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This week at the court

On Monday at 9:30 a.m., the justices are expected to release additional orders from their November 15 conference.

On Friday, the justices will meet for their November 22 conference.

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Trump returns to Supreme Court, asks justices to intervene in dispute over financial records

Yesterday lawyers for President Donald Trump asked the Supreme Court to review a decision by the U.S. Court of Appeals for the 2nd Circuit ordering the president to provide New York prosecutors with his tax returns. Those lawyers were back at the court today, this time asking the justices to temporarily put on hold a decision by the U.S. Court of Appeals for the District of Columbia Circuit that upheld a subpoena for Trump’s financial records issued by House Democrats to Trump’s accounting firm, Mazars.

The subpoena at the center of the dispute came from the House Committee on Oversight and Reform, which wants the financial records as part of its investigation into the adequacy of current government ethics laws. The president filed this lawsuit to bar Mazars from turning over the documents, arguing that the subpoena goes beyond Congress’ authority because it does not serve a legitimate legislative purpose.

A federal trial court rejected this contention, and in October a divided three-judge panel of the D.C. Circuit upheld that ruling. The court of appeals concluded that the “public record reveals legitimate legislative pursuits,” rather than “an impermissible law-enforcement purpose behind the Committee’s subpoena,” and that the committee is investigating a subject on which it could enact legislation.

Arguing that “everything about this case is unprecedented,” Trump today asked the Supreme Court to block the D.C. Circuit’s ruling from going into effect on November 20 to give his lawyers time to file a petition for review of the lower court’s decision. If the D.C. Circuit’s ruling is allowed to stand, Trump complained in his 32-page filing today, “any committee of Congress can subpoena any personal information from the President; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in terms of divided government—no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

But the Supreme Court won’t be able to review the D.C. Circuit’s decision, Trump continued, unless the D.C. Circuit’s ruling is put on hold while Trump files his petition for review, because the committee plans to enforce the subpoena as soon as the D.C. Circuit’s ruling goes into effect – at which point Mazars will presumably turn over the documents that the committee seeks. “Respect for the office warrants a stay to prevent the President from suffering the irreparable harm of being denied further review because his case had been mooted through no fault of his own,” Trump told the justices. Moreover, Trump added, if his records are turned over, his confidential information may be disclosed, which is “the quintessential type of irreparable harm that cannot be compensated or undone by money damages.” Any harm or inconvenience to the committee from having to wait for the documents, Trump suggested, “pales in comparison” to the harm that Trump will suffer if the committee is allowed to enforce the subpoena.

Trump’s request goes to Chief Justice John Roberts, who handles emergency requests from the D.C. Circuit. Roberts can act on the request alone, but he will almost certainly refer it to the full court.

This post was originally published at Howe on the Court.

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TRIAL SKILLS WORKSHOP I: ADVOCACY STRATEGIES & SKILLS TO MAXIMIZE USE OF EXPERTS

Defender Services Office Training Events - Fri, 11/15/2019 - 15:00
Location: New Orleans, Louisiana
Date: January 23 - 25, 2020

This is an excellent opportunity for attorneys to learn about the value of experts to (a) help them understand complex areas that impact representation of clients and (b) to develop their courtroom skills, when presenting expert testimony in their cases and cross-examining government experts. Participants will learn from an experienced and highly skilled faculty in both plenary and small-group sessions. During the small-group sessions, participants will practice skills and receive feedback. Areas covered include: (1) identifying and screening experts to support the theory of the case, with practice sessions on screening, interviewing, records collection and qualifying the experts to testify, (2) using the Federal Rules of Evidence to make sure that experts are qualified and the reports and documents that further the defense theory are admitted into the record, (3) cross-examining the government’s expert witness and (4) preparing and examining the defense witness.

Justices grant four new cases

This afternoon the Supreme Court issued orders from the justices’ private conference earlier in the day. The justices granted four petitions for review, two of which will be consolidated, for a total of three additional hours of argument this term. The cases will likely be argued early next year.

Among the grants today was Google v. Oracle, a copyright case involving computer code. The case arises from Google’s reuse of so-called “declarations” that introduce short-cut programs written for the Java programming language. Google reused the declarations to make it easier for programmers familiar with the Java language to write applications for Google’s Android operating system. In two successive proceedings, the U.S. Court of Appeals for the Federal Circuit held that the declarations are copyrightable and that Google’s conduct was not fair use. The federal government had recommended that the court deny Google’s petition, expressing the government’s support for the Federal Circuit’s rulings.

The justices also granted two requests by the government to weigh in on the statute of limitations for old rape charges against members of the armed forces. The question arises in the case of Michael Briggs, a captain in the U.S. Air Force who in 2014 was charged with the 2005 rape of a member of his squadron. Under the version of the Uniform Code of Military Justice that was in effect when Briggs was charged, there is no statute of limitations for rape. At his court-martial proceeding, Briggs was found guilty, but an appeals court later ordered that the charge be dismissed. It reasoned that under a 2018 ruling by the same court, the five-year statute of limitations for the version of the UCMJ in effect in 2005 applied to Briggs’ offense. The court also ruled that a 2006 law that specifically provides that there is no statute of limitations for rape does not apply to rapes committed before 2006.

The government filed a separate petition for review in the case of two other members of the Air Force. Richard Collins was an instructor at an Air Force base in Texas. In 2016 he was found guilty of the August 2000 rape of a student in his course. As in Briggs’ case, an appeals court reversed Collins’ conviction, pointing to a 2018 decision by the same court. Humphrey Daniels was convicted in 2017 of the 1998 rape of a civilian near the North Dakota Air Force base where he was stationed; his conviction was also reversed.

The government appealed to the Supreme Court, asking the justices to grant both petitions. The government told the justices that sexual assault is “devastating to the morale, discipline, and effectiveness of our Armed Forces, but also difficult to uncover.” The request was supported by a “friend of the court” brief by Harmony Allen and Tonja Schultz – the victims of Collins and Daniels. Today the justices agreed to take up the case.

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets – which Walker had found while cleaning the rooming house that he managed – when responding to reports of drug sales at the house. Walker argues that the ACCA should not apply to his case. He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.

The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

More orders from today’s conference are expected on Monday at 9:30 a.m.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel for Google in Google v. Oracle. I am not affiliated with the firm.]

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Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, whether the government may commence removal proceedings by serving a noncitizen with a “notice to appear” that fails to specify the hearing’s time and place, whether the Fair Credit Reporting Act authorizes consumers to file civil suits against federal governmental agencies under 15 U.S.C. § 1681n and § 1681o, and whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.

The petitions of the week are below the jump:

Cargill Inc. v. Doe I
19-453
Issues: (1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country; and (2) whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.

Karingithi v. Barr
19-475
Issues: (1) Whether the government may commence removal proceedings by serving a noncitizen with a “notice to appear” that fails to specify the hearing’s time and place; and (2) whether deference under Auer v. Robbins allows an executive agency to interpret a regulation in a way that conflicts with a congressional statute.

Morgan v. Washington
19-494
Issue: Whether a government official who would like to seize someone’s personal property, and has both probable cause and the time to obtain a warrant, must bring his probable cause to a magistrate to obtain a warrant or may, under the plain-view exception, send a fellow officer to take the property.

Publishers Business Services Inc. v. Federal Trade Commission
19-507
Issues: (1) Whether a district court can award monetary relief under Section 13(b) of the Federal Trade Commission Act, consistent with separation-of-powers principles; and (2) whether a monetary disgorgement award under Section 13(b) of the FTC Act is a penalty and therefore outside a district court’s inherent equity powers.

Robinson v. Department of Education
19-512
Issue: Whether the Fair Credit Reporting Act authorizes consumers to file civil suits against federal governmental agencies under 15 U.S.C. § 1681n and § 1681o.

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President Trump’s taxes reach the Supreme Court

Late Thursday afternoon, the first case arising out of a subpoena dispute involving President Donald Trump reached the Supreme Court when the president’s personal lawyers filed a petition for a writ of certiorari in Trump v. Vance. But whereas the Vance case raises interesting questions about when the president can be sued in state court, it is likely to be overtaken in importance by other subpoena disputes making their way to the court—including the dispute over the House Oversight Committee’s subpoena to the Mazars accounting firm, in which the D.C. Circuit denied rehearing en banc on Wednesday, and in which a stay application may be filed with Chief Justice John Roberts as early as today.

The proceedings below

The Vