Archive | Supreme Court

My SCOTUSBlog Argument Recap of Walden v. Fiore

There were a lot of high-profile cases argued at the Court this week, but one case that was argued was Walden v. Fiore, the personal-jurisdiction/venue dispute about a deputized DEA agent who seized a bunch of money from some professional gamblers. I’ve posted my assessment of the oral argument at SCOTUSBlog:

As the first few minutes of oral argument in Walden v. Fiore unfolded on Monday, Walden’s counsel, Jeff Bucholtz, must have been pretty optimistic. For several minutes, the Justices’ questions focused entirely on which of the two questions Walden ought to win on — the personal jurisdiction question or the venue question. . . .

But as the Court began to discuss the personal jurisdiction question, it seemed to find it slightly trickier. . . .

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Are Conservative Judges Better? Evidence from Geoff Stone

Prof. Geoff Stone argues that conservative Supreme Court justices are more ideologically inflexible and less meritocratic than their liberal counterparts. His evidence for this is that

Of the 20 law clerks appointed this Term by the five conservative Justices — Roberts, Scalia, Kennedy, Thomas and Alito, 18 of the 20 — or an astonishing 90 percent — clerked last year for a Republican-appointed judge. Of the 16 law clerks appointed this Term by the four more liberal Justices — Ginsburg, Breyer, Sotomayor and Kagan, only 9 of the 16 — or 56 percent — clerked last year for a Democratic-appointed judge.

I would not rest any theory on this information, but if I would, it could easily support quite different explanations.

1) Given that the court picks clerks every year, data from one year is not very interesting; there are no doubt fluctuations. Any serious discussion of the issue would require looking across a period of year. I understand Stone may not have wanted to this – any more than I do – but then it is probably not fair to say one year’s hiring “shows” anything. Prof. Brian Leiter surprisingly calls this “hiring patterns,” but I don’t see how one year can be a pattern.

Indeed, the numbers Stone cites sound impressive in terms of percentages, but are really just a difference of a few clerks. Stone admits this is just a “tidbit,” but then goes on to say it “reveals… what is really going on.”

2) Now assuming this “pattern” is true, one possible explanation is that there is more conservative-to-liberal drift on the bench than vice versa. Thus there are more Republican-appointed judges with liberal tendencies than vice-versa.

3) Perhaps Stone should have called his article “The difference between conservative and liberal JUDGES.” The relatively [...]

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Chief Justice Roberts Cites a Law Review Article in Marek v. Lane

Remember all of the recent discussion about the uselessness of law review articles, and the way nay-sayers like to invoke Chief Justice Roberts’s remark about “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria”?

Today the Chief Justice issued an opinion respecting the cert denial in Marek v. Lane, a challenge to the abuse of “cy pres” in class action settlements. The opinion noted the many potential problems raised by such settlements, and their growing importance. Other than the record and lower court decisions, the only thing cited in the entire opinion is … a law review article. (The article is Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617 (2010) by Martin Redish, Peter Julian, and Samantha Zyontz.)

Of course, to those who have been paying attention, this should actually be old news; Orin posted something similar a year and a half ago. [...]

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My SCOTUSBlog Argument Preview on Walden v. Fiore

I have just posted my first post as an occasional blogger on SCOTUSBlog — a preview of the argument next week in Walden v. Fiore. An excerpt:

The facts sound like the beginning of one of the Court’s many constitutional tort cases. Gina Fiore and Keith Gipson are professional gamblers who were — like millions of other travelers every year — changing planes at Atlanta’s Hartsfield-Jackson airport. Fiore and Gipson were carrying $97,000 in cash, much of which they’d won gambling in San Juan, Puerto Rico, and were returning to their home in Nevada.

The cash aroused the suspicions of law enforcement at the Atlanta airport, and the two travelers were questioned by Anthony Walden, a local police officer and deputized Drug Enforcement Administration agent, who eventually seized all of their money for possible forfeiture. …

The lawfulness of Walden’s conduct (and the factual truth of the plaintiffs’ allegations) is not before the Court. Instead, the issue presented by this case is whether Walden can be sued in a federal court in Nevada. That controversy raises questions of both personal jurisdiction and venue. . . .

I’ll be blogging at SCOTUSBlog on some procedural and jurisdictional topics in the future; I haven’t yet decided how frequently I’ll be linking to them from here. [...]

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Climate Change Goes Back to Court

This morning, the Supreme Court granted certiorari in Utility Air Regulatory Group v. EPA concerning the Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act. This is quite significant. Although the grant is limited, it focuses on one of the most important legal questions raised by this litigation, and puts some of the EPA’s regulation of greenhouse gas emissions from stationary sources in play.

Harvard’s Richard Lazarus comments:

The Court’s jurisdictional ruling is significant in terms of both what the Court granted and did not grant. The regulations the Court has agreed to review represent the Obama Administration’s first major rulemaking to address the emissions of greenhouse gases from major stationary sources across the country. At the same time, the Court declined to review EPA’s determination that greenhouse gases from new motor vehicles endanger public health and welfare and therefore has left intact the government’s current regulation of motor vehicles emissions to address climate change.

I largely agree, but would go farther in certain respects.

Here’s some background (see also my prior posts here and here). Various states, industry groups, and activist organizations had filed cert petitions – nine in total – and others filed amicus briefs (including yours truly) urging the Court to take this case. The Court was asked to consider many different questions, but only agreed to consider one of its own devising. Specifically, the Court granted six of the nine petitions and agreed to consider the following question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court wants to know whether the EPA was required to apply Section 165 and Title V of the Act [...]

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Roberts Court Is Still a “Less Activist” Court

In today’s NYT, Adam Liptak explains why the Roberts Court is far less “activist” than its post-War predecessors, at least as measured by its willingness to strike down federal laws.

“If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other.”

But Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

This may be news to the NYT‘s readership, but it’s something I’ve been pointing out for years, including when Justice Ginsburg made her remarks in August and when Liptak first reported the data showing that the Roberts Court overturns federal legislation at a significantly lower rate than the Warren, Burger, and Rehnquist courts (and reverses precedent less often too). The most “activist” justice on the Court is also not the most conservative, but Justice Kennedy, who’s almost always in the majority to strike down federal laws, whether we’re talking about DOMA and the Voting Rights Act, or the Stolen Valor Act and Guantanamo detainee legislation (and then laments that the nation relies upon the Court to resolve so many important questions).

Unless one advocates a Thayerian approach to judicial [...]

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Professor Stephen Sachs and Atlantic Marine v. U.S. District Court

On Wednesday, the Supreme Court heard oral argument in Atlantic Marine v. U.S. District Court, a case about the proper procedure for enforcing a forum selection clause. As I’ve mentioned on this blog before, Professor Stephen Sachs (who is also a friend) filed an amicus brief arguing that both parties were wrong and that a third side of the 3-way circuit split was correct.

The Court was apparently quite interested in the theory — Sachs was mentioned by name 17 times at argument as the Justices asked a lot of questions about his position. (Here’s the transcript.) Unfortunately, Sachs was not given time to argue the case (amici curiae almost never are), and the parties either couldn’t or didn’t want to give good answers to those questions.

So I reached out to Sachs for his reactions, which are pasted below and continue below the fold:

There are three ways to decide the case in Atlantic Marine, and at oral argument the Justices didn’t seem very happy with any of them.

The parties, Atlantic Marine and J-Crew, had agreed in a contract that their disputes “shall be litigated” in Virginia. When a dispute arose, J-Crew instead sued in the Western District of Texas, which had jurisdiction and proper venue under the statutes. The question in the case is what difference the contract makes: whether it destroys proper venue in Texas (Atlantic’s view), whether it informs the court’s discretion to transfer venue to Virginia (J-Crew’s view), or whether it provides an affirmative defense in the Texas court (my view).

