All posts by Chris Schmidt

Appointments, Justices, Kavanaugh, Politics

An International View of the Supreme Court Confirmation Process

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 This guest post is by Patricia Villa Berger, a J.S.D. candidate at Chicago-Kent College of Law.

The debate over Brett Kavanaugh’s confirmation to the Supreme Court captured the nation’s attention. Political analysts and legal experts studied this story from the perspective of party politics, the upcoming midterm elections, gender relations, judicial virtues and temperament, standards of proof in a confirmation hearing proceeding versus a criminal trial, and the role of the FBI in the confirmation process. They have also evaluated the potential impact of Kavanaugh’s appointment on the development of case law in controversial areas such as reproductive rights, campaign financing, executive powers and immunities, voting rights, and religious freedom.

Often lost in this high-stakes drama are the distinctive rules that govern the confirmation of Supreme Court justices in the United States. These rules can make the process more efficient and transparent, or they can incentivize conflict and politicization—and thereby endanger the legitimacy of the Supreme Court as an impartial arbiter. The U.S. could learn from other countries that take much different approaches to appointing their Supreme Court justices.

Consider what might seem an unlikely model: Mexico. Though Mexico has a long history of authoritarianism, its recent efforts to consolidate democractic governance have forced political actors to tailor its appointment rules in a way that balances power between the Court and the legislative and executive branches.

Under the Mexican Constitution, the President nominates three candidates, each of whom are reviewed and voted upon by the Senate. This process allows the Senate to compare candidates, weigh their credentials, evaluate their temperaments, and assess their views on the most pressing legal issues through public hearings. Any nominee who receives a two-thirds majority of the present members of the Senate is appointed to the Supreme Court.

In adddition, the Mexican Constitution allows for the possibility that the Senate will not approve any of the three nominated candidates. If the Senate does not vote within 30 days of submitting the list of candidates to the Senate, the President has the power to directly appoint one of the candidates in the list submitted. If the Senate rejects the list of candidates (and this has happened), the President must submit a new list. If the Senate rejects it again, then the President has the power to directly appoint one of the candidates from the second list submitted.

Another aspect worth mentioning, though not strictly pertaining to the confirmation process, is the length of appointments for justices. The Mexican Constitution limits the service of justices to 15 years. This gives the members of the Supreme Court considerable independence while also allowing for a regular pattern of renewal in its 11 members.

Mexico offers just one example among many around the world of alternative confirmation processes that would avoid the kind of hyper-partisan showdown we saw with the Kavanaugh nomination.

In the United Kingdom, for example, anyone who meets the job requirements can apply to serve on the Supreme Court. A selection commission of representatives from the different legal jurisdictions of the UK evaluates candidates and sends its nomination to the Lord Chancellor. If approved, the nomination goes to the Prime Minister, who then forwards the name to the Queen.

In Chile, the President picks a nominee from a list of five candidates submitted by the Supreme Court itself. Justices require approval by two-thirds of the Senate. In both the UK and in Chile, justices serve during good behavior until a mandatory retirement age of 75 years.

Note that none of these countries allow for direct nominations by the Executive branch, and none have lifetime appointments for judges. Those that include legislative review mandate a super-majority vote for approval to the Court.

No set of rules can assure a civil, substantive appointments process. Politicians and lawyers always find way to bend rules to their advantage. But at least rules of this kind provide a better ground to shield a Supreme Court from a saga such as the one we recently witnessed.

Appointments, Justices, Politics

Defending the Supreme Court—The Justices Speak Out

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In the wake of the highly contentious confirmation hearing of Justice Kavanaugh, the Justices are speaking out about the importance of the Supreme Court’s independence from politics.

Image result for chief justice roberts minnesotaAt an event last week at the University of Minnesota Law School, Chief Justice John Roberts made a point of saying that he wanted to discuss “events in Washington in recent weeks.”  “Our role is very clear: We are to interpret the Constitution and laws of the United States, and to ensure that political branches act within them,” Roberts explained. “The story of the Supreme Court would be very different without that kind of independence.  Without independence, there is no Brown v. Board of Education.”  The justices, Roberts stressed, “do not serve one party or one interest, we serve one nation.”

