Appointments, Confirmation Hearings, Justices, Kavanaugh, OT 2018

The Court’s Newest Justice

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Brett Kavanaugh has been an Associate Justice of the Supreme Court for over a week now. Here’s a recap of events since his October 6 Senate confirmation vote.

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By some measures, Kavanaugh is the least popular nominee to make it to the Court. Kavanaugh’s 50-48 confirmation vote tied Justice Clarence Thomas, who was approved 52-48 in 1991, for the record number of “no” votes for a successful nominee. Kavanaugh also received the fewest “yes” votes of all confirmed Justices since Mahlon Pitney, whom President William Howard Taft nominated in 1912 and the Senate approved by a vote of 50-26. Kavanaugh’s 2-point approval margin was the second smallest in history for an approved Justice. Senators approved Stanley Matthews by a single vote, 24-23, in 1881.

Once he got the votes he needed in the Senate, Kavanaugh then moved on to his oaths of office. First, was the judicial oath, which retired Justice Anthony Kennedy, whose seat Kavanaugh would now occupy, administered to his former clerk during a private ceremony the night of his Senate confirmation vote. Next was the Constitutional oath, which Chief Justice Roberts administered. Then, two days later, President Trump hosted a ceremonial swearing-in at the White House, where Justice Kennedy again administered the judicial oath. Trump apologized to Kavanaugh and his family “for the terrible pain and suffering” they had “been forced” to endure during the confirmation process. Kavanaugh gave a speech in which he said he had “no bitterness” over the confirmation. He also said all four law clerks he hired were women, a Supreme Court first. “I’ve worked hard throughout my career to promote the advancement of women,” Kavanaugh said.

Kavanaugh was on the bench the following day. The first case he heard was Stokeling v. United States, which, like the other two cases the Court heard on his first day, involved the interpretation of the federal Armed Career Criminal Act.

The newest Justice jumped right into his job. When the nine Justices emerged from behind the chamber’s red velvet curtain, Kavanaugh took his seat at the far end of the bench next to Justice Kagan. The two Justices laughed and talked until the argument began. Chief Justice Roberts paused at the start to welcome Kavanaugh, wishing him “a long and happy career in our common calling.” Once arguments began, Kavanaugh quickly joined the questioning.

With Kavanaugh now installed on the Court and predictions that the Democrats might take the House in the upcoming midterm elections, some of those who opposed his appointment are talking about the possibility of an impeachment proceeding against him. An impeachment would require a simple majority vote in the House or Representatives. But removal from office is highly unlikely since it would require a two-thirds majority in the Senate, which Democrats will not have in the near future. Some Democratic operatives are even looking past the midterms and talking about the impeachment of Kavanaugh as a 2020 campaign issue, Axios reports.

A big question now is what effect Kavanaugh’s confirmation will have on next month’s elections. Many are predicting that the confirmation will motivate women to turn out at the polls for Democrats. President Trump said earlier this week that he thinks the allegations against Kavanaugh were a “hoax” and will help turn out voters for Republicans.

Meanwhile, the Justices are worried about the effect these controversial confirmation hearings are having on the Court. At an event at Princeton University, Justices Kagan and Sotomayor raised their concerns . While not directly addressing Trump or their new colleague, the Justices said the increasingly partisan atmosphere surrounding the Court threatens its legitimacy and reputation. “This is a really divided time,” Justice Kagan said. “Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court the same way they see the rest of the governing structures in the country. It’s an incredibly important thing for the court to guard.”

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.

OT 2018, Weekly Preview

The Week Ahead: Week of October 8, 2018

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The Court will be back in session Tuesday after taking Columbus Day off, and Justice Brett Kavanaugh will be on the bench. Three cases are on the Court’s Tuesday docket, all presenting questions about the interpretations of crimes under the federal Armed Career Criminal Act (“ACCA”). The ACCA mandates prison sentences from 15 years to life for those convicted of certain firearm possession offenses normally subject to a 10-year maximum.The ACCA’s prison sentence mandate applies to those felons guilty of possessing a firearm with least three prior convictions for a violent felony or serious drug offense. The three parties in Tuesday’s cases with criminal histories are all in danger of the ACCA’s applying to their prison sentences if their prior convictions meet certain definitions under the ACCA.  

First the Court will hear Stokeling v. United States. That case presents the question of whether the Florida offense of unarmed robbery is a qualifying “violent felony” under the ACCA. The state robbery offense includes “as an element” the common law requirement of overcoming “victim resistance.” Florida appellate courts have specifically interpreted the offense to require only slight force to overcome resistance. The ACCA defines “violent felony” as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Also on Tuesday, the Court will hear United States v. Stitt and United States v. Sims. Both cases present the question of whether burglary of a non-permanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the ACCA. Victor Stitt was convicted of six burglaries in Tennessee, among other crimes. The U.S. Supreme Court’s 2015 decision in Johnson v. United States invalidated the violent-felony status of three of Stitt’s other convictions. Jason Sims was convicted of burglary in Arkansas. Both men were later convicted under federal law of being felons in possession of a firearm. ACCA might apply to both men’s sentences. T

Wednesday the Court will hear Nielsen v. Preap, which presents the question of whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately. Mony Preap, whose parents fled Cambodia, was born in a refugee camp. He has lived legally in the United States since 1981. He was convicted in 2006 of marijuana possession, but federal authorities did not pick him up after he was sentenced to time served. He served another criminal sentence for battery in 2013, which is not deportable. He was detained for months, but was released. The government placed him in removal proceedings long after his release from prison. The government argued that the mandatory detention provision of Section 1226(c) covered the applicable grounds of removal. The Washington Post wrote about the high stakes of this case, given President Trump’s promise to deport more noncitizens who have committed deportable crimes. Nine groups have submitted amici curiae, six on behalf of Preap, including former general counsels of Department of Homeland Security and Immigration and Naturalization Services.

Also on Wednesday the Court will hear Air and Liquid Systems Corp. v. Devries, which presents the question of whether products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute. Air and Liquid Systems Corp and the other defendants manufactured and sold equipment that exposed respondent Navy sailors (led by John DeVries) to asbestos when they used it. The equipment did not include asbestos insulation when the petitioner companies sold it to third-party companies who later installed the asbestos. But the petitioners designed their equipment in such a way that it would not have functioned safely without asbestos insulation. SCOTUSblog has a preview.

The Court will also issue orders on Tuesday from last Friday’s Conference, and it will hold Conference this coming Friday as well.

Written by ISCOTUS fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by Carolyn Shapiro, ISCOTUS Co-Director and Chicago-Kent Faculty Member.

 

OT 2018, Weekly Roundup

Weekly Roundup: Week of October 1

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When the Supreme Court goes to work on Tuesday, it will be back to its full nine-member strength. Justice Brett Kavanaugh was confirmed on Saturday and sworn in the same day.

But for the first week of the Term, the Court had only eight members, and aspects of its new dynamics were on display.  In a piece for NPR, Nina Totenberg considers the consequences of an eight-justice Court for the October term. When the Court splits 4-4, the lower court ruling stands. In Weyerhaeuser Company v. United States Fish and Wildlife Service, the Endangered Species Act case discussed here, Robert Barnes of the the Washington Post observes that the dusky gopher frog has managed to “divide the understaffed Supreme Court into familiar camps and raised the possibility that the first case of the 2018 term might end in a tie.” The justices do have a way out, however. They can order the case re-argued with Justice Kavanaugh sitting.

On Tuesday, the Court heard arguments in Madison v. Alabama, discussed here, which addresses whether the Eighth Amendment and prior decisions in Ford v. Wainwright and Panetti v. Quarterman bar a state from executing a prisoner whose mental disability leaves him with no memory of his commission of the capital offense. Bryan A. Stevenson argued on behalf of Vernon Madison, an Alabama inmate who has been on death row for more than 30 years and cannot remember the crime for which he was sentenced as a result of several strokes he has suffered and dementia. For Slate, Mark Joseph Stern considers whether, in Justice Anthony Kennedy’s absence, John Roberts may be the swing vote in Madison, opining that “Roberts appeared eager to broker a compromise that would spare Madison’s life by conceding that dmentia may exempt him from the death penalty. The case provides an early glimpse of the post-Kennedy court—with the chief justice embracing his role as the new swing vote.”

The Justices have clearly been aware of the spotlight on the Court throughout the Kavanagugh nomination. On Thursday, as senators reviewed the results of an FBI investigation into allegations of sexual assault against Kavanaugh, Justice Breyer spoke at the Atlantic Festival, intentionally avoiding the subject, stating: “I’m obviously going to stay as far away as I can from any particular controversy that’s going on.” Instead, he discussed literature and the importance of the humanities in understanding other people, as Andrew Hamm of SCOTUSBlog describes here.

Written by ISCOTUS Fellow Elisabeth Heiber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by Carolyn Shapiro, ISCOTUS Co-Director and Chicago-Kent faculty member.

OT 2018, Weekly Roundup

October 3 Oral Arguments: Arbitration for Workers?

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On Wednesday, the Supreme Court heard oral arguments on two cases, Knick v. Township of Scott, Pennsylvania and New Prime v. Oliveira. In New Prime, the Court must decide whether the Federal Arbitration Act (“FAA”) applies to independent contractors in the trucking industry. Specifically, the FAA exempts from enforcement those arbitration clauses in “contracts of employment” for workers who are “engaged in” interstate commerce. The question in the case is whether that exemption is limited to employer/employee relationships or whether it also includes contracts with independent contractors. In this suit, a driver alleged that he was not paid minimum wage. He filed a class action against New Prime for unfair labor practices and wage and hour issues. If he were an employee, the suit would not be preempted by the FAA.

As CNBC’s Tucker Higgins points out, during oral arguments, Chief Justice stated, “[s]imply because someone would be considered or not considered an employee doesn’t necessarily answer the question of whether it’s a ‘contract of employment.’” Oliveira argued he was mischaracterized as an independent contractor but was an employee of New Prime, and that his role came under a “contract of employment” to do essentially the same job functions. JHiggins also notes that “If independent contractors are exempt from the FAA, the knock-on effect for the trucking industry and the economy overall could be significant.”

Justice Sotomayor asked the counsel for New Prime whether there is “any other area of law where we take the party’s label, ’employee’ versus ‘independent contractor,’ and give it binding effect?” The attorney responded, “I can’t think of one.” The issue for the trucking industry is that with capacity shortages and an increase in the shipment of goods through online shopping, the large number of truck drivers on the road seeking litigation could put stress on the industry causing an increase in prices to hit consumers.

In Knick, the Court weighed whether property owners must exhaust their state court remedies before bringing a Takings Clause claim to federal court. As SCOTUSBlog’s Miriam Seifter points out, during oral arguments,, several jutices asked whether Knick’s decision to circumvent the state-based precludes her from filing in federal court.

This post was written by ISCOTUS fellow Michael Halpin, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by Carolyn Shapiro, ISCOTUS Co-Director and Chicago-Kent faculty member.

Criminal Law, Death Penalty, OT 2018, Weekly Roundup

October 2 Arguments: Delegation and Dementia

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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?

Petitioner:Yes.

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.

 

Environmental Law, OT 2018, Weekly Roundup

October 1 Arguments: Dusky Gopher Frog Goes to Court

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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.

 

Confirmation Hearings, Justices, This Day In Supreme Court History

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

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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.

 

OT 2018, Weekly Preview

First Week of OT 2018

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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

Appointments, Justices, Kavanaugh

The Kavanaugh Nomination—Where Things Stands

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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.

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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.