At least based on their questions, I don’t think any Justice wholeheartedly agreed with Atlantic’s reading of the venue statutes. Suing where you agreed not to sue might be “improper,” but it doesn’t make for “improper” venue: the private

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Public Opinion on the Court

Gallup reports that new poll results show the public remains “closely divided” about the Supreme Court.  According to their most recent survey, 46 percent of Americans approve of the job the Court is doing, while 45 percent disapprove.  Chief Justice John Roberts’ approval rating is somewhat higher than that of the Court.  At 55 percent, Gallup reports, it is also 10 points higher than that of the President (and substantially higher than that of Congress).  Gallup also notes that Roberts’ approval rating is somewhat higher among self-identified Democrats than Republicans.  As for the Court’s ideological balance, 30 percent of Americans think the Court is too liberal and 23 percent think it is too conservative.  A plurality of Americans think that the Court’s ideology is “just about right.”  Gallup concludes:

most Americans believe the judicial branch is the nation’s most trustworthy division of the federal government. And even a plurality of Americans believe the court is ideologically balanced, rather than being too conservative or too liberal. For a court looking to start a fresh term, these are hopeful signs that it may one day be back in the good graces of a majority of the country.

This is a poll, so YMMV and the usual caveats apply. [...]

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Supreme Court Discussion of Academic Amicus Brief

An academic amicus brief got heavy attention in the Supreme Court today (and no, it wasn’t Steve Sachs’s — that case will be argued Wednesday). As Lyle Denniston explains at SCOTUSBlog, in Madigan v. Levin, an age discrimination case from the Seventh Circuit, “a brief that had been filed by law professors who specialize in the arcane field of court procedure had obviously drawn the Court’s attention,” and the Court spent several minutes at the start of argument seriously questioning the Seventh Circuit’s jurisdiction.

For those interested in this “arcane field” of pendent appellate jurisdiction, the brief is by Steve Vladeck, and a link is here. The transcript is here, and discussion of jurisdiction starts on page 3. The argument in the brief overlaps heavily with Vladeck’s recent article, Pendent Appellate Bootstrapping, in the Green Bag. Who says legal scholarship is irrelevant to what courts do? [...]

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Justice Scalia, on “Maybe The Only Heroic Opinion I Ever Issued”

This wasn’t sufficiently germane to mention in my previous post, but one other passage from the Justice Scalia interview that I particularly liked was his response after Jennifer Senior tried several times to get him to name his most “heroic” decision:

I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.

From the case involving Vice-­President Cheney, with whom you’d gone hunting?

I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.

Here’s the opinion, by the way, if you’ve never read it. I pretty much agree with Justice Scalia’s assessment of it.

[UPDATE: Link should be fixed!] [...]

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The New York Magazine Interview: Why Does Justice Scalia Write Forceful Dissents?

Justice Scalia recently gave a long and fascinating interview to New York Magazine, which I highly recommend anybody interested in the Court read. My favorite part is the extended exchange with the interviewer about Scalia’s belief in the devil (and the interviewer’s apparent shock at this), which I won’t try to excerpt here.

But I was also interested in some exchanges about Justice Scalia’s “legacy.”

[Senior:] I don’t know how, by your lights, [the Lawrence v. Texas dissent] going to be regarded in 50 years.

[Scalia:] I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.

Here, and in another passage (comparing himself to Justice Sutherland), Scalia professes not to care about whether the country agrees with his views fifty years from now. And yet in the interview he also says:

My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?

Law students.

Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.

Justice Scalia does indeed write fantastic, enduring dissents. But isn’t the reason to write dissents for law students because one thinks that’s the best way to convince future generations of lawyers that an opinion was mistaken? And isn’t the reason to do that to undermine that decision’s authority so that its errors are one day limited or reversed? I had always [...]

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Justice Kennedy on Judicial Intervention

In remarks at the University of Pennsylvania, Justice Anthony Kennedy lamented the state of American democracy, according to this AP report.

“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Kennedy said Thursday at the University of Pennsylvania

“I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful, decent discourse so it can solve these problems before they come to the court.”