Last week, Justice Clarence Thomas spoke in Covington, Georgia, at a dedication ceremony for an addition to the county courthouse, and he too emphasized the need for the Court to remain apart from politics. “It is becoming increasingly common for public opinion to galvanize behind particular outcomes and around particular interests without regard for the law or an objective assessment of facts,” he warned. “In our great country, the judiciary is not a puppet for those in power, nor is it the engine for pioneering social change. Rather, it is a safeguard against tyranny, and an assurance of neutral arbiters for those seeking the protection of the law.”

Justice Elena Kagan also recently spoke about the public perceptions of the Court. In  remarks at a Princeton University conference earlier in the month, she warned of the consequences of a Court that the American people see as a partisan institution. “In the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn’t predict in that sort of way,” she explained. As a result, the Court looked “as though it was not owned by one side or another and was indeed impartial and neutral and fair.” She worried that this “sort of middle position” may be gone. Kagan emphasized this concern: “I think especially in this time when the rest of the political environment is so divided, every single one of us has an obligation to think about what it is that provides the Court with its legitimacy.”

Justice Sonia Sotomayor, who also attended the Princeton event, echoed Kagan’s comments. “We have to rise above partisanship in our personal relationships,” she said. “We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share.”

The Justices are speaking out in defense of the Supreme Court at a time when many believe its authority is at risk. Numerous commentators have predicted that the appointment of Kavanaugh has precipitated a legitimacy crisis for the Court.

According to Gallup polls, public confidence in the Supreme Court has been in decline since the 1970s. The percentage of the American public who have a “great deal” or “quite a lot” of confidence in the institution is currently in the thirties, down from the high forties to low fifties in previous decades. The significance of these numbers is not self-evident, however, since public confidence in most political and social institutions has dropped in recent years. In March, a Pew Research poll found that two-thirds of the American people viewed the Court in favorable terms.

In the coming years, scholars will be trying to assess the long-term impact of the Kavanaugh hearings on attitudes toward the Supreme Court. Meanwhile, the justices keep busy making the case for the value of an independent judiciary.

 

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-Directors and Chicago-Kent Faculty Members Christopher W. Schmidt and Carolyn Shapiro.

Confirmation Hearings, Justices

Roberts Transfers Kavanaugh Ethics Inquiry to the 10th Circuit

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The Supreme Court’s newest member, Justice Brett Kavanaugh, continues to make the news. Within days of his confirmation as an Associate Justice of the Supreme Court, Chief Justice Roberts granted a request to transfer a series of ethics complaints against Kavanaugh to the Tenth Circuit. The D.C. Circuit Court of Appeals initially received the complaints, but Judge Karen LeCraft Henderson invoked Rule 26 of the Federal Court’s Rules for Judicial-Conduct and Judicial-Disability Proceedings, which gives a chief judge the authority to request the Chief Justice to transfer a case for judicial misconduct to another Circuit for further review. (The chief judge of the D.C. Circuit is Merrick Garland, President Obama’s nominee to fill Justice Scalia’s seat after his death. The Senate refused to consider the nomination. Judge Garland recused himself from reviewing the complaints against Kavanaugh.)

Many of the claims were dismissed based on a frivolousness, but twelve remained credible enough to warrant further investigation—prompting the request that Chief Justice Roberts transfer the complaints to another Circuit. Judge Henderson wrote in a public statement last week, “[t]he complaints seek investigations only of the public statements he has made as nominee to the Supreme Court of the United States[.]” Nonetheless, circuit officials cited “concern that local disposition may weaken public confidence in the process.”

