Tag Archives: supreme court

Has Ed Whelan Ever Read a Supreme Court Opinion? (Update: Yes, He Has)

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Update: I received a response suggesting that I was the one who missed the mark. From Mr. Whelan himself (with his permission):

As I recall it, the practice when I was a law clerk is that the reporter of decisions drafted the syllabus, for review by the authoring justice. Moreover, a long syllabus doesn’t require the difficult editing decisions that a short paragraph would require.

Touché. (Note that this approach conflicts with the publicly advertised explanation, which says only that the syllabus was “prepared by the Reporter of Decisions.”)

It’s no surprise that ultra-conservative writer Ed Whelan doesn’t like ultra-liberal law professor Erwin Chemerinsky. But a recent post misses the mark. Whelan first attacks Chemerinsky for making a “crazy” suggestion that the Supreme Court should justify its cert. denials. Whelan might be kind of right given the volume of such denials each year (although he seems to overlook that a clerk produces a memo on most every case). Yet the real weak spot of Whelan’s analysis is his second attack:

Nearly as bad is Chemerinsky’s idea that “the Court should hire a ‘clear writer’ who would boil each decision down to a single paragraph that would be released along with the ruling.” I don’t doubt that the author of the majority opinion could often do a better job setting forth clearly what the holding of the case is. But why should the justices delegate to a Court staffer the often difficult and controversial task of summarizing the ruling?

The justices, of course, already do delegate to a Court staffer “the often difficult and controversial task of summarizing the ruling.” Mr. Whelan, meet the Reporter of Decisions of the Supreme Court. Among other things, the Reporter of Decisions is tasked with preparing a syllabus that goes at the top of most Supreme Court opinions. The syllabus has one purpose (you guessed it): to summarize the decision. See, e.g., United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906) (“[The syllabus] is simply the work of the reporter, [who] gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.”).

The role of the Reporter of Decisions might sound like an odd bit of trivia, but it shouldn’t be to anyone who reads a Supreme Court opinion every once in a while. The syllabus is stuck right there at the top of the first page, along with an explanation of who prepared it.

So basically all Chemerinsky is asking for is a shorter, clearer syllabus. Not so crazy at all.

-Michael

Getting it Wrong: A Lesson from a Law Professor’s Blog

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Update: A few minutes after I wrote this post, the blog post I discuss below was edited to better reflect Scalia’s opinion in Maples v. Thomas. In particular, the post now correctly reflects that Scalia would’ve rejected relief “because he believed the Maples was still technically represented in the case,” while adding a new argument that “[t]he record demonstrates that a gap occurred in representation.” Glad we cleared that up.

Blogging is supposed to be fun. In a perfect world, here’s what would happen: you post something interesting and insightful up for the world to see, everyone compliments you on your incredible intelligence, and you can be happy that you added something useful to the world. In the real world, here’s what often happens instead: you post something empty (or perhaps something insightful that turns out to be wrong), anonymous internet trolls leave angry comments eviscerating your work, and you leave wishing you had spent all that time you invested with a stiff drink rather than wasting it on your crappy blog post.

These problems can only get worse when people write about things falling outside their traditional areas of expertise. Susan and I, for instance, write about anything that catches our attention for a moment, which may be something we each know very little about. Even the title of our blog acknowledges the broad sweep of what we talk about here. As a result, we sometimes stumble off track and screw things up.

Recognizing I’m not an expert on many subject matters I write about here, I always try to do two things: (a) acknowledge when I’m wrong, if someone tells me; and (b) never write a post in a heavy-handed, “why doesn’t this person already know this” kind of way.  (I’ll admit there have been exceptions to this rule.)

The importance of a bit of humility in blogging is nicely illustrated by a recent blog post from law professor qua pop culture legal icon Jonathan Turley. The post excoriates Justices Thomas and Scalia for their recent dissenting opinion in a habeas case, Maples v. Thomas.  As it turns out, Professor Turley’s bluster seems to be based on a fundamental misunderstanding of the decision.

