OT 2017, Voting Rights

Gill v. Whitford Oral Argument Preview

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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.

OT 2017, Teaching about the Supreme Court

Teaching About the Supreme Court

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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.

History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—August 24, 1814

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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.  

OT 2014

This Day in Supreme Court History—August 8, 1793

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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:

Sir

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”

History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—July 24, 1974

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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.

First Amendment, This Day In Supreme Court History

This Day in Supreme Court History—July 7, 1986

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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.

OT 2016, Weekly Preview, Weekly Roundup

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

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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, FiveThirtyEight.com 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.

 

OT 2016, Weekly Roundup

Weekly Roundup – June 23, 2017

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After announcing five opinions on Monday (discussed here), the Supreme Court issued three more on Thursday and another three on Friday. This coming Monday, June 26, is the last announcement day currently scheduled, and there are six cases still to be decided. And it is possible (although not overwhelmingly likely at this point) that the Court will push one or more of those cases over to next Term for reargument if it is deadlocked 4-4 in a case that was argued before Justice Gorsuch joined the Court. Also on Monday, the Court will announce its orders from the last Conference of the Term and it will, most likely, announce both whether it is upholding the stays in the travel ban cases and whether it will hear one or both of those cases on the merits.

Perhaps the most high profile case announced on Thursday was Maslenjak v. United States. The Court held, 9-0, that the United States government cannot strip a naturalized citizen of her citizenship on the basis of falsehoods told during the application process unless it can prove that those falsehoods were material to the decision to grant citizenship — that is, whether there is a causal relationship between the falsehood and the decision. Justice Kagan wrote the opinion, which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined in full. Justice Alito concurred in the judgment, and Justice Gorsuch, in his first separate opinion, concurred in part and concurred in the judgment, joined by Justice Thomas. (Justice Gorsuch would have declined to provide as much guidance about how the lower courts should evaluate materiality as the Court did.)

Maslenjak is one of several cases that Pam Karlan, Stanford law professor and highly experienced Supreme Court advocate, describes as part of the “outrage docket.” It was a case that the Court might not have had to take on traditional criteria, but the case provoked strong reactions among at least some of the Justices. As she recounted the oral argument in Malenjak, “Chief Justice John Roberts forced the assistant to the solicitor general to admit that under the government’s view, someone could be denaturalized if he didn’t admit to driving 61 miles per hour in a 55 zone, even if he was never caught and the statute of limitations for such an infraction has run out.” Other cases from this Term that Karlan places on the outrage docket include Buck v. Davis, where an African-American capital defendant’s own attorney put on expert testimony that blacks are more likely to be dangerous than are whites; Moore v. Texas, in which Texas persisted in using long-outdated tests for determining cognitive impairment to determine eligibility for execution; Packingham v. North Carolina, decided Monday, in which a North Carolina law barred convicted sex offenders from vast swaths of the internet; and Nelson v. Colorado, which involved a Colorado requirement that a defendant who has been exonerated establish his innocence by clear and convincing evidence to recover fines and fees. Professor Karlan’s discussion is part of the annual Slate.com The Breakfast Table — a conversation between some of the most interesting courtwatchers and advocates about the Court’s Term.

Also on Thursday, the Court issued opinions in Weaver v. Massachusetts and Turner v. United States. Weaver involves the interaction of postconviction review with what is called “structural error.” As the Weaver majority explained, “[t]he purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should
define the framework of any criminal trial,” and requires automatic reversal when those guarantees are violated. The error in Kentel Myrone Weaver’s murder trial was that during two days of jury selection, the courtroom was improperly closed to the public, which would normally be considered structural error. But because his lawyer failed to object or to raise the issue on appeal, Weaver had to raise it as part of an ineffective assistance of counsel claim on postconviction review. And ineffective assistance of counsel requires a showing of prejudice to overturn a conviction. The question in Weaver addressed the need to demonstrate prejudice when the ineffective assistance resulted in structural error. The Court decided, 7-2, that Weaver must show prejudice. As The New York Times outlines, Justice Kennedy’s majority opinion (joined by the Chief Justice and Justices Thomas, Ginsburg, Sotomayor, and Gorsuch) states that “it must be recognized that open trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness.” Justice Breyer’s dissent opposed the majority’s view that the constitutional violation must have affected the whole trial, and states that an error leading to a “fundamental constitutional violation” should be enough to automatically grant a new trial. Justices Thomas, joined by Justice Gorsuch, concurred, questioning whether the closed courtroom should really be considered structural error and taking issue with the majority’s articulation of the prejudice standard. Justice Alito, also joined by Justice Gorsuch, concurred in the judgment also for reasons related to the prejudice standard. As ScotusBlog points out, Justice Gorsuch joined all three opinions that agreed on the outcome, even the one where the author himself declined to join the majority..