Forbes Senior Contributor Steven Denning has written several articles on the ongoing ethics complaints, citing Kavanaugh’s partisan remarks, misstatement of fact about his background, and general behavior during the confirmation hearings as the reasoning behind the allegations. Justice Kavanaugh himself admitted in a Wall Street Journal opinion piece on October 4th that he regretted making several statements during the final day of his confirmation hearing on September 27th (when the Judiciary Committee considered Christine Blasey Ford’s allegations that he had sexually assaulted her while in high school), although he was not specific about which statements he regretted.

The questions that likely remain before the Tenth Circuit are whether Justice Kavanaugh’s actions at the September hearings violated the code of judicial conduct and what would be appropriate discipline if a violation is found. Professor Stephen Gilles of NYU Law stated, “violation of the Code does not disappear because [Kavanaugh] is now on another federal court.” The code explicitly forbids judges from making “inappropriate partisan statements” in public. Furthermore, the code evaluates intent, severity, ongoing patterns, and effects of a judge’s statements.  

Denning stated in his Forbes article this week that there are four possible courses of action that Chief Judge of the Tenth Circuit Timothy Tymkovich could take regarding Kavanaugh’s ethics complaints: (1) dismissal, (2) voluntary corrective action, (3) intervening events, and (4) referral to a special committee of judges.

Dismissal on the common grounds for dismissal, like jurisdiction, disputes of fact, and substance, would be difficult in this case because Chief Justice Roberts referred the matter to the Tenth Circuit and the alleged misconduct occurred during a televised national event. Indeed, more than 2,400 law professors signed a letter urging the Senate not to confirm Kavanaugh due to his conduct at the hearing.* Others, such as syndicated columnist Ruben Navarrette Jr., writing in USA Today, wrote that Kavanaugh’s emotional testimony shouldn’t be disqualifying for the Supreme Court. Given public opinion on the matter – according to a poll by the Washington Post and ABC news (raw numbers here), 51% of Americans disapprove of Kavanaugh being on the Supreme Court while only 41% approve, and 53% of those polled said they would support another investigation into Kavanaugh – if Democrats take control of the House after next month’s elections, they may pursue that inquiry. If that happens, according to Navarrette, the time will have come for a national dialogue on judicial temperament, writing that judges with an “emotional streak” remind him that “they’re human” and “have a heart.” Citing the Larry Nassar case from earlier this year, Navarrette praised the judge, Rosemarie Aquilina, for “ripping [Nassar] to shreds” prior to sentencing him to prison for up to 175 years. So rather than thinking that emotion isn’t compatible with being a judge, Navarrette argues, it’s “an essential part of the job.”

Additionally, some of the other news about Justice Kavanaugh has devolved into triviality. For example, a group of witches announced that they would place a “hex” on Justice Kavanaugh as well as those who have committed sexual assault or perpetuate patriarchy this weekend in Brooklyn. The announcement prompted a response by a group of exorcists and Catholics who have a plan to “pray and fast, not just for the protection of Kavanaugh, but for those who wish him harm.” More here.

Written by ISCOTUS Fellows Michael Halpin and Eva Dickey, both of the  Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.

*Both Carolyn Shapiro and Christopher Schmidt, co-directors of ISCOTUS, signed this letter.

 

History of the Court, OT 2018, SCOTUS Fun Facts

Primer on Types of Filings in the Supreme Court

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The Supreme Court has a break from argument and from its scheduled Conferences for the next week or two. The Court is scheduled to release orders again on October 29, and on the same day will hear arguments in Henry Schein Inc. v. Archer and White Sales Inc.and Lamps Plus Inc. v. Varela. In the meantime, if you’ve ever wondered what the meaning of some of the terminology used in coverage of the Court’s orders, here’s a quick primer:

