In Husted v. A. Philip Randolph Institute, No. 16-980, June 11, 2018, the Supreme Court ruled 5-4 that the process Ohio uses to remove voters on change-of-residence grounds does not violate the National Voter Registration Act. Jusice Alito wrote the opinion. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Sotomayor filed a dissenting opinion. Here’s the opinion. — Joe
Category Archives: Supreme Court Action
By failing to exhibit “religious neutrality,” the Colorado Civil Rights Commission violated the free-exercise rights of a baker who refused to make a cake for a same-sex wedding in the 7-2 holding in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 June 4, 2018. See Amy Howe’s SCOTUSblog analysis here. — Joe
In a major employment case, Epic Systems v. Lewis, the Court held 5-4 that arbitration clauses in employment contracts that require employees to forego class and collective actions are enforceable. The opinion was handed down by Justice Gorsuch on May 21, 2018. Justice Thomas filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. On SCOTUSblog, Amy Howe authored an analysis here. — Joe
Here’s the abstract for Nina Varsava’s Elements of Judicial Style: A Quantitative Guide to Neil Gorsuch’s Opinion Writing, 93 NYU Law Review Online (Forthcoming 2018):
Current discussions of judicial writing in the U.S. often feature Neil Gorsuch’s opinions. Despite the fervor around Gorsuch’s style and rhetoric, there have been no attempts to systematically quantify his stylistic proclivities. This article presents results from a quantitative study of published opinions from the Tenth Circuit Court of Appeals during Gorsuch’s tenure there. Through analyses of extensive stylistic data, I illuminate Gorsuch’s stylistic fingerprint, revealing, in quantitative terms, how Gorsuch has achieved the stylistic effect that has impressed many observers. I also analyze Gorsuch’s stylistic drift over the past decade, revealing trends that might give us a sense of what to expect from the Justice’s writing for the Supreme Court. I find that Gorsuch’s writing style is remarkably informal and unconventional compared to his Tenth Circuit peers. Moreover, Gorsuch’s opinions have a lot in common with fiction writing. They are often suspenseful, and they contain a broad range of vocabulary but limited legal jargon and citation. Regardless of the merit of Gorsuch’s writing style, it has captivated many readers, among both the public and the legal community. This paper pinpoints, in kind and degree, some of the properties that make Gorsuch’s writing stand out—properties that have helped form his reputation as a jurist.
H/T to Bob Ambrogi’s LawSites post. In his post Bob reports the results of testing Gorsuch’s opinions against BriefCatch, PerfectIt and WordRake. — Joe
Pew Survey: A majority of Americans say SCOTUS should base its rulings on what the Constitution ‘means in current times’
According to a recent Pew survey on American democratic values, 55% of Americans now say the Supreme Court should base its rulings on what the Constitution “means in current times,” while 41% say rulings should be based on what it “meant as originally written.” In her FactTank post, Kristen Bialik reports
Nearly eight-in-ten Democrats and Democratic-leaning independents (78%) now say rulings should be based on the Constitution’s meaning in current times, higher than at any previous point on record and up 9 percentage points from 2016 (69%). Just three-in-ten Republicans and Republican leaners now say the same, an 11-point increase from 2016 but little changed from GOP views in the years prior.
About three-quarters of conservative Republicans (77%) continue to say the Supreme Court should base its rulings on the Constitution’s original meaning rather than its meaning in current times (21%). But moderate and liberal Republicans are more divided: 50% favor an interpretation based on the Constitution’s original meaning, compared with 46% who say the court should base its rulings on a current interpretation.
Ideological differences are less pronounced among Democrats. Liberal Democrats (88%) overwhelmingly say the Supreme Court should base its rulings on the Constitution’s meaning in current times, as do a majority (70%) of conservative and moderate Democrats.
For more, go here. — Joe
At Fix the Court, Gabe Roth introduces the group’s third annual report on the justices’ recusals, which “once again lays out the reasoning behind the justices’ self-disqualifications.” — Joe
Oral argument resources for Trump v. Hawaii, 17-965: transcript and audio. For a summary, see Amy Howe’s Argument analysis: Travel ban seems likely to survive Supreme Court’s review on SCOTUSblog. — Joe
In Chief Justice Burger and the Bench: How Physically Changing the Shape of the Court’s Bench Reduced Interruptions during Oral Argument, ___ Journal of Supreme Court History ___ (Mar. 2018), Ryan Black, Timothy Johnson and Ryan Owen report on their empiricial study which concludes that the change from a straight bench to a curved bench improved oral arguments because justices were less likely to interrupt each other. — Joe
Claims of neutrality in SCOTUS confirmation hearings have negative effects on the legitimacy of the Court as an institution
Here’s the abstract for Carolyn Shapiro’s The Language of Neutrality in Supreme Court Confirmation Hearings, Dickinson Law Review, Forthcoming:
At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials — like statutes and precedents — and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then-Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some Senators, however, they differed from answers given by other recent nominees largely in degree and tone, not in kind. Indeed, all four most recent nominees before Gorsuch — but especially Chief Justice Roberts and Justice Sotomayor — made similar claims, of which Roberts’s invocation of the neutral umpire is only the most famous.