In Turner, the third of Thursday’s cases, the Court decided that the petitioners in a 1985 murder case were not entitled to a new trial due to previously withheld exculpatory evidence. In a 6-2 decision, with the majority authored by Justice Breyer, the Court decided that the evidence withheld was not material under the Brady v. Maryland standard. The Washington Post reports that Justice Kagan, who was joined by Justice Ginsburg in dissent, staunchly opposed the bottom line of the majority decision, noting that, “[w]ith the undisclosed evidence, the whole tenor of the trial would have changed.” (Justice Gorsuch did not participate.) In his contribution to The Breakfast Table on Slate.com, former United States Solicitor General Walter Dellinger offers an interesting perspective of the case, seeing it from the solicitor general’s point of view: “[o]ne of the few unhappy aspects of being solicitor general is when you find out that a United States attorney has brought an ill-advised criminal case, won a conviction, and then persuaded a federal court of appeals to uphold the conviction.” Dellinger points out that sometimes prosecutors are overzealous and need to be reminded of Brady’s requirements, but he does not argue that the Court’s decision was clearly wrong, giving special credit to the government’s lawyer in the Supreme Court, Michael Dreeben, who is now also working part time for Robert Mueller, the special prosecutor in the Russia investigation.

Ineffective assistance of counsel was at issue in one of Friday’s opinions, Lee v. United States. In Lee, the defendant pleaded guilty to a drug crime at his attorney’s urging and assurance that it would not affect his immigration status. In fact, that advice was wrong and Lee found himself subject to deportation. The 6-member majority, in an opinion written by the Chief Justice and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, held that Lee adequately established prejudice and was entitled to a new trial. Justice Thomas, joined in part by Justice Alito, dissented, and Justice Gorsuch did not participate.

Murr v. Wisconsin, also decided on Friday, was the only close vote of the six cases released at the end of this week. Murr, which involved an alleged regulatory taking, was 5-3, with Justice Kennedy, joined by the four liberals, writing for the majority, the Chief Justice, joined by Justices Thomas and Alito, dissented, and Justice Thomas wrote an additional dissent. (Justice Gorsuch did not participate.) The issue in Murr involved how to evaluate whether a regulatory taking has occurred — that is, whether a property-owner has been deprived of all economically beneficial use of their property as a result of a regulation — where the property at issue is two adjoining lots. The Court provided a fact-specific, multifactor approach to the analysis and held that, in this case, the property was appropriately treated as a whole and no regulatory taking occurred.

Finally, on Thursday, the Court released a 7-2 decision in Perry v. Merit Systems Protection Board, a case notable to the general public largely because it was argued on the first day that Justice Gorsuch was on the bench. The issue in the case was whether a federal employee, disappointed by the resolution of a certain type of employment dispute in front of the Board, should appeal to the district court or to the Federal Circuit. The Court held that the correct forum was the district court. Justice Gorsuch, joined by Justice Thomas, dissented, arguing that the Court was effectively rewriting the statute and echoing his complaints at oral argument.

ISCOTUSnow will be back next week with the final decisions of the Term. The remaining cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond, Hernandez v. Mesa, about the extraterritorial application of the Fourth Amendment in a cross-border shooting of a fifteen-year-old Mexican boy and possibility of suit by his parents, Trinity Lutheran Church of Columbia v. Comer, a challenge to Missouri’s constitutional prohibition on funding even nonreligious activities, like playgrounds, undertaken by churches, Davila v. Davis, a habeas case about when ineffective assistance of counsel can excuse a petitioner from raising claims in state court, Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation, and California Public Employees’ Retirement System v. ANZ Securities, Inc., which is about the timeliness of individual securities fraud claims that might have been part of a putative class action. SCOTUSblog offers more detailed descriptions of these cases here.

Affirmative Action, Civil Rights, This Day In Supreme Court History

This Day in Supreme Court History—June 23, 2003

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On this day in 2003, the Supreme Court decided Grutter v. Bollinger, one of the Court’s most important rulings on the constitutionality of affirmative action. In a 5-4 ruling, the Court upheld the admissions policy of the University of Michigan Law School, which used race as one factor in its evaluation of applicants.