  •      Petition for writ of certiorari: a document that asks the Supreme Court to review the decision of a lower court. Almost all the Court’s cases come to it through “cert petitions,” as they are known, and it has total discretion over whether to grant them. Click here for more details on the content of a petition. And for more information on the historic development of the Court’s control of its own docket, see this piece by ISCOTUS Co-Director Carolyn Shapiro.
  •      When a petitioner motions for leave to proceed in forma pauperis, they are asking the Court to waive the normal filing fees and to allow them to file their petition for certiorari on regular paper instead of having it printed and put in booklet form.
  •      Amicus curiae is Latin for “friend of the court.” A person or group who has a strong interest in the matter of a given case, but is not a party to the case, may petition the court to ask for permission to submit a brief with the hopes of influencing the outcome of a case. Amicus briefs can be filed by organizations supporting either party to a case. For example, in Nielsen v. Preap argued on October 10, 2018 and discussed here, the Immigration Reform Law institute filed a brief in support of the government, while the National Immigrant Justice Center filed a brief in support of the immigrants who had won in the lower court.
  •      A petition for a writ of habeas corpus (Latin for “that you have the body”) is filed when a person has been convicted and is asking to come before the Court, usually when the person is challenging the legality of the laws that were used to convict them.
  •      A petition for writ of mandamus is filed when a party to a case wants the Court to order a lower court, government, corporation, or public authority to take action that the filling party alleges they are legally obligated to do.

Note: Both habeas and mandamus petitions filed directly in the Supreme Court are rarely granted, although the Court can review lower courts’ rulings on such petitions through its certiorari process.

Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro

Conference Report, Orders of the Court, OT 2018

Orders Lists: October 9 and 15, 2018

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Although the Supreme Court has held two Conferences since it began hearing oral arguments in October, it has not added any new cases to its argument docket for the Term. [Correction: it added one case on Friday, October 12. See here for details.] Indeed, the Order Lists from those Conferences were fairly uneventful. The Court denied certiorari in Brown v. United States, with Justice Sotomayor, joined by Justice Ginsburg, writing an opinion dissenting from the denial of certiorari. Brown argued that Johnson v. United States, in which the Court held in 2015 that the definition of “violent felony” in the Armed Career Criminal Act was unconstitutionally vague, should apply to his case retroactively. (You can read Brown’s petition here.) Justice Sotomayor wrote in her dissent:

“Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear. Because the Court nevertheless declines to do so, I respectfully dissent.”

In two other cases, the Court granted the petition for writ of certiorari, vacated the judgment, and remanded the cases in light of a recently issued opinion. (This procedure is commonly known as a “GVR,” for Grant, Vacate, Remand, and it is most common when the lower court opinion issued before the Supreme Court decision that is arguably relevant.) First, the Court remanded Hashimi v. United States to the United States Court of Appeals for the Fourth Circuit in light of the recent decision in McCoy v. Louisiana. McCoy held that if defense counsel concedes a defendant’s guilt over the defendant’s express objection, the defendant’s Sixth Amendment right to autonomy with his assistance of counsel is violated. Ahmad Hashimi’s lawyer conceded his guilt during closing arguments without first consulting his client and despite Hashimi’s insistence on pleading his innocence. Hashimi’s appeal in the Fourth Circuit was denied on January 22, 2018, and the McCoy opinion was released on May 17, 2018. Hashimi filed his petition to the Court on June 9, 2018. Read the petition here.

The Court also GVR’d Frazier v. U.S. to the lower court to for further consideration in light of Sessions v. Dimaya. Petitioner, Frazier, was convicted on two counts of assault with a dangerous weapon while being a part of a motorcycle group engaged in racketeering activity, and one count of using and carrying the firearm while participating in a crime of violence. One of the questions Frazier presented was whether the term “crime of violence” under the relevant statute, 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague. The Supreme Court vacated the judgment and remanded the case back to the Sixth Circuit to further consider it in the context of the recent decision in Sessions v. Dimaya which held a definition of “violent felony” to be unconstitutionally vague. Frazier’s petition is here.

Last week, the Court also remanded a case as moot. This case, Niang v. Tomblinson, involved two hair-braiders fighting Missouri’s requirement that they obtain a barbering or cosmetology license. The braiders claimed the requirement violated their Fourteenth Amendment rights, specifically their right to earn a living. (You can read more about their case at Forbes.) While the case was pending, however, the State of Missouri changed its law, and it no longer imposes such a requirement. The parties informed the Court of this development in a joint filing, and the Court ordered the case remanded and then dismissed as moot under United States v. Munsingwear. For more on a recent application of the doctrine of mootness in a pending cases, see this FindLaw post about Azar v. Garza, the case in which a undocumented teenaged girl in government custody sought an abortion.

