Weekly Roundup, September 25, 2015

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In anticipation of Pope Francis’ visit, the National Law Journal wrote about the times the Pope has been mentioned in Supreme Court cases over the last sixty years.

Noah Feldman wrote about Chief Justice Roberts’ lonely position on Bloomberg View: “Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It’s admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it’s unenviable because, in an era of activism, it wins you nothing but enemies on both sides.”

“You should be upset because [the Supreme Court Justices] are making a new Constitution and they are terribly unrepresentative of the country,” Justice Scalia said on Tuesday at Rhodes College.  Scalia also predicted the Court would strike down the death penalty.

The Economist reports that  Apple intends to ask the Supreme Court to review a ruling by a federal appeals court regarding their entry into e-book sales in 2010.

A Reuters analysis indicated that state supreme court “Justices chosen by voters reverse death penalties at less than half the rate of those who are appointed.”

Remembering Yogi Berra (and Earl Warren)

On April 5, 1979, the New York Times ran on its Op-Ed page a piece by Yale Law Professor Robert Cover titled “Your Law-Baseball Quiz.” Each of the six questions began with the name of a Supreme Court Justice, followed by a list of four Major League Baseball players. The object of the quiz was to “identify the baseball player who bears the same relationship to baseball as the justice bears to law.” The justice for the first question was Chief Justice Earl Warren; the correct ballplayer answer was longtime Yankee catcher Yogi Berra. (Berra died yesterday at age 90.)

Here is Cover’s perfect explanation:

Both Warren and Berra were enormously effective performers on teams with many stars. Despite the presence of players such as Mantle, Maris, Frankfurter, Douglas and Black in the same lineup—all of whom appeared to have a more elegant swing or style—Berra and Warren were the truly most valuable players. Both would frequently swing at bad pitches, but both were capable of hitting them for extra bases, especially in the clutch. Both saw through excessive thought to the true essence of their game:

“Theorists beset us with other definitions of law . . . . But the idea of justice survives all such myopic views, for as Cicero said, ‘We are born to it,’” said Warren. Or as Yogi said more succinctly, “How can you think and hit at the same time?”

Justice Breyer’s New Book on the Controversy over Citing Foreign Law

Most of Justice Breyer’s newly released book, The Court and the World, deals with cases in which the Court is required to engage with foreign nations and foreign law.  These cases, Breyer writes, “show how routinely American interests extend beyond the water’s edge, obliging the Court, in turn, to extend its range of legal and practical reference beyond what has been its custom, in order to arrive at sound judgments.”  Only after a couple hundred pages on this issue, and then only in a brief chapter he labels a “Postscript,” does Breyer turn to the controversy over considering foreign law as aid in interpreting domestic law, particularly the Constitution.  Breyer seeks to distinguish this controversial issue from a discussion of the inevitable engagement of the Supreme Court with foreign law and practices.  “Although this argument has seemed to occupy the foreground in political discussions about the role of foreign law,” Breyer writes, “it turns out to prove relevant to only a small part of that role.”

So it is only with apparent reluctance that Breyer shifts his focus from those cases in which engagement with foreign law is unavoidable to those cases in which engagement is the product of a choice on the part of a justice.  He mentions Justice Kennedy’s reference to the U.S. “stand[ing] alone” in the world in its use of the death penalty against minors—a practice that the Court struck down in 2005 as a violation of the Eighth Amendment.   He also mentions Justice Kennedy’s references to foreign nations’ rejection of punishment for same-sex sodomy in Lawrence v. Texas.  These references to foreign law as a tool for interpreting the Constitution drew the criticism not only of the dissenters in these cases, but also of members of Congress, where there were efforts to pass legislation prohibiting this kind of use of foreign law.

Breyer offers a gentle rebuttal to these critics.  Referencing foreign law can serve as a tool that “can help judges produce better decisions without constraining their decisional autonomy,” he explains.  “Judicial decision making, particularly in the Supreme Court, is not a mechanical effort at applying clear legal rules to new factual situations.  The task is more appropriately seen as a kind of problem solving.” The experience and thoughts of others, including judges in foreign lands, may prove informative in that problem-solving task.  Furthermore, turning to foreign law as an aid in interpreting domestic law is nothing new in the American judiciary, a point Breyer supports by citing examples from throughout the twentieth century.