Challenging the law school’s affirmative action policy was Barbara Grutter, a white student who claimed that her constitutional rights were violated because she had been denied admission while racial minority candidates with lower GPAs and test scores had been admitted. Grutter’s supporters hoped that the Court would use her case as an opportunity to overrule Regents of the University of California v. Bakke, the 1978 Supreme Court decision that struck down racial quotas but allowed for more flexible, “holistic” use of racial preferences for purposes of increasing diversity in higher education.  

Affirmative action opponents won a partial victory in Gratz v. Bollinger, decided on the same day as Grutter. In this case a five-justice majority of Court struck down the racial preference policy used by for undergraduate admission to the University of Michigan, which used a points-based admission system that assigned a certain number of points for racial-minority status.

But Justice O’Connor, who joined the majority striking down the undergraduate policy in Gratz, joined the four dissenters in that case (Justices Stevens, Souter, Ginsburgand Breyer) to form a majority to uphold the law school’s policy in Grutter. She reiterated Bakke’s holding that states had a “compelling interest” in creating racial diversity in their institutions of higher education and then held that the law school’s racial preference policy was “narrowly tailored” because the law school “considers race only as a plus in a particular applicant’s file and gives serious consideration to all the ways besides race that an applicant might contribute to a diverse educational environment.” The law school’s effort to ensure a “critical mass” of minority students “operates neither as a quota nor a two-track admission system.”

In his dissent, Chief Justice Rehnquist denounced the law school’s program as nothing more than “a naked effort to achieve racial balancing.” He argued that the law school policy, like the undergraduate admissions policy, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Scalia wrote his own acerbic dissented in which he lamented that “today’s Grutter–Gratz split double header seems perversely designed to prolong the controversy and the litigation” over affirmative action.

Justice Thomas wrote a long, powerful, and personal dissent. He began by quoting the great African American abolitionist Frederick Douglass, who gave a speech in 1865 denouncing the harms caused by white “interference” with blacks. “Do nothing with us!” Douglas demanded. “Like Douglass,” Thomas wrote “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Although modified somewhat in the recent Fisher v. University of Texas decisions, Grutter remains basically intact today. Universities are permitted to use racial preferences in selecting their incoming classes, so long as they are doing so in order to advance a goal of diversity and so long as they use a flexible process of evaluation in which race is only one factor among many.

OT 2016, Weekly Preview, Weekly Roundup

This Week at the Court – Week of June 19, 2017

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The Supreme Court hit the ground running this week, handing down five opinions, one per curiam, and releasing its order list from its June 15 conference.

Matal v. Tam (previously named Lee v. Tam) stems from a challenge by an Asian-American band wishing to trademark their band name, “The Slants,” with the U.S. Patent and Trademark Office (PTO). Under the governing statute, known as the Lanham Act, the PTO was not required to register any trademark that is “disparaging” to “persons, living or dead, institutions, beliefs, or national symbols.” The Court decided that the Lanham Act’s disparagement clause violates the free speech clause of the First Amendment. This unanimous victory for Simon Tam and “the Slants” sparked discussions about the Washington Redskins and their controversial team name. The decision was unanimous as to result, but there was a majority as to only part of the primary opinion, written by Justice Alito. Both Justice Kennedy (joined by Justices Ginsburg, Sotomayor, and Kagan) and Justice Thomas concurred in part and concurred in the judgment. The Washington Post discusses the arguments on either side of this debate, noting that “while this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will not pass to the public.” And in an unusual move, The New York Times confessed in an editorial that it had determined its previous position supporting the anti-disparagement provision, in the context of the PTO’s denial of a trademark for the Redskins, had been wrong, and it published a profile of Simon Tam and the band here. Matal v. Tam served as the ISCOTUSnow’s teaching focus at Constitutional Rights Foundation Chicago (CRFC)’s event in June. Simon Tam joined our discussion via Skype to explain his argument, which prevailed in the high court. Read more about the event, here. SCOTUSblog is sponsoring a symposium on the decision.

In Ziglar v. Abbasi, the Court addressed whether a group of non-citizens who were detained after the terrorist attacks on September 11, 2001 could sue for damages against two groups of federal officials for their “harsh pretrial conditions for a punitive purpose” in violation of their Fifth Amendment rights. (Former FBI Director Robert Mueller was among the federal officials sued in this suit.) The legal theory stemmed from Bivens v. Six Unknown Fed. Narcotics Agents, in which the Court created a remedy for constitutional violations carried out by agents of the federal government even in the absence of statutory authorization for such a lawsuit. But the Court, in an opinion by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Thomas, held in Ziglar that a Bivens type remedy should not be extended to the plaintiffs in this case in part because of the national security context. Justice Breyer, joined by Justice Ginsburg, dissented, and in an unusual move, he read part of his dissent from the bench. It was the first time this Term that any Justice has done so. Garrett Epps of The Atlantic recounts his powerful words calling them “civil but furious.” Justice Breyer used a metaphor of arson in his decision, warning his colleagues that a decision such as this, Epps explains, burns down “the entire structure of constitutional torts to shelter officials in national-security matters.” Because Justices Sotomayor and Kagan were recused and Justice Gorsuch had not yet joined the Court when the case was argued, Ziglar was heard by only six Justices.