The October 9 and 15 lists are available here and here.

Written by ISCOTUS Fellows Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and Breana Brill, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

Oral Argument Report, OT 2018

October 10 Oral Argument: Statutory Interpretation in Immigration Law and Tort Liability in Maritime Law

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On Wednesday, the Supreme Court heard oral arguments for two cases: Nielsen v. Preap and Air & Liquid Systems Corp. v. DeVries.

In Nielsen, the Court will decide whether immigrants, with prior criminal convictions, are exempt from mandatory detention if the Department of Homeland Security does not immediately take them into custody after their release. Currently, 8 U.S.C. § 1226 (c) provides that, upon conviction of a broad range of crimes, a noncitizen must be placed into immigration custody without a bail hearing following their release from federal or state custody. The Washington Post explains that Mony Preap, one of the plaintiffs in this class action suit, was convicted of two counts of possession of marijuana in 2006, and he was taken into detention by several years later. Preap was held for months without a bond hearing, although he was later released.

During oral arguments, the Trump administration contended that no time limitation should be placed on the government’s ability to detain noncitizens under this statute, which is the same way the Obama Administration interpreted the statute. The American Civil Liberties Union (ACLU) represented the plaintiffs and asked the Court to affirm the U.S. Court of Appeals for the Ninth Circuit’s ruling, which found that the government must act to detain noncitizens within a reasonable degree of immediacy of their release from state custody.

The parties and justices debated the language and structure of the statute, and they also discussed Congress’s intent in passing it and the real-world implications of the proposed interpretations. The New York Times reports that Justice Breyer displayed concern about the Trump administration’s position; he repeatedly asked if an immigrant could be detained for a crime fifty years after release from custody.  According to Slate, Justice Gorsuch, could be the “swing” vote on this case, and he pressed the issue by picking up Breyer’s line of questioning and adding “Is there any limit on the government’s power?” Breyer also suggested the solution was to give detainees a bail hearing so the government could limit detentions to those who posed a risk.  Justice Kavanaugh appeared to be of the opinion that Congress neither trusted the bail system nor intended to have a time limitation for the detentions. The Atlantic notes this case has implications for thousands of immigrants.

Air & Liquid Systems Corp. involves a group of Navy sailors, led by John DeVries, who were exposed to asbestos while working with equipment in a naval shipyard. The sailors died of lung cancer caused by asbestos exposure and their survivors sued several companies, including Air & Liquid Corp., which manufactured the equipment that later had asbestos containing materials added. However, the defendants never made, sold, or distributed the equipment with asbestos insulation, which was installed by a third party.  The plaintiffs claim the defendants failed to properly warn workers of the risks of asbestos. Since the injuries occurred at sea, maritime law governs this case.

Courthouse News Service reports that Justice Sotomayor pointed out that contained asbestos is perfectly safe and stated it was the defendants’ equipment which heated up and caused the asbestos to become dangerous.  She likened the situation to a car manufacturer being liable for producing a car with a leak in its engine. Upon questioning from Justice Gorsuch, the defense argued that providing additional warnings about asbestos on the equipment could lead to “over-warning” which would dilute the message of the warnings. Check out Jurist for more information on the arguments

Links to the transcripts of these cases can be found at the following links: Nielson v. Preap and Air & Liquid Systems Corp. v. DeVries

Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

 

Oral Argument Report, OT 2018

October 9 Oral Arguments: Questions about the Armed Career Criminal Act

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Tuesday, October 9 was Justice Brett Kavanaugh’s first day on the bench, and the Supreme Court heard oral arguments in two cases. (For a brief overview of these cases, click here.) As the New York Times reported, Chief Justice John Roberts began the day by welcoming the newest justice, stating “we wish you a long and happy career in our common calling.”