Breyer argues that when these controversial but relatively rare instances when the Court cites foreign law to support an interpretation of the Constitution are placed in the context of the real subject of Breyer’s book—cases involving treaties, the foreign reach of U.S. law, or questions of U.S. jurisdiction over foreign activity in which engagement with is unavoidable—they appear more routine.  The Court must regularly, by necessity, deal with foreign law.  It never has been and never can be a “hermetically sealed legal system.”  The heat of the debate over referencing foreign law dissipates once this fact is fully appreciated, Breyer contends.  

In concluding his “Postcript” on foreign citations, Breyer attempts to turn the tables on his critics.  Rather than worrying about protecting the sovereignty of the U.S. legal system from foreign influence, American jurists should be thinking about ways to spread the influence of American law to foreign legal systems.  Judges who acknowledge the work of foreign courts will be serving this cause.  Breyer thus frames his call for greater attention to foreign law on not only a cosmopolitan sensibility or intellectual generosity—values that are unlikely to move his critics—but also on national self interest.  The Court and the World offers a persuasive argument that, in an increasingly interdependent world American self interest, is served by a greater judicial understanding of foreign law.  Whether this same argument will persuade critics of references to foreign law in decisions involving the interpretation of the U.S. Constitution is another story, however.

Weekly Roundup, September 18, 2015

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Linda Greenhouse reviewed Sisters in Law, the story of Justices Sandra O’Connor and Ruth Ginsburg, for the New York Times.

The U.S. Supreme Court was an important subject In Wednesday night’s Republican presidential debates. According to Senator Lindsey Graham, “We have to win this election. The court’s at stake. It is the most important reason for us to turn out, to make sure we don’t lose the judiciary for decades to come.”

Although an appeal regarding Virginia’s solitary confinement policy is ripe for examination, the justices have to weigh “whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.”

The Cato Institute released its annual Supreme Court Review for 2014-2015.

Justice Ruth Ginsberg will be guest hosting WMFT’s midday programming on Monday at 10 AM: “Justice Ginsburg, a well-known opera aficionado, will discuss Opera and the Law with Lisa Flynn, during which the singers will present operatic excerpts with legal scenes.”

Justice Breyer’s Big Week

In SCOTUS news, this is Justice Breyer week.  Everywhere one looks, there he is—NPR, the Wall Street Journal, the New York Times, Colbert’s new late show.  The cerebral justice has a new book out, titled The Court and the World.  It is Breyer’s third book aimed at a general audience and he wants to talk about it.   Here is a brief roundup of Justice Breyer’s big week in the media.

Breyer published an op-ed in the Wall Street Journal titled “The Supreme Court in an Interdependent World,” in which he summarized the key points of his book.  Recent debates over Supreme Court citations to foreign law, he argues, is largely a distraction from the real issues involving the Court’s engagement with foreign law.  “Global interdependence increasingly is changing the work of the Supreme Court,” whether we like it or not.  Breyer concludes: “In the multipolar, mutually interdependent world, the best way to advance the values that the Founders set forth—democracy, human rights and widespread commerce—is to understand, to take account of, and sometimes to learn from, both legal and relevant nonlegal practices that take place beyond our shores.”

In the New York Times, Yale law professor John Fabian Witt wrote an appreciative review of Breyer’s “lucid” book.

Breyer contends that events in the world have effectively resolved the foreign law controversy. Playing the judge as enlightened modern technocrat, he offers a reasoned elaboration of the mounting costs that judicial isolationism would entail in our increasingly interconnected world. Globalization, he argues, has made engagement with foreign law and international affairs simply unavoidable.

“Breyer’s fiercest critics will most likely be unmollified,” Witt recognizes. “But democracy has never been a nativist straitjacket. Breyer’s book offers a powerful description of the price we would pay for allowing it to become one.”