[A digression to explain the case. The Maples case presents a procedural issue only a criminal nut could love: what constitutes "cause" sufficient to excuse procedural default? SCOTUSBlog's Plain English column explains it well:

When he first challenged the constitutionality of his death sentence at the state level, Maples thought (as he later told courts) that he had “won the lottery” because he was represented by two lawyers from a prestigious New York law firm.  Unfortunately for Maples, after his New York lawyers filed his brief in the state trial court but before the court issued a decision ruling against him, both of those lawyers left the firm for other jobs, without notifying the court.  So when the court mailed the decision to the lawyers, the mailroom at the New York firm simply returned the unopened envelopes to the court (marked “Returned to Sender”).  As a result, Maples missed his chance to appeal the court’s ruling, which in turn led federal courts to reject his constitutional claims on the ground that they were procedurally defaulted – that is, that he had not given state courts a chance to consider them.

Ok, now back to the law professor's post.]

The Court determined that Maples’ lawyers had abandoned him, providing cause for his procedural default. Scalia and Thomas dissented. This, Turley says, is deplorable:

Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice.

Trouble is, Scalia never once concluded that abandonment is insufficient to establish cause to overcome procedural default. In fact, Scalia expressly agreed “that a habeas petitioner’s procedural default may be excused when it is attributable to abandonment by his attorney.” Scalia dissented because of a factual disagreement with the majority’s conclusion that Maples had been left without counsel. In Scalia’s view, Maples was still represented by the firm of Sullivan and Cromwell as a whole and by a few other individual attorneys who had also represented him. Thus, there was no “abandonment,” but only attorney error. Basic attorney error is something long-recognized as insufficient to establish cause. Scalia’s opinion closes by noting that Maples’ case could therefore provide sufficient cause only if the Court undid its own case law and made all attorney error sufficient to establish cause.  (It is this final explanation that Professor Turley seems to take out of context.)

Scalia’s fine factual distinction may be weak to many, but the point is that he does not reject abandonment as a grounds for relief. He does not insist that procedure triumphs over justice in every case. Professor Turley seems to have overlooked this subtle but important distinction.

I flag all this as a cautionary tale. Blogging is often sold as a no-lose situation, especially for practitioners looking to draw in clients by flashing their intelligence. But blogging is a difficult and dangerous undertaking. Even the best sometimes misread cases or misunderstand doctrine. And when that happens in a blog post, there’s nowhere to hide. The wolves come out out of the shadows to pounce. There is blood. Things get messy. Keep that in mind when you sit down at your keyboard with plans to show the world how smart you are.

…Now go ahead and tell me all the ways I’m wrong.

-Michael

The Risk-Averse Law Clerk

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In his new book Five Chiefs, Justice John Paul Stevens offers an interesting explanation for the decline in petitions for certiorari that the Supreme Court grants (as compared to prior years).  Justice Stevens speculates that the “cert pool” pool is to blame, because “[a] recommendation to deny is less likely to produce an unfavorable reaction from any of the justices than a recommendation to grant and is therefore attractive to a risk-averse clerk.” Although I’ve never even met a Supreme Court (ok, maybe one), the explanation makes a certain amount of intuitive sense.

And that got me to thinkin’.  Judges at all levels place more reliance on their law clerks than they did in the past. At the circuit level, judges might now have three or four clerks. At the district court, judges usually have two clerks (with an extra clerk for the chief judge). Although every judge is certainly different, some judges give their clerks an extraordinary amount of latitude–sometimes even allowing a young clerk to the write his/her opinions (with appropriate supervision, of course).

If Stevens is right that some degree of risk-aversion drives the decisions of Supreme Court clerks, the same might be true of these increasingly important lower level clerks, as well. The risk-averse clerk would probably always take the path of least resistance, choosing the outcome that falls well-within the existing case law. Thus, clerks might drive the case law (at least over time) in a more conservative (“little c” conservative, that is) direction. Moreover, much like Supreme Court justices might prefer to deny a cert petition, district court judges might prefer outcomes on motions that shrink their docket faster. Thus, a clerk might lean towards granting a motion to dismiss early on in a case for fear of earning the judge’s wrath when the cases start piling up.

