Monthly Archives: November 2016

Justices

A Public Interview with Justice Kagan

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Post by Anna Jirschele, ISCOTUS Editor and 2L at Chicago-Kent College of Law.

The annual Equal Justice Works Conference and Career Fair took place last weekend in Washington, D.C., and the guest of honor was the Supreme Court’s very own Justice Elena Kagan. Often interviews with Supreme Court justices center on the work of the Supreme Court. Justice Kagan’s interview at the EJW Conference was different. For that hour, she was just Elena Kagan discussing her life story.

Justice Kagan was born in raised in New York City. Her father was an attorney and her mother was a teacher. She joked that her mother was always her toughest critic when it came to writing and she instilled in her the importance of “edit, edit, edit.” The more you edit, the better your work gets, she said. Justice Kagan went on to discuss the importance of her own education. “I went to law school for all the wrong reasons,” she confessed. But once at Harvard Law School, she found her passion. She realized that with a law degree she could truly make a difference in the world and help people.

Throughout her interview, Justice Kagan spoke in an understated way with sincerity and humor about her accomplishments–among them becoming the first female dean of Harvard Law and the first female Solicitor General of the United States. She offered a myriad of advice to an audience packed with law students hanging on her every word. She believes law students are “too risk averse” and too quick to say no to an opportunity because “that’s not in my plan,” noting that the best opportunities are the ones you didn’t expect. She never spent more than six years in a position because she has wanted to constantly be trying something new where the learning curve is steep. When asked by the moderator about her current job being a lifetime appointment, Justice Kagan joked, “well, it’s not like you can say ‘call back later’ to the President when he calls.” The audience erupted in laughter when she said she’s lucky she really likes her position serving on the High Court.

Justice Kagan began discussing her tenure as the junior Justice on the Court with a story about frozen yogurt. When she first arrived, she was asked to serve on the committee overseeing the Court’s cafeteria. Her first order of business was to secure a frozen yogurt machine for the cafeteria. She soon became known as the “frozen yogurt Justice.”

All jokes aside, Justice Kagan could not have spoken more highly about her colleagues on the Court. She noted that you can never take anything personally because you have to have good relationship with your colleagues and work with them on the next case. She described her colleagues as “committed and working in good faith.” And as much as “you’d like to win out of competition,” every justice is “trying to get it right as much as you are.” She reminisced about her relationship with late Justice Scalia by saying “he truly was my buddy.”

Perhaps the best part of her interview, was when the moderator asked Justice Kagan what she would would like her legacy to be. “Oh, the legacy will take care of itself,” she answered. “I’ll leave that to other people.” All she wants to do is “give it my all, work as hard as I can on every case to get it right, and have a high standard for my work.” She insisted that the key to great career is to find something that makes you “eager to go to work because it’s challenging.” Find something that “strikes you as meaningful, exciting, and fun.”

OT 2016, Weekly Roundup

Weekly Roundup – November 4, 2016

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This week, the Court heard five oral arguments. On Monday, the Court was presented with two cases: Fry v. Napoleon Community Schools and Star Athletica v. Varsity Brands. On Tuesday, the Court analyzed State Farm Fire & Casualty v. U.S. ex rel Rigsby and SCA Hygiene Products v. First Quality Baby Products. And on Wednesday, the Court listened to Venezuela v. Helmerich & Payne International. Of these cases, Star Athletica, and Venezuela are particularly interesting.

In Star Athletica, controversy erupted over cheerleader uniforms and whether copyright law protects the Varsity Brand’s uniform designs from being copied by Star Athletica.

Varsity Brands contends their uniform designs are protected from being replicated by Star Athletica because, though they are “useful articles” as defined by 17 U.S.C. § 102(a)(5), they qualify for copyright protection because they are “pictorial, graphic, and sculptural works.” Star Athletica contends that the uniform designs pertain to the utility of the uniforms; when an object’s design pertains solely to its function, it is not typically eligible for copyright protection. Adam Liptak of the New York Times provides an analysis of Monday’s argument, noting Justice Sotomayor’s observation that this case could have an impact on “knock-off” merchandise. Mark Walsh at SCOTUSblog likened the oral arguments to an episode of “Project Runway” when he analyzed the justices’ lines of questioning about whether ertain design elements of the uniforms could be copyrighted.

In Venezuela, the Court questioned whether the current standard for determining if U.S. courts have jurisdiction over a lawsuit against a foreign government is sufficient, or if a more substantial standard should be applied. Though lawsuits against foreign governments typically cannot be brought in U.S. courts under the Foreign Sovereignties Immunities Act, its “expropriation” exception means foreign governments can be sued if they illegally seize property with a commercial tie to the United States. In this case, Venezuela argued for a motion to dismiss for lack of jurisdiction because the exception does not apply and U.S. courts have no jurisdiction to hear the case. Currently, the standard applied to determine if a suit filed against a foreign nation will survive a motion to dismiss for lack of jurisdiction is simply to determine if the suit is “frivolous” or “insubstantial.” Amy Howe at SCOTUSblog provides an analysis of Wednesday’s argument and describes the justices’ concern about how the outcome of this case might impact foreign relations into the future.

In other Court news, on October 28, the Court granted the petition for Gloucester County School Board v. G. G. This case discusses whether Gloucester School District committed a sex discrimination-based violation of Title IX when school officials refused to let Gavin Grimm, a transgender student, use the school restroom that corresponded to his gender identity. The issue at hand includes whether or not the Department of Education has correctly interpreted Title IX to extend to protect transgender students.

Dahlia Lithwick of Slate addresses how the future composition of the Court will have negative implications for abortion rights, specifically due to pledges from Senate Republicans to stonewall any nominees from a Democratic president. Recent comments from Sen. Richard Burr (R-NC) suggest heavy resistance in the Senate to any future nominee from a potential President Clinton, stating: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” The three oldest members of the Court, Justices Breyer, Ginsburg, and Kennedy all voted in favor of abortion rights in Whole Women’s Health v. Hellerstedt last June, and Ginsburg and Breyer have voted to protect abortion rights;  Lithwick argues that future openings following their departure could dramatically shift how the Court votes on abortion rights because of  the Republican Senate refusal to confirm any nominees from a Democratic president.

Adam Feldman at Empirical SCOTUS provides a quantitative analysis of gender balance in the Supreme Court, finding that for the first time in Supreme Court history, more women spoke than men in oral arguments, finding that during arguments for Venezuela, six women spoke as opposed to four men.

Finally, Alice Miranda Ollstein from Think Progress discusses how a recent Court decision not to stay enforcement of some Ohio laws in a lawsuit from the Northeast Ohio Coalition for the Homeless could have an impact on the upcoming election. The suit sought to challenge an Ohio election law that allows the state to throw out any provisional ballot with minor errors or deviations from state record (i.e., if the voter signs his name “Bill” but the state record has him as “William”) By rejecting this request for emergency relief, the Court has allowed this policy to persist, meaning thousands of ballots could potentially be rejected in Ohio. CNN discusses this issue further, here.

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History of the Court, This Day In Supreme Court History

This Day in Supreme Court History—November 3, 1884

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On this day in 1884 the Supreme Court held in John Elk v. Charles Wilkins that a Native American born in the United States could be denied the right to vote.

In 1880, John Elk, a Winnebago Indian, tried to register to vote in Omaha, Nebraska. Charles Wilkins, the local registrar of voters, denied his application. Elk brought suit against Wilkins, arguing that (a) he was a citizen under the Fourteenth Amendment, because he had been born in the United states and had renounced his allegiance to his tribe; and (b) as a citizen, the Fifteenth Amendment guaranteed him the right to vote.

On Nov. 3, 1884, in a 7-2 decision, the Supreme Court ruled  against Elk. “The question,” wrote Justice Horace Gray for the Court, “is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution.” Gray conclude the answer to this question was no. Under the original Constitution, tribal members “owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian.” The only way a member of an Indian tribe could become a citizen of the United States was through the naturalization process. And the passage of the Fourteenth Amendment, Gray concluded, did nothing to change this.

The national legislation has tended more and more toward the education and civilization of the Indians, and fitting them to be citizens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself.

Justice John Marshall Harlan wrote a dissent that concluded with the kind of ringing racial egalitarian rhetoric that made him famous as the “Great Dissenter” of his era:

If [Elk] did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the Fourteenth Amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it, and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.

It would not be until 1924 that Congress extended citizenship to all Native Americans born in the United States.