Such forceful claims of neutrality and their attendant implication that there are necessarily right and wrong answers to difficult legal questions — answers that can be determined through deductive reasoning or by examining legal texts through the right lens — are not new, but their role and prominence in Supreme Court confirmation hearings have changed over the years. Using both qualitative and quantitative analysis, including empirical research on confirmation hearings already reported, this Article charts the history of such discussions in Supreme Court confirmation hearings from Justice Harlan’s hearing in 1955 through Justice Gorsuch’s hearing in 2017 — the period of time during which all nominees have been expected to appear before the Senate Judiciary Committee. More specifically, the Article focuses on the extent to which nominees and Senators have claimed that there are objectively correct answers to the hard questions faced by the Supreme Court or, alternatively, have acknowledged and discussed the reality that textual and historical sources often do not provide clear answers and that Supreme Court Justices must balance competing interests, precedents, and constitutional principles and apply constitutional provisions and doctrines in new and complex factual circumstances.
Specifically, the Article establishes that during the Warren court years, claims of objectivity were often made by conservative Senators, with relatively little discussion of alternative views of judging by either Senators or nominees. By the late 1980s and 1990s, however, Senators and nominees were having surprisingly candid conversations about the role of the Supreme Court, conversations that acknowledged the importance of judgment and judicial philosophy in resolving many difficult constitutional questions. Since 2000, however, nominees have largely eschewed such discussions and, along with Republican Senators, have embraced claims of objectivity and neutrality.
As the Article demonstrates, however, such claims about the Court and its work are highly inaccurate, and they may have negative effects on the legitimacy of the Court as an institution. After all, when the Court announces its decisions in difficult cases, members of the public can plainly see that different Justices both approach those cases differently and often disagree about the result in predictable ways. News media regularly refer to the “liberal” and “conservative” Justices. So there is a significant disconnect between the claims made during confirmation hearings and the actions the Justices take — and research suggests that such a disconnect can undermine public confidence in the institution. The Article closes by proposing that Senators use their questions during confirmation hearings to combat the myth that judging, especially on the Supreme Court, is necessarily about reaching objectively correct, logically deducible conclusions.
Judicial activity increasing dramatically according to empirical inquiry of Supreme Court oral arguments
The New Oral Argument: Justices as Advocates, 94 Notre Dame Law Review ___ (2019) by Tonja Jacobi and Matthew Sag “conducts a comprehensive empirical inquiry of 55 years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court’s decision-making process.” — Joe
A unanimous Supreme Court struck a blow for the plain reading of the law last week in Digital Realty Trust, Inc. v. Somers (No. 16-1276, Feb. 21, 2018) but a pair of dueling concurrences deserve broader attention for what they say about the different methods of legal interpretation on the High Court today. At issue — legislative history. On The Volokh Conspiracy, see Justices Thomas and Sotomayor Debate Legislative History. — Joe
SCOTUS Notes is the newest crowdsourcing project under the Zooniverse platform originated at the University of Minnesota. “In this project, members of the public transcribe handwritten notes from U.S. Supreme Court justices. Unlike members of Congress, justices cast their votes in complete privacy during weekly conference meetings. Only justices are allowed in the Chief Justice’s conference room when they discuss, deliberate, and make initial decisions on cases that focus on some of the nation’s most pressing legal issues. The only record of what has been said, and by whom, is provided by the handwritten personal notes the justices themselves take during conference. These crucial documents detail the discussions and debates that took place in thousands of cases spanning multiple decades.”
The project is seeking volunteers. Interesting. H/T to beSpacific. — Joe
“ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.” It’s a Fact: Supreme Court Errors Aren’t Hard to Find. Interesting.
H/T beSpacific. — Joe
The court’s Public Information Office boasts that the site update includes “a more consistent menu structure, a more interactive calendar, faster access through Quick Links, improved page load times, and reduced page scrolling.” For example, instead of indicating only that the court will hear oral argument on a given day, the updated calendar provides case names for each argument day, with links to the docket entries and the questions at issue in each case.
The homepage also provides access to transcripts, audio and other case information.
