Tag Archives: supreme court

Slate’s Article on O’Connor Misses the Mark … Or Does It?

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Over at Slate, Emily Bazelon seems to have an article criticizing Justice O’Connor for retiring from the Supreme Court too early. One would at least think that from the subtitle, which reads: “Retired Justice O’Connor regrets the Supreme Court’s lurch to the right. So why didn’t she stay and prevent it?” As it turns out, O’Connor had a perfectly good reason for leaving the Court, as she’s said before:

O’Connor, who is still physically and mentally fit, said it was her plan to follow the tradition of previous justices, who enjoy lifetime appointments, to work until they die or are virtually incapacitated.

“Most of them get ill and are really in bad shape, which I would’ve done at the end of the day myself, I suppose, except my husband was ill [with Alzheimer's] and I needed to take action there,” O’Connor said.

So, if Bazelon means to attack her for leaving, I think she’s out of line. O’Connor left to care for a sick loved one.

But interestingly, the text of the article itself doesn’t talk much about O’Connor’s choice to leave. Instead, the article focuses on Justice O’Connor’s more moderate statements since leaving the bench and asks why O’Connor didn’t employ such moderation while she was still on the bench. (And it dregs up some more bitching about Bush v. Gore.)

So I find the article most interesting because it might demonstrate how writers are occassionally held accountable for the sins of their editors. The editors, of course, are the ones who write the headlines. I suspect in this instance that Bazelon’s editor didn’t really understand the import of the article. Or perhaps the editor was looking for a provocative question to drive pageviews and comments.

But in any event, the answer to Slate’s question is easy: no, Justice O’Connor didn’t leave the Court too early.

-Michael

Sotomayor’s Noncitizens [sic?]

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In her majority opinion in Moncrieffe v. Holder today, Justice Sotomayor repeatedly refers to “noncitizens,” even though the statute refers to “aliens.” Justice Alito wasn’t pleased, and even went so far as to call Justice Sotomayor out in a footnote for her semantic choice. As it turns out, the difference between “alien” and “noncitizen” is legally relevant. Aliens aren’t citzens, but they’re also not nationals. Compare 8 U.S.C. § 1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”), with §1101(a)(22) (defining “national of the United States”). Even international instruments–like the UN Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live–recognize a between aliens and noncitizens.

In other words, Justice Sotomayor used a word that embraces more people than it should.  So, her word choice might’ve accidentally extended a statute that applied only to aliens to folks like: (1) American Samoans; (2) natives of Swains Island; and (3) anyone living in the US Minor Outying Islands. (The distinction used to have even more importance back when residents of Guam, Puerto Rico, the Phillipines, and the U.S. Virgin Island were non-citizen nationals.)

In the future, if she doesn’t like the word alien, she might consider the term “nonnational,” since all citizens are indeed nationals.

Grammar nerds might also note that Sotomayor didn’t use a hyphen in “noncitizen.” The Chicago Manual of Style tells me that she’s justified in doing so. But Sotomayor has perhaps unintentionally taken sides in a grammar debate that seems to be silently raging within the U.S. Code. Compare 8 U.S.C. § 1452 (referring to “non-citizen” status), with 5 USC § 8138 (referring to “noncitizens”). How bold of her.

-Michael

[H/T: Josh Blackman]

The Oppression of the Printing Press?

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How Appealing took me to an interesting story today involving a man and his Supreme Court petition. Aaron Greenspan is pro se plaintiff who, having lost in the district and circuit courts, decided to take his fight all the way to the Supremes. But in trying to file a petition for certiorari, Greenspan learned a terrible lesson in font choices, page sizes, paper weights, and binding types. The Supreme Court, you seen, has some rather arcane rules about how briefs must look and even feel. (They must be in booklet form, with a certain type of binding, with certain type of paper, and with certain fonts and margins.  And unglossed paper only!) These rules can be overwhelming for a practicing attorney, let alone a pro se plaintiff like Greenspan.

No doubt frustrated by his experience in trying to prepare a Supreme Court brief without the aid of an expensive printer, Greenspan added an interesting little question to his petition:

WHETHER, this Court’s Rules regarding document submission … and the various conflicting rules of lower courts serve the interests of justice in an age of instantaneous and costless information transmission over the internet.

I don’t expect to see this petition on the Petitions to Watch list on SCOTUSBlog anytime soon. But it does present an interesting question: why does the Supreme Court require briefs to come in very particular ways? Is all this muss and fuss really necessary?

Some of these rules may very well be holdovers of an earlier time. They might be respected out of tradition. The Supreme Court’s love of Century Schoolbook, a font that looks like a very old font indeed, might be one example of that.

But many rules probably stem at least in part from necessity. Certain colored covers are needed to ensure that the right brief can be quickly extracted from a pile of briefs in a given case. Heavy paper is required so that briefs don’t fall to pieces when they are shuffled through the hands of the clerk’s office staff, the law clerks, and the justices. Small format “booklets” may be easier to transport from chamber to chamber; they’re also easier on the eyes when reading single-column text. Having never clerked for a Justice, I can’t be sure of the practical reasons for all these rules, but I have a suspicion that they’re there.

All that said, I do agree with Greenspan’s belief that these rules have an additional unspoken purpose. The Supreme Court, after all, accepts submissions from folks submitting in forma pauperis (that is, poorer petitioners) in a much simpler format. (It looks like this.) If they’re willing to read slightly less formal submissions from poorer people, why can’t they do the same for everyone?

As Greenspan suspects, the rules likely serve, at least in part, as a hoop-jumping exercise to discourage frivolous submissions to the Court. By making the submission process just a wee bit more difficult, they force the submitter to ask: is it worth it? Even Greenspan shows how the rules can be an effective deterrent in what some might say is a case not worth pursuing; he admits he didn’t want to pay for a professional printer because he was “fighting mostly, but not entirely, out of principle.” (The Supreme Court probably hopes not to waste much time on such battles for moral victory.) It made him consider whether this was a battle worth fighting. So, the printing rules act as a gatekeeper.

Greenspan sees this as an obvious problem. I’m not so sure, as gatekeeping is sometimes important in overworked courts. But for now, I think the most interesting thing is that these rules present these kind of important questions at all. I never would’ve guessed that so much controversy could be generated by margin requirements, font choices, and paper sizes. So kudos to Greenspan for making me think about paper and printing for a while.

-Michael

Kiobel: A Blessing In Disguise?

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When the Supreme Court first got hold of Kiobel v. Royal Dutch Petroleum, the case presented a relatively straightforward question: does the Alien Tort Statute allow for liability against corporations? Answering that question should have been a difficult enough task. But the Supreme Court wanted more, so it scheduled the case for a second argument that will consider whether the Alien Tort Statute applies extraterritorially–that is, whether (and when) it covers violations of the law of nations happening outside the United States.

For fans of the Alien Tort Statute, that second argument is a bad sign. Many (including me) worry that the Supreme Court is readying itself to use its trusty “presumption against extraterritoriality” to significantly weaken the statute. Many of the Justices’ questions at the first argument hinted that they didn’t want U.S. quasi-international law to reach outside the country. But if the Alien Tort Statute doesn’t punish acts outside the United States, it’s not likely to be of much use at all.

Yet after having some time to think it over, I’ve begun to wonder: would a “bad” Supreme Court decision really be that bad at all?

My assumption has always been that a Supreme Court decision squishing the Alien Tort Statute would spell the end of the matter. Plaintiffs would largely be out of luck, and international law professors around the country would have to find some other topic to occupy their time. But the reality is that the Supreme Court is often not the last word on a subject, especially where the subject concerns statutory (as opposed to constitutional) interpretation.

It’s actually pretty surprising how often Congress responds to Supreme Court decisions. Of course, there are some relatively well-known examples, such as the time when Congress “reversed” a Supreme Court employment discrimination case by passing an act named after the plaintiff in the case. But would you have ever guessed that Congress considers an average of 5 bills for each Supreme Court decision? That’s what one study found.

Of course, not all (or even many) of these Congressional responses are eventually passed. And some of these bills are positive “codifications” of Supreme Court decisions. Even so, the rate of “Congressional overrides” is surprisingly high, all things considered. According to one study, about one out of every ten Supreme Court statutory interpretation cases spurs Congress to issue legislation reversing or modifying the case. (Where the Court invalidates a statute for constitutional reasons, Congress has attempted to reinstate the statute in some form in 48% of cases.) The chance of Congressional reversal goes up when other factors are present, such as (1) when the decision is not unanimous, (2) there is significant media attention, (3) the United States was on the losing side of the case as an amicus, (4) there were a significant number of amici on the losing side, and (5) the case involves civil liberties issues.

If the Supreme Court guts the Alien Tort Statute in Kiobel, the case would seem to invite Congressional reversal. Kiobel has garnered a good amount of media attention. It’s drawn an enormous amount of amicus attention, too; 14 amicus parties supported the human rights victims in the initial argument, and a breathtaking 30 more briefs supported the victims in advance of the second argument. The United States initially supported the petitioner, even though it later switched its argument and now says it’s supporting “neither party.”  Thus, there are many voices supporting the Petitioner’s side. And when all is said and done, this case is not likely to be unanimous.

As I’ve said before, a negative decision for the petitioners in Kiobel also feeds the narrative that the Supreme Court loves corporations. (Just today, in fact, the Huffington Post had a blog article begging the Supreme Court to keep the “legal responsibilities” of corporations intact by finding for the Petitioner in Kiobel.) So Congress might be inclined to reverse Kiobel as convenient way to strike back at the Supreme Court’s purportedly cushy treatment of corporations–especially if Congress grows more liberal after the elections.

Congressional action would be welcome in this context. As it stands now, Alien Tort Statute litigation is something of a crapshoot. Some claims are allowed in some circuits and disallowed in others. The same is true when it comes to identifying “proper” defendants. Certainly, a Supreme Court decision in Kiobel could just as easily resolve this mess while keeping the statute intact. But the fuzzy treatment given to the statute in Sosa v. Alvarez-Machain makes me think that any Supreme Court decision in this area is likely to do a poor job of dispelling confusion. In contrast, when Congress enacts an override, research suggests that the legislation often does serve to clear up judicial confusion. Thus, Kiobel might convince Congress to finally get of its butt and do something about this vague little statute that hasn’t been touched since 1789, to ultimately better effect than a Supreme Court decision.

I’ll admit that I might just be stretching here to find a silver lining. But maybe, just maybe, this will all work out in the end.

-Michael

A Tax That Is Not a Tax Is a Tax

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Unfortunately, I don’t have much time today to comment on the Supreme Court’s big decision in the so-called Healthcare Cases.  But I drew some degree of satisfaction from the Court’s decision that the mandate was a tax.  Long-time readers of the blog (yes, all five of you) may recall that I made that argument almost two years ago.  It seems to have taken the Supreme Court quite a bit of time, paper, and angst to come around to my position, but I’m glad they ultimately did.

/smugness

-Michael

Do Over: The Supreme Court Takes a Second Shot at Kiobel

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In a move reminiscent of Citizens United, the Supreme Court has agreed to reargue Kiobel v. Royal Dutch Petroleum so as to reach an issue not squarely presented by the case in the first instance: whether the ATS applies extraterritorially.  Anyone watching the first (now moot) argument could get the sense that the Court was especially uncomfortable with the geographic broadness of the present statute. But, as counsel for the Petitioner emphasized during his argument, that was not a question presented. The Supreme Court, never letting the limits of a particular case get in its way, has now addressed that problem by slapping on the extra question itself.

This move strikes me as an exceptionally haphazard way of dealing with a complex statute. By gobbling up all of these questions in one case, the Supreme Court threatens to do a poor job of addressing any one particular issue.  I predict a sloppy opinion composed of various rudimentary answers to all sorts of ATS-related questions; I’d wager that the final product, a slapped-together product stumbling about like Frankenstein’s monster, will effectively emasculate the ATS and render Filartiga nothing more than an historical footnote.

-Michael

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