Of course, a good clerk will learn over time what the actual preferences of the judge really are. (For instance, a clerk for Judge Stephen Reinhardt would probably be less afraid of taking some risks because he knows his boss likes to take them, too.)  And a good judge will resist any kind of risk-aversion-based bias when supervising the clerk. But at least over time, and at the margins, it certainly is conceivable that risk aversion would have an impact.

Consequently, judges should probably be careful in responding to the recommendations of their clerks. It would likely also be helpful to make clear at the beginning of the clerkship that there are no “wrong answers.” If the clerk understands that a particular type of outcome actually bears no “risk,” he might be less likely to color his recommendations in the way that Justice Stevens suggests.

-Michael

“The Emergency Court”: Another Example of the Overcomplication of Government

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The AEI-Brookings Continuity of Government Commission (what an exciting title!) released a report yesterday that imagines an attack on the Supreme Court. It’s not that the Commission was trying to bring back 24; no, the report instead considers the consequences of a terrorist attack on the Court in the hopes of finding some possible solutions to the problems that would result. From the ABA Journal:

While the president of the United States would have the power to appoint temporary justices on an emergency basis without congressional approval, this could create political problems and legal uncertainty, especially if a large number of justices had to be replaced, the report explains.

It would thus be better, the report proposes, to create an emergency court ahead of time with an agreed panel of judges. Members of the emergency panel would fill in empty seats and decide cases, along with the surviving supreme court justices, until the nation’s top court could resume its usual operations.

The Commission’s report explains that any “emergency” court could be composed of either (a) the remaining Supreme Court justices and the chief judges of the Courts of Appeal; or (b) judges drawn from a pool of active judges (previously selected by the President), retired Supreme Court justices, and chief judges of the Courts of Appeal. The first option would produce a huge court of 18 or 19 people, many of whom might have been appointed by the same President. The second option would require a rather complicated process of appointments, lottery selections, and the like.

Perhaps I’m crazy, but I think simpler would be better in a time of crisis. If we’re really going to have an “emergency court,” why not make it the U.S. Court of Appeals for the D.C. Circuit? The court has eleven seats (with eight presently filled), making it a reasonable size. It represents a diversity of political perspectives. And from a practical standpoint, the judges are already in Washington and therefore well-positioned to hear cases there. It’s also a reality that the D.C. Circuit is perhaps the most well-respected of all the Circuit Courts (with apologies to my beloved Fourth Circuit), so these judges get a thorough vetting when they go through the nomination process in the first place. Given that the D.C. Circuit is often called a stepping stone to the Supreme Court, why can’t it be a stand-in as well?

But here’s hoping all this turns out to be a moot point.

-Michael

Not So Smart?

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“One shouldn’t exaggerate the quality of judges and justices. Law isn’t the calling of geniuses. The Supreme Court today is composed of competent lawyers, and one should probably leave it at that.”

Judge Richard Posner, judge on the United States Court of Appeals for the Seventh Circuit, commenting on judges

Very Strange Footnotes In A Very Strange Supreme Court Brief

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According to Respondent's brief, Fred Pheps is the leader of "a small nondenominational independent Bible-believing flock in Topeka, Kansas."

The respondent’s brief [PDF] was filed in Snyder v. Phelps a few days ago, and it’s certainly worth a read.  As a reminder, here’s what the case is about (from SCOTUSblog):

The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed . . . to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade.  . . .

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to remarks that a private person made about another private person, occurring outside the site of a private event.  The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech.   The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters.

The “Kansas preacher,” of course, is Fred Phelps, founder of the Kansas church hate group, Westboro Baptist Church.  The brief in Snyder v. Phelps was filed by one of Phelps’ eleven lawyer children (obviously, these folks frequently face litigation).  Although the brief is more coherent than I expected, it definitely has some unusual features.