These comments strike me as somewhat odd, particularly coming from Justice Kennedy.  Unless he was talking issues like political gerrymandering, it seems to me that Justice Kennedy’s concerns are a bit misplaced, particularly in light of his own jurisprudence.

Contra Kennedy, American society does not “rely” upon the supreme Court “to resolve the most serious issues of the day.”  It is relatively rare that the Court is called on to settle a political or other dispute that cannot be resolved through ordinary political means (although the resolution might not be to some of our liking). In most cases, the Supreme Court intervenes not to help the democratic process to function, but rather to alter the way in which these questions have been resolved.  Moreover, Justice Kennedy is more prone to support such intervention than most of his colleagues, having voted to invalidate DOMA, Section 4 of the Voting Rights Act, McCain-Feingold, the PPACA, the Stolen Valor Act, and so on.  The only sense in which these questions were not “solved” before they came to the Court is in that the resolution was not that which Justice Kennedy would have preferred (or which Justice Kennedy believed is constitutionally compelled).

Take the issue of gay marriage, for example. The political process has been addressing that issue.  Numerous states have considered [...]

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Schuette v. Coalition to Defend Affirmative Action: Forgetting the Narrative

[See update below.
This term, the Supreme Court will decide Schuette v. Coalition to Defend Affirmative Action. The Sixth Circuit, in an en banc 8-7 opinion, invalidated a Michigan constitutional amendment, passed by referendum, that forbids racial preferences by government institutions, including public universities The court held that the amendment violated the Fourteenth Amendment’s Equal Protection Clause, because it put African American students who wish to lobby for affirmative action university preferences at a structural political disadvantage relative to other students who wish to lobby for other sorts of preferences, such as legacy preferences. The latter students need only go through ordinary legislative or regulatory processes, while the hypothetical black student needs to overturn a constitutional amendment.

There is a lot to criticize in the Schuette opinion, but I wanted to focus on a point that I haven’t seen raised elsewhere, but that I raise in a forthcoming article in the NYU Journal of Law & Liberty, which I will post a link to when its ready. The Sixth Circuit treats affirmative action preferences as if they are designed to benefit African American students, and thus making it more difficult for them to lobby for such preferences puts African Americans, as a class, at a political disadvantage. The problem is that the Sixth Circuit forgot the narrative. While the impetus for affirmative action in higher education among American elites is, in fact, primarily to pursue “social justice” for underrepresented minorities in general and African Americans in particular, the Supreme Court has consistently held that this is an illegal, unconstitutional rationale for affirmative action preferences.

Rather, under governing precedent, any use of race in admissions is subject to strict scrutiny, which could be overcome only if the relevant educational officials have determined that student racial and ethnic diversity “is [...]

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The Long Conference Orders List, Part One

It’s one of my favorite days of Fall — the release of the orders list from the Supreme Court’s long conference — the day that cert petitions and other motions have been waiting for all summer. The Court has split the orders list into two, releasing grants (and a few other time-sensitive things) today, and leaving the rest for next week, so it’s hard to tell what’s happened to many of the most-watched cases that weren’t granting today. But a few things interested me on today’s list:

— A grant in United States v. Castleman, a criminal case apparently implicating two different important circuit splits about the definition of a “crime of violence” under one of the federal gun-possession statutes. One is whether a crime has the “use of force” as an element if it only requires a touching (as common law battery did). The other is whether a crime has the “use of force” as an element if it only requires the defendant to “cause bodily injury” without regard to the mechanism. I am inclined to think the answer to both is “no,” but I’ll be reading the briefs before I make my mind up.

— A grant in Petrella v. MGM, a case about whether the equitable defense of “laches” is available in copyright suits in addition to the three-year statute of limitations.

— A cert denial in Gore v. Crews, a capital case notable largely because it’s the only cert denial on the list. All of the other denials will be put off until Monday. I assume this one was released early so that Florida can hurry up the execution.

UPDATE: Apparently, Mr. Gore has been executed.

— And the Court ruled on Stephen Sachs’s motion to participate as an amicus curiae [...]

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