In the first case of the day, Stokeling v. United States, Stokeling had been sentenced under the Armed Career Criminal Act (“ACCA”), which imposes higher sentences for armed criminals who have previously been convicted of violent felonies. Stokeling’s primary argument is that a robbery charge under Florida law only requires slight force to overcome some form of resistance – “nothing more than the tightening of one’s hand momentarily on a dollar bill before releasing it” – and so should not automatically qualify as a previous violent felony under the ACCA.  Questions from the justices focused on line-drawing– exactly when forceful actions become substantial enough to be considered violent. Stokeling’s attorneys argued that the standard should not be a generic offense determination (e.g., all robberies are violent because they require some amount of force). Rather, the standard should be “a degree of force that is substantial enough to be reasonably expected to cause pain or injury in most cases;” a pinch or tap on the shoulder would not qualify, while shoving or hitting would. The appropriate test therefore would focus case-by-case on the perpetrator’s reasonable expectation of causing injury rather than on the actual injury sustained by the victim.

The Government argued that any time there is a physical struggle over a piece of property, however short-lived it may be, the act of overcoming the victim’s resistance should qualify as substantial force for a violent robbery – this is the common law definition of robbery, and was what Congress intended when it wrote robbery into the ACCA. The justices again focused on line drawing, specifically trying to pin down why bag-snatching, without more force than is necessary to remove the bag from a person’s hand or shoulder, should be considered “violent,” since SCOTUS had already decided (in Johnson v. United States) that the ordinary ldefinition of force should be used when trying to identify violent felonies. At times, the questioning from the Justices took a light tone, with Justice Sotomayor appearing to pinch Justice Gorsuch, and Chief Justice Roberts stating he has practiced wresting a dollar bill from a clenched fist with his law clerks, and regarding the force it takes, he remarked, “more than you might think.”

The Court also heard arguments in the consolidated cases of United States v. Stitt and United States v. Sims. Stitt and Sims were argued together as both cases involve the definition of burglary, as applied to non-permanent or mobile dwellings, for the purposes of an ACCA sentence enhancement. The Government argued that the Court should take a broad view of burglary – which at common law was aimed specifically at entering a dwelling – because over time states have “taken heed of the fact that people live in many different places.” Questions here focused on how a burglar would know that they were breaking into a “dwelling” if the statutes in question were broadly interpreted to include “anything capable of being lived in,” (for instance, a car) as the Government was advocating. The Government responded by arguing that a dwelling of this sort would need to be somehow “adapted for overnight accommodation,” a necessary limitation that would keep cars out of the definition of a mobile dwelling, even if someone occasionally sleeps overnight in their car.

The attorney’s for Stitt and Sims argued that the Court had already made clear that burglary under the ACCA could only be applied to buildings and structures, not vehicles, in Taylor v. United States (which created a “generic” definition of burglary for purposes of the ACCA). Using this definition, vehicles like RVs, sleeper vans, and sailboats with a sleeping compartment fall in the vehicle category because they are used for the primary purpose of transportation, with occasional or incidental overnight use. Further, “a core concept of criminal law is providing fair notice.” Therefore, someone breaking into one of these vehicles lacking “outward signs of current habitation” would not have fair notice that they were committing a burglary–the risk that the vehicle is occupied increases the chances of a violent altercation with the occupant–rather than simply breaking and entering, which is not included under the ACCA as a violent predicate crime.

The New York Times reports Justice Alito stated the Court has made “one royal mess,” out of the interpretation of the ACCA, and “maybe we ought to go back and correct our own mess.” Justice Kavanaugh, however, stated the law worked well in “typical” cases, such as when someone is repeatedly caught breaking into RV’s. He stated multiple convictions should put someone on notice that they “shouldn’t be possessing a firearm under federal law.”   

Written by Eva Dickey, ISCOTUS Fellow, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro

 

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.

Image result for justice kavanaugh

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.