage, 71% believe it should release audio recordings on the same day arguments took place.

Other interesting findings from the survey:

  • 69% had been following the news about President Trump’s nominee to the bench;
  • 91% agreed that decisions made by the U.S. Supreme Court affect their everyday lives as citizens.

In light of the finding that 56% of respondents think that the Court is split politically, PSB Senior Strategist Adam Rosenblatt told Observer, “People are just assuming that they’re partisan entities. That has very serious implications.”

The Court appears unlikely to change its anti-camera policy soon. As CNN notes, none of the current justices support the idea. Justices Kagan and Sotomayor, who expressed support for cameras in the Supreme Court during their confirmation hearing,  both publicly stated on the same day in 2015 that they no longer favor the idea. Justice Gorsuch said during his confirmation hearing merely that he would approach the idea with an “open mind” but has not said anything more about the issue since.


This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.