First Amendment

Masterpiece Cakeshop Revisited?

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A petition for certiorari was filed with the Court on Friday that could allow the Justices to revisit the question presented in the Masterpiece Cakeshop case from last year. The petition comes from Oregon, where the state has an anti-discrimination law, the Oregon Equality Act, which prohibits discrimination on the basis of sexual orientation (among other characteristics) by businesses open to the public. Petitioners (the Kleins) owned Sweetcakes by Melissa, a bakery in suburban Portland that has since shut down. The bakery refused to bake a cake for the wedding of a same-sex couple, claiming that doing so would violate their religious beliefs. The couple filed a complaint with the Oregon Bureau of Labor and Industries, which found the bakery to be in violation of the anti-discrimination law and awarded the couple $135,000. The bakery appealed the agency decision to the state appeals court, which rejected the appeal. The Oregon Supreme Court declined to hear the case. Sweetcakes filed their case with the Supreme Court Friday.

In the petition, Sweetcakes argues that in Masterpiece Cakeshop there was uncertainty about whether the baker refused only to create a custom cake or instead refused to sell any cake to a same-sex couple. In contrast, Sweetcakes makes only custom cakes, and it refused to make a cake for a same-sex couple’s wedding, although it had previously sold a cake to the same couple for the wedding of the mother of one the partners. The petition notes the Oregon Appeals Court recognized this distinction and recognized the cake as an artistic expression. Nevertheless, the court ruled against the bakery. For those reasons, the petitioners argue that their case provides an opportunity for the Supreme Court to address the free expression issues it did not reach in Masterpiece. The petition also asks the Court to consider overruling Employment Division, Dept. of Human Resources of Oregon v. Smith, which held that, absent evidence of animus, laws of general application are not generally unconstitutional if they impose burdens on religious beliefs of exercise.

Amy Howe detailed this story on Friday. Read the article here. Read more about the case in the Washington Times. More information about the Oregon Equality Act can be found here.

Written by ISCOTUS Fellow Clayburn Arnold, 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.

 

Orders of the Court, OT 2018

SCOTUS and the Ross Deposition

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Secretary of Commerce Wilbur Ross will not have to sit for a deposition in a lawsuit that challenges his decision to include a citizenship question on the 2020 census, at least at for the moment, the Supreme Court ruled in an order it handed down Monday night.

John Gore, the acting head of the civil rights division of the Department of Justice, will likely have to submit to a deposition because the Court’s opinion denied the application for stay of a court order which required his deposition. The opinion also denied the request to block other discovery outside the administrative record.

The order also gave the Department of Commerce until Monday, October 29, to petition for certiorari regarding the order. If the Commerce Department does so, the upheld stay will remain in effect until the Supreme Court decides whether to grant certiorari on the issue. If the Court denies certiorari, the stay will terminate and Ross will be subject to deposition. If the Court grants certiorari, the stay ends when the Court issues an opinion on the issue.

There were no noted dissents from the decision to stay Ross’s deposition. Justice Gorsuch, however, wrote an opinion in which he, joined by Justice Thomas, concurred in part and dissented in part. Gorsuch wrote that he would have gone a step further and stayed all extra-record discovery until the Supreme Court could review the order. Gorsuch wrote that the majority opinion could allow the plaintiffs to lay the groundwork for preventing certiorari. The plaintiffs could, he wrote, withdraw their request to depose Ross, persuade the trial court to quickly try the case, and then oppose certiorari, arguing that their discovery dispute had become moot.

Although the district court held that a deposition of Ross as necessary because the plaintiffs had made a “strong showing” of “bad faith” by Ross, Gorsuch disagreed. “Levelling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,” he wrote. Gorsuch went on to write that the evidence of bad faith the district court cited was insufficient.

The lawsuit challenges Ross’s decision to add the citizenship question as violating the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment. The plaintiffs also argue that the question will deter immigrants from responding to the census, resulting in inaccurate  numbers. Census results are hugely important. They are used to draw House districts, which also determine each state’s number of electoral votes. Census data are also used to distribute federal funds under a variety of programs.

Ross has said he added the question so that the Justice Department can use the citizenship information to better enforce Section 2 of the Voting Rights Act, but the plaintiffs claim that explanation is pretextual. And recently released documents raise questions about Ross’s candor about this issue when he testified before Congress.

Ross testified that the Justice Department “initiated” the request for the question in December 2017 by sending a letter to the Census Bureau. But documents released in discovery suggest that Ross or his staff spoke about the citizenship question to Attorney General Jeff Sessions in the Spring of 2017 and that that Ross or his staff discussed the census question with Gore, Sessions’s aide, Mary Blanche Hankey, Danielle Cutrona (a Justice Department lawyer) and two others. In addition, Kansas Secretary of State Kris Kobach, who is also running for governor of Kansas as a Republican, sent Ross an e-mail, dated July 14, 2017, asking about adding the citizenship question to the census. Kobach, who led a failed voter-fraud task force under Trump, said that he was following up on the telephone conversation that Ross and Kobach had “a few months ago.”

Other recently released documents raise other questions. During Ross’s congressional testimony, Democratic Representative Grace Meng, of New York, asked Ross, ”Has the president or anyone in the White House discussed with you or anyone on your team about adding this citizenship question?” Ross answered, “I am not aware of any such.” But newly released documents suggest that Ross spoke with Steve Bannon, then serving as President Donald Trump’s chief strategist, before including the citizenship question on the 2020 census.

Article 1 Section 2 of the U.S. Constitution mandates that the government conduct a census every decade. The section does not mention citizenship.

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 ISCOTUS co-director Carolyn Shapiro.

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

New Case on State Action: Manhattan Community Access Corp. v. Halleck

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Last Friday, the Supreme Court agreed to hear Manhattan Community Access Corp. v. Halleck, a case about when and whether a private entity that runs a public access channel is a “state actor.” The question is important because state actors can be held liable for violating constitutional rights; private actors generally cannot. As the Legal Information Institute explains, “[t]he state action requirement stems from the fact that the constitutional amendments which protect individual rights (especially the Bill of Rights and the 14th Amendment) are mostly phrased as prohibitions against government action.” Depending on how the Court rules and how broadly it reasons, the case could have implications for social media companies, as this CNBC article explains.

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