NPR’s Nina Totenberg has an interview with Justice Breyer, which you can listen to here.  “There’s a tremendous thirst for knowledge about the court,” Breyer said in an interview with USA Today’s Richard Wolf.  His book “is not just for lawyers and judges,” Breyer explained.  “It is for people interested in how their lives are being changed by what’s happening in today’s world.”  

Tony Mauro interviewed the justice for the National Law Journal (story here; full interview here).  Breyer talked not only about his book but also about the previous term at the Court.  On his dissent in the lethal injection case, Glossip v. Gross, in which he gave a strong case for the unconstitutionality of the death penalty, Breyer explained:

I have been working on it for a while. This case was there and it seemed an appropriate place to say what I thought on the issue. I thought we should use that case, as I said in the opinion, to go into the basic problem here, which I thought was whether the death penalty itself is constitutional and I have my reasons.

In the Washington Post, Supreme Court reporter Robert Barnes interviewed Breyer.  On the controversy over looking to foreign law when interpreting the Constitution, Breyer noted the long history of U.S. judges looking abroad for guidance.  According to Breyer, the first time a citation to foreign law became a target for criticism was 1988, when Justice Scalia raised the issue in a dissent in a death penalty case.

For a profile in the New York Times, Adam Liptak interviewed Breyer in his home office in Cambridge (“cluttered and lived in, it bears signs of a restless intellect and a doting grandfather”).  “The world we’re operating in,” Breyer told Liptak, “is one in which by and large everyone believes you have to know something about what’s going on abroad.” Understanding legal practices outside the U.S., the Justice insists, “will help us think about our system.”  

And then there is the Colbert interview.  In his interview with Tony Mauro, Breyer explained his decision to go do the Colbert interview:

He has a serious news show. The publisher of this book is anxious, and I am not against, giving the book some publicity by talking seriously about it and he wants to talk about it seriously. Fine. I will do that for a couple of weeks and then I will go back to my regular job.

He is more interested in news. It is not a comedy show in particular. If he is interested in talking seriously about the book, fine. This is a serious news program actually. My publisher told me. I have not talked to him. I have just talked to the publisher, whom I trust.

If this is what Breyer expected, he was surely disappointed with his Colbert experience.

Colbert followed a very funny introduction, in which he noted that only 3% of Americans could identify Justice Breyer, with a light-hearted and not particularly substantive interview.  Colbert’s interview with “the man inside the muumuu” touched on, among other topics, cameras in the courtroom and the collegial relations among the justices.  One topic not discussed (at least not in the aired interview) was Breyer’s new book.  

In post-interview commentary, Matt Ford in the Atlantic described the interview as a “missed opportunity” for Breyer and Colbert to discuss more pressing legal issues.  In the Washington Post, Eric Wemple critiqued Breyer’s efforts to defend the Court’s refusal to allow video coverage of oral argument.

One imagines that after this week, Breyer will be happy to get back to his day job.

Weekly Roundup, September 11, 2015

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FindLaw’s examined the financial impact of Supreme Court decisions based on a recent report by Chicago-Kent Professor Dan Katz and others.

On Tuesday, Kim Davis was released from jail under orders “not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.”

CNN’s Ariane de Vogue predicts that future appointments to the Supreme Court will feature prominently in the 2016 presidential campaign.

A federal trial judge has opened up the potential for a lawsuit by the House of Representatives, claiming “the Obama administration is spending billions of dollars on the new health care program without Congress’s permission to do so.”

Sonia Sotomayor gave talks at the Springfield Public Forum’s 80th anniversary and at the Holyoke Public Library. “Working together, we can become, or try to become, a more perfect union,” she said. “As a society, we can correct ourselves.”

Judge Posner’s new book includes a discussion of the Supreme Court’s diversity problem.

Weekly Roundup, September 4, 2015

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On Monday, the Supreme Court refused to allow county clerk Kim Davis in Kentucky to deny marriage licenses to couples. Later in the week, ISCOTUS director Chris Schmidt weighed in on Kim Davis’ defiance and subsequent jailing.

A group of several Texas doctors and clinics requested that SCOTUS review an earlier ruling restricting their procedures. From the petition: “This case will determine whether Texas can force more than 75 percent of the state’s abortion clinics to close by enforcing a pair of statutory requirements that serve no valid state interest.”

On Thursday Rick Garnett commemorated Chief Justice William H Rehnquist, who passed ten years ago.

A study shows how Supreme Court Justice Clarence Thomas’ word choice reflects his position and role in court.

Justice Sonia Sotomayor took part in a 2-hour conversation at the University of Notre Dame. Regarding her judicial philosophy, she said, “I have always tried to approach the law as a learning process, as one of trying to understanding how other people have approached particular questions. I believe that people really expect the law to have some fixed meaning that gives them some measure of comfort in their human relations.”

At the end of this month, the Supreme Court justices will hold their Long Conference, “where appeals go to die.”

Defying the Court

There was not much mystery as to how this one was going to turn out. Kim Davis’ legal arguments for why she should not be required to follow the Supreme Court’s same-sex marriage ruling were paper thin. They got her nowhere. The only real question was whether the Kentucky county clerk was going to back down when her legal appeals were exhausted. She did not. On Monday the Supreme Court refused Davis’ request for an extension of a stay on a court order that commanded her to start issuing marriage licenses (her refusal to follow the Court’s requirement to recognize same-sex marriage led her to refuse to issue any marriage licenses). And Davis, with the eyes of the nation upon her, stood her ground, denying a request for a marriage license by a local same-sex couple. Now she has been held in contempt of court. The federal district judge who issued the contempt order said she would be placed in jail until she agreed to comply with the court order and start issuing marriage licenses.

Although the outcome of this particular episode of defiance against a Supreme Court ruling was predictable, it is worth noting that historically resistance to the Supreme Court’s mandates can often be quite successful. There have been highly publicized acts of defiance that have successfully evaded Court rulings for extended periods of time. In the Court’s modern era, the most famous example was white Southern resistance to Brown v. Board of Education, a campaign that resulted in the Court’s school desegregation ruling having a practically null effect in the Deep South for a decade following the Court’s ruling. There have also been lower profile patterns of defiance against Court rulings, such as the massive noncompliance with the Court’s prohibition on school prayer in its 1962 Engel v. Vitale decision.

The reason why Obergefell v. Hodges will not face anything approaching the same kinds of implementation problems as, say, school prayer or school desegregation, even in the face of considerable resistance to the Court’s holding, has to do with the mechanism of implementation. While Kim Davis is hardly the only local clerk who has been moved to refuse to abide by the Court’s ruling, resisters can be readily identified. Officials responsible for issuing marriage licenses are not so many in number and not so spread out across the country that individual acts of defiance will fall under the radar, as in the school prayer situation. And compliance and noncompliance are easily identified (are same-sex couples receiving marriage licenses or not?), which differentiates the situation from the problem with token compliance that ground the process of school desegregation to a near halt in much of the South following Brown.

Religious Liberty and Resistance to Same-Sex Marriage

The next wave of litigation involving same-sex marriage is now underway.   In the wake of the Supreme Court’s ruling last June striking down same-sex marriage bans across the nation in Obergefell v. Hodges, various individuals have been claiming a constitutional right to continue resisting same-sex marriage. At the core of these cases is what Justice Thomas in Obergefell described as an “inevitable” conflict between the assertions of religious liberty by those who oppose same-sex marriage and the Court’s recognition of a constitutional right to same-sex marriage.

Kim Davis, the county clerk for Rowan County, Kentucky, opposes same-sex marriage on religious grounds. When Kentucky’s governor, in response to the Court’s Obergefell ruling, issued an executive order requiring county clerks to start issuing marriage licenses to same-sex couples, Davis suspended issuing any marriage licenses in Rowan Country. Anyone in Rowan County who wanted to get married this summer had to get their marriage license in another Kentucky county. Several same sex-couples challenged Davis’s actions, and a federal district judge ordered Davis to start issuing marriage licenses. The judge stayed the injunction while Davis appealed the case. After a federal appeals court refused to extend the stay of the injunction so the appeals could play out, Davis’ lawyers turned to the U.S. Supreme Court. Yesterday, the Court refused to stay the injunction, which is about to expire.

In her petition to the Supreme Court, Davis’ lawyers explain that “Davis’ conscience forbids her from approving a SSM [same-sex marriage] license…. She holds an undisputed sincerely-held religious belief that marriage is a union between a man and a woman, only. Thus, in her belief, SSM is not, in fact, marriage.” To sign a marriage certificate for a same-sex couple, the petition argues, would be a “searing act of personal validation [that] would forever, and irreversibly, echo in her conscience—and, if it happened, there is no absolution or correction that any earthly court can provide to rectify it.” To deny her what her conscience demands would mean “elected officials have no real religious freedom when they take public office.”

Long on this kind of passionate rhetoric, Davis’s legal argument was weak, and few could have been surprised when the Court refused to issue the stay her lawyers requested. Although the Court regularly struggles over the conflicts between government regulation and religious freedom when it comes to private individuals (as in last term’s prisoner beard case) and businesses (as in the recent Hobby Lobby case), these issues are less difficult when the conflict is between a legitimate government policy and a public official whose job is to implement that policy. And when the government policy being resisted is a constitutional ruling of the Supreme Court itself, well, then the writing is on the wall.

The Supreme Court will continue to have opportunities to revisit the same-sex marriage case as individuals initiated challenges based on religious liberty claims. And many of these will have more stronger legal grounds than Davis’ claim. Opponents of same-sex marriage note that the Obergefell opinions were filled with respectful references to religious opposition to same-sex marriage. In his opinion for the Court, Justice Kennedy wrote, “[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Chief Justice Roberts wrote of the “[m]any good and decent people [who] oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion.”

The Supreme Court has clearly not heard the last of this issue.

 

Julian Bond’s Day at the Supreme Court

Julian Bond, the legendary civil rights activist who died on Sunday at age 75, had his day at the Supreme Court on November 11, 1966. The previous year he had easily won his race for a seat in the Georgia House of Representatives, but his new colleagues refused to seat him. Bond, a self-described pacifist, had been openly critical of the Vietnam War and the draft; he had expressed sympathy for those who refused to join the military. Georgia House members cited these statements as disqualifying him to serve. They claimed Bond’s statements prevented him from being able to swear his allegiance to the state and federal constitutions, which were requirements of serving in the legislature. Bond challenged his exclusion in court. He lost his first round when federal district court held that in refusing to sear him the House had not denied Bond of his constitutional rights. As his court battle dragged out over the following two years, eventually landing before the U.S. Supreme Court, Bond’s constituents elected him to the House two more times. Each time, the Georgia House refused to seat him.

 

At oral arguments in the Supreme Court in November 1966, with Bond watching from the front row of the audience, the justices were clearly concerned with the limits of federal judicial oversight of state legislative authority to define its membership. Yet this discomfort was more than balanced by their frustration with the sweeping arguments of the Georgia Attorney General, who was representing those opposed to Bond taking his seat. “Is that all you rely on?” asked an irritated Justice William Brennan after the lawyer read Bond’s statements criticizing the Vietnam War. Brennan questioned whether these statements amounted to the declared commitment to violating the law and disobeying the Constitution that the lawyer claimed they did. Justice Abe Fortas suggested that the lawyer’s arguments came “perilously close” to defining any opposition to the Vietnam War as an adequate basis for exclusion from the state legislature.

 

In Bond v. Floyd, Bond won in a unanimous decision at the Supreme Court. The Court, in an opinion by Chief Justice Earl Warren, held that the Georgia legislature had violated Bond’s First Amendment rights. “While the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government,” Warren wrote, “surely the oath gives it no interest in limiting its legislators’ capacity to discuss their views of local or national policy.” Bond would serve in the Georgia House of Representatives until 1975, and then in the Georgia Senate until 1987.