In particular, the footnotes of the brief go on some truly bizarre tangents.  Here are some of the strangest:

  • Footnote 2: A footnote contending that “funeral etiquette” demands that a private funeral be announced as private.  The footnote cites two of the internet’s most authoritative sources, About.com and Wikipedia.
  • Footnote 6: A footnote explaining that the funeral protests are not acts of revenge against Marines for a prior act of simulated anal sex.
  • Footnote 19: A footnote arguing that Westboro Baptist Church constitutes a religious “subculture.”
  • Footnote 21: A reference to The Encyclopedia of Death and Dying.
  • Footnote 22: A footnote contending that “the Scriptures” support Westboro’s Baptist Church’s position that funerals constitute an impermissible worship of the dead.  (With citations!)

No doubt oral arguments in this case should be . . . interesting.

-Michael

The Interesting Sub-Issue in Samantar v. Yousuf

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The Supreme Court issued its decision in Samantar v. Yousuf yesterday, in a 9-0 decision that I think got it right.  The Foreign Sovereign Immunities Act, says the Court, was not intended to codify common-law “official immunity”* or capture the act-of-state doctrine.  Rather, the FSIA’s text is clear that it applies to states and the entities that compose them.

Even though the Court was unanimous on its interpretation of the statute, it was not unanimous on the path taken to get there.  Thomas and Alito wrote terse one to two line concurring opinions decrying the use of legislative history in the principal opinion.  Scalia went a step further, refusing to concur in anything more than the judgment, all because the principal opinion was soiled with a drop of legislative history.

I kind of agree with Scalia on his point that references to legislative history are unnecessary when the text is clear.  And, given that even the principal opinion finds the text is clear, it seemed a bit superfluous to drop some legislative history into a footnote in an effort to further buttress the case.   Smarter people have written about the dangers of using legislative history in general, and I largely agree with them.

Still, I feel like this is one of those situations that demonstrates why people hate lawyers.  Did we really need 6 pages to go in the U.S. Reports for all of eternity because a few of the judges disagree with a footnote?  Probably not.  The slippery slope to widespread use of legislative history is unlikely to start in a supplemental footnote of an opinion construing a somewhat arcane statute.  The Supreme Court might have more time to decide substantive issues (in more cases) if it didn’t spend so much f@#%ing time wrestling over process issues like this one.

-Michael

*It was odd to me that they kept referring to “official immunity.”  I’ve always understood the doctrine as “head of state immunity,” which would suggest a much more limited application.  Maybe a future Supreme Court case?

Update: Michael Dorf discusses the squabbling.

Kagan Called on the Carpet for Quotation Marks

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The comical indictments of Kagan’s nomination keep on coming.  Again, the National Review (don’t ask me why I read this stuff) reprints some Kagan criticism from Doug Johnson of the National Right to Life Committee:

Regarding Ms. Kagan’s specific views on the Court’s past abortion-related rulings, there is little on the public record.  But Ms. Kagan may have betrayed a possible personal animus towards the pro-life movement in a 1980 essay lamenting Republican gains in the 1980 election, in which she referred disparagingly to “victories of these anonymous but Moral Majority-backed [candidates] . . . these avengers of ‘innocent life’ and the B-1 Bomber . . .”   Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term “innocent life” in quote marks, or does she have another explanation?

I think the National Review is having a lot of “success” digging up “troubling issues” on Kagan.  She should really be “worried.”  But why didn’t someone call out John Roberts (when he was a nominee) for his excessive use of semicolons, eh?!

-Michael

Bad Drivers = Bad Justices?

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I wouldn’t call myself Elena Kagan’s biggest fan, but some of the conservative attacks on her are getting ridiculous.  Here’s a particularly pitiful one from The National Review:

In addition to her kicking military recruiters off Harvard’s campus during wartime and being paid for a comfy position on a Goldman Sachs advisory board, this passage (from this article) nicely captures Elena Kagan’s remoteness from the lives of most Americans:

Kagan … is such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John’s University, it is a skill she has not yet mastered.

Apparently, kids, if you want to be a Supreme Court justice, you’d better do well in drivers’ ed.

-Michael