The question in Packingham v. North Carolina, the Court was whether it was violated the First Amendment to restrict the access of registered sex offenders to social media websites where minors are allowed to have accounts. Lester Packingham, a convicted sex offender was arrested after the police found his Facebook profile, and he was charged with violating North Carolina’s law that made it a crime for offenders to access sites such as Facebook. (Mr. Packinhgham was convicted for violating the law after he thanked God on Facebook for getting out of a traffic ticket.) On Monday, the Court, in an opinion by Justice Kennedy, struck down the law. According to Ephrat Livni of Quartz, “the justices unanimously held that states can’t broadly limit access to social media because cyberspace ‘is one of the most important places to exchange views.’” Livni went on to note that this case has implications for society as a whole, not just offenders, and the court “appears to be extreme conscious of the broader effect.” Justice Kennedy wrote “A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” The court also stated that criminals are especially in need of being able to freely use the internet for the many different types of information available, such as employment ads and “exploring the vast realms of human thought and knowledge. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Check out ScotusBlog, The Atlantic, and The New York Times for more commentary on this case.

The fourth opinion announced on Monday was in McWilliams v. Dunn. As Ryan Lovelace of The Washington Examiner explained, James McWilliams was convicted of the rape and murder of Patricia Reynolds and sentenced to death. He requested neuropsychological testing, but his attorneys did not have an opportunity to work with an expert to review and analyze the results. Justice Breyer, joined by the other three liberals and Justice Kennedy, wrote the opinion in this case, which sided with McWilliams. The opinion stated that he did not get the assistance that he was guaranteed under Ake v. Oklahoma. As Lawrence Hurley of Reuters noted, Ake guarantees that indigent defendants are entitled to expert assistance, but the McWilliams ruling does not clarify whether defendants are entitled to have their own expert, or if one expert for both the defense and prosecution is good enough if the defense has the appropriate assistance in assessing the expert report. Taylor Dolven of Vice comments on Justice Alito’s dissent (joined by the Chief Justice and Justices Thomas and Gorsuch), which stated that the decision was too narrow and “case-specific.”

Finally, in an 8-1 decision written by Justice Alito, the Court held in Bristol-Myers Squibb v. Superior Court of California that a state court does not have jurisdiction over claims brought by out-of-state residents over out-of-state conduct by a defendant that is domiciled out of- state, even if the state court would have jurisdiction over comparable claims brought by its own residents. Justice Sotomayor was the only dissenter, and she argued that this case would have substantial effects, in particular making it much more difficult for plaintiffs to aggregate their claims. Indeed, the scheduled trial in one class action has already been postponed in light of this decision.

In other news, on Monday, the Supreme Court unanimously reversed the Sixth Circuit — not for the first time — in a per curiam habeas case, Jenkins v. Hutton. And it announced that it would hear Gill v. Whitford, a major partisan gerrymandering case out of Wisconsin.

Justice Neil Gorsuch has been a member of the Supreme Court for more than two months and has even drafted his first opinion. But it wasn’t until late last week that Justice Gorsuch participated in his formal investiture ceremony. Justice Roberts delivered the judicial oath to an audience of lawmakers, federal judges, and President Trump. The New York Times recounts the event, noting that while it is “purely ceremonial,” it is a tradition that is “stately and steeped in history.” Photos from the event can be found at the Supreme Court’s official website.

Chief Justice Roberts has been busy on and off the bench in the last few weeks. He served as the commencement speaker for Cardigan Mountain School, his son’s junior high school. The Chief Justice had words of wisdom for the graduates: “From time to time, in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice.” View his full commencement address, here.

The Court has two more opinion announcement days scheduled — Thursday, June 22 and Monday, June 26, when it will also issue orders from the last Conference of the year — although it could add more announcement days next week if it needs to. Among other orders, the Court is expected to rule on the stay applications and petitions for certiorari in the travel ban cases by Monday. Stay tuned for these and other developments.