Category Archives: Supreme Court Action

CRS Report: Justice Anthony Kennedy: His Jurisprudence and the Future of the Court

An excerpt from Justice Anthony Kennedy: His Jurisprudence and the Future of the Court (R45256 July 11, 2018):

Unlike several other Justices on the Court, Justice Kennedy did not necessarily subscribe to a particular judicial philosophy, such as originalism or textualism. Instead, Justice Kennedy’s judicial approach seemed informed by a host of related principles. First, Justice Kennedy’s views on the law were often grounded in concerns for personal liberty, particularly freedom from government interference with thought, belief, expression, and certain intimate conduct. His emphasis on liberty manifested itself in a range of opinions he wrote or joined during his tenure on the Court, including on issues related to free speech, religious freedom, and government policies concerning same-sex relationships. Second, the structural protections of the Constitution—i.e., restraints imposed on the federal government and its respective branches by the doctrines of federalism and separation of powers—also animated Justice Kennedy’s jurisprudence. For Justice Kennedy, separation of powers was a “defense against tyranny,” and he authored or joined a number of Court opinions that invalidated on separation-of-powers grounds intrusions on the executive, legislative, or judicial functions. Likewise, during the Rehnquist Court and Roberts Court eras, Justice Kennedy joined several majority opinions that recognized federalism-based limitations on the enumerated power of the federal government, established external limitations on Congress’s legislative powers over the states, and reaffirmed protections for state sovereignty. Third, Justice Kennedy’s jurisprudence was undergirded by his view that the Court often has a robust role to play in resolving issues of national importance. With Justice Kennedy casting critical votes, over the last 30 years the Court has reasserted its role in a number of areas of law in which it was previously deferential to the judgment of the political branches.

— Joe

Who is Brett Kavanaugh?

Here’s four profile pieces to read more about Trump’s nominee for the Supreme Court.

Brett Kavanaugh, Trump’s Supreme Court pick, has sided with broad views of presidential powers, Washington Post, July 9, 2018

Brett Kavanaugh: Everything you need to know about Trump’s new Supreme Court candidate, Independent, July 10, 2018

Who is Judge Brett Kavanaugh? Trump’s Supreme Court nominee, Boston.com, July 10,2018

Who Is Brett Kavanaugh, President Trump’s Pick For The Supreme Court?, NPR, July 9, 2018

— Joe

Trump Travel Ban 3.0: Opinion analysis from the blogosphere

Here’s a sampling of blogs commenting on the Supreme Court’s decision in Trump v. Hawaii.

SCOTUSblog

Constitutional Law Prof Blog

ImmigrationProf Blog

Lawfare

Take Care Blog

— Joe

NPR’s annotated list of potential SCOTUS nominees

President Trump said Wednesday he intends to nominate a replacement for retiring Supreme Court Justice Anthony Kennedy from a list of names he first compiled during his 2016 campaign. Here’s NPR’s annotated list of potential SCOTUS nominees. — Joe

SCOTUS expands states’ ability to require internet retailers to collect sales tax

In South Dakota v. Wayfair, the justices voted 5-4 to overrule two prior cases that prohibited states from requiring out-of-state retailers who don’t have a store or warehouse in the state to collect tax on sales to state residents. Here’s the SCOTUSblog opinion analysis. — Joe

SCOTUS rules Ohio’s voter-roll maintenance process does not violate federal voter-registration laws

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

SCOTUS rules narrowly for baker in same-sex-wedding-cake case

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

Epic Systems v. Lewis: Employers prevail in arbitration case before Supreme Court

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

Quantifying Neil Gorsuch’s stylistic proclivities

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

RBG, the official trailer

— 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

Explaining the unexplained recusals at the Supreme Court

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

Transcript and audio recording of SCOTUS oral argument for Travel Ban 3.0 available

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

Does the shape of the Supreme Court’s bench affect oral argument?

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.

— Joe

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

Justices Thomas and Sotomayor debate legislative history in dueling concurrences

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 transcribes notes written by Supreme Court justices during conference meetings

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 spots factual errors in very limited sample of SCOTUS opinions

“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

Supreme Court website redesigned

Take a peak here. On SCOTUSblog, Andrew Hamm writes:

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.”

— Joe