Judging from the Twitter reactions of multiple Supreme Court practitioners and commentators, the most appealing element of the update – what John Elwood called a “tantalizing glimpse” – may be the light at the end of this newly-opened tunnel. According to the PIO, “the improvements will better support future digitization and the addition of electronic filing, and will enhance mobile access to information on the site.”
In Foreword: The Books of Justices, 115 Mich. L. Rev. 733 (2017), Linda Greehouse reports on the results of her study of SCOTUS justices’ practice of citing “books” during the 2015-16 Supreme Court term: “For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations.”
Here is a capsule view of her findings:
Categories of Books Cited
Treatises and practice manuals 51 times cited
Primary sources, historical 27 times
History and political science 17 times
Law 16 times
Dictionaries 7 times
Restatements 6 times
Literature 5 times
Primary sources, modern 3 times cited
SCOTUS vacates and remands decision on IDEA educational standards by SCOTUS nominee during Senate confirmation hearings
I believe this is a first. From SCOTUSblog’s Thursday round-up by Edith Roberts:
In Endrew F. v. Douglas County School District, a unanimous court ruled that the Individuals with Disabilities Education Act requires a school to offer an “individualized education program” reasonably calculated to allow the student to progress in the child’s circumstances. Coverage of the decision comes from Emma Brown and Ann Marimow in The Washington Post, who report that the court “raised the bar for the educational benefits owed to millions of children with disabilities in one of the most significant special-education cases to reach the high court in decades.” In The Wall Street Journal, Jess Bravin reports that although “the specific decision overruled was decided in 2015, the phrase the justices rejected derives from a 2008 ruling by Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee, who had been defending that very decision at a Senate Judiciary Committee hearing when word of Chief Justice Roberts’s opinion reached the Hart Senate Office Building.
NPR reports “[w]hen questioned on his record, in light of this new ruling, during his hearing today by Texas Sen. John Cornyn, [Judge Gorsuch] said ‘I was wrong, senator, because I was bound by circuit precedent, and I’m sorry.'” — Joe
In Supreme Court’s Style Manual is Private No More, Tony Mauro reports that the US Supreme Court Style Guide, 2013 ed. can be purchased through Amazon without Court approval because a court aficionado named Jack Metzler is making it available for sale under his own imprint. Metzler reportedly photocopied the 200+ page long manual in the Supreme Court’s law library. The style manual “could be an important resource for brief-writing advocates as well as judges and clerks of other courts seeking to match the sometimes quirky style rules of the nation’s highest court,” writes Mauro. — Joe
The fact that Justice Scalia passed away over the weekend from natural causes is, of course, all over the news. There are any number of articles speculating on how nominating a successor would affect the coming presidential election; who are the potential nominees; how this changes the ideological make-up of the Court, and so one. All are worthy questions for speculation. I’d like to highlight what this event means for coming decisions. The Court has had a certain stability despite the two appointments resulting in the confirmation of Justices Sotomayor and Kagan. As a side note on that, check out the CNN story by David Axelrod where Justice Scalia quietly expressed a preference for Elena Kagan to replace Justice Souter. He got his wish when Justice Stevens retired.
Court watchers were always interested in Justice Scalia’s questions in oral argument given the Court’s ideological split, mostly 4-4 with Justice Kennedy in the middle. While he was identified as a conservative, he didn’t always side with a conservative point of view. I remember that he was fairly protective of the Fourth Amendment (See U.S. v. Jones, 132 S. Ct. 945 (2012) as an example) when the trend in Federal Courts seemed to find plenty of exceptions in its prohibitions). Justice Scalia’s questions were as much a clue to his influence on the resulting decision as it was a bit of theater. He certainly seemed to enjoy the intellectual banter with those presenting arguments. CNN has another article listing six cases the site highlights as more significant cases than others. How the Court will handle these and other issues will send Court watchers back to re-analyze the arguments.
The cases that concerns me is the potential appeal of the Google Books case and the Apple antitrust case, both affirmed by the Second Circuit. The Authors Guild has filed a petition for cert which is pending. Apple has yet to file its petition but has indicated that it intends to do so. Justice Scalia will not be a participant in the case whether the Court accepts the cases or hears them. These cases may stand if the Court splits 4-4 on the issues. If it makes any difference, Justice Scalia joined Justice Ginsburg’s dissent in the Kirtsaeng v. John Wiley & Sons, Inc. first sale doctrine case.
I have a minor personal story about Justice Scalia. He came to DePaul several years ago and spoke to the faculty in our Rare Book Room. Security was exceptionally tight. I believe it was the first time ever I had to show multiple IDs just to get into the building. I was sitting at the Reference Desk when the Justice was shuttled up to his engagement via the service elevator. That was less than 100 feet from where I was sitting. That is effectively the closest I will likely get to a member of the Court. It was amusing to have security watch me while I answered the occasional reference question.
I have written pointed things about Justice Scalia in the past. I’ll remember him as the Justice who rejected legislative history in all possible forms as a vehicle for interpreting statutes. He did not join all of Justice Ginsburg’s dissent in Kirtsaeng. He skipped every section that mentioned legislative history, even if appearing only in a footnote. His attention to original intent had him questioning whether the King could hide a sentry in a coach as an analogy to whether the government could place a tracker on a defendant’s car in some circumstances. That’s from the Jones case mentioned above.
Goodbye Justice Scalia. You were larger than life on the Court. While you will be replaced, there will never be a Justice exactly like you.
The Supreme Court issued two opinions this morning. The first is a habeas corpus case where the underlying issue is where a juror was struck for cause due to ambiguous statements made about applying the death penalty during the voir dire. That case is White v. Wheeler (14-1372). Wheeler was convicted of two murders and sentenced to death in Kentucky. One juror, identified as Juror 638, responded to questions about his ability to impose the death as a sentencing option with answers that went back and forth. The opinion describes these statements:
In response to the judge’s questions about his personal beliefs on the death penalty, Juror 638 said, “I’m not sure that I have formed an opinion one way or the other. I believe there are arguments on both sides of the—of it.” App. to Pet. for Cert. 126a. When asked by the prosecution about his ability to consider all available penalties, Juror 638 noted he had “never been confronted with that situation in a, in a real-life sense of having to make that kind of determination.” Id., at 131a. “So it’s difficult for me,” he explained, “to judge how I would I guess act, uh.” Ibid. The prosecution sought to clarify Juror 638’s answer, asking if the juror meant he was “not absolutely certain whether [he] could realistically consider” the death penalty. Id., at 132a. Juror 638 replied, “I think that would be the most accurate way I could answer your question.” Ibid. During defense counsel’s examination, Juror 638 described himself as “a bit more contemplative on the issue of taking a life and, uh, whether or not we have the right to take that life.” Id., at 133a. Later, however, he expressed his belief that he could consider all the penalty options. Id., at 134a.
The judge considered the prosecution’s motion to strike and, after reviewing the juror’s statements, granted the motion. The Kentucky Supreme Court upheld Wheeler’s conviction and sentence on direct appeal. Wheeler filed a habeas corpus petition in federal court. The District Court dismissed but the Sixth Circuit reversed and granted the petition.
The Supreme Court reversed. It emphasized the deferential approach to state courts required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unless the decision was contrary to federal law as decided by the Supreme Court. The Court reviewed its precedents and concluded that under the deference requirement the Sixth Circuit erred in granting the petition. The Court issued the opinion per curiam. There were no dissents.
The second case involved the application of the Federal Arbitration Act (FAA) as controlling over state law. Readers may remember that the Court enforced an arbitration clause in AT&T Mobility LLC v. Concepcion, 563 U. S. 333, awhile back. That case came out of federal court where the Ninth Circuit enforced precedent (the Discover Bank case) that made waivers of class action suits unenforceable. The Court instead said the FAA preempted state law to the contrary and enforced the arbitration clause.
The present case, DIRECTV, INC. v. Imburgia (14-462), concerns a variation of the Concepcion holding. DIRECTV was sued in state court by individuals believing early termination fees violated California law. The arbitration clause included in DIRECTV contracts limited dispute resolution to arbitration with a provision that waived class arbitration. There was another provision stating that if “law of your state” makes the class arbitration waiver unenforceable then the entire arbitration clause was void. The California trial court denied a request to send the matter to binding arbitration. The California Court of Appeals agreed citing Discover Bank.
The Supreme Court essentially ruled that “law of your state” did not include state law that was invalid under federal law. The Court cited multiple reasons for this conclusion, reasoning that in other circumstances courts would not rely on invalid state law in making decisions. The “law” in this case includes the ruling in Concepcion which nullified the application of Discover Bank. The Court made it pretty clear that there was no way of getting around the Concepcion ruling. Justice Breyer delivered the opinion of the Court and was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito, and Kagan. Justice Thomas filed a dissenting opinion. Justice Ginsburg filed a dissenting opinion and was joined by Justice Sotomayor. Justice Thomas believes that the FAA does not apply to proceedings in state court. Justice Ginsburg would read the entire contract as benefitting the consumer rather than corporate drafters. He expresses similar views as to Justice Thomas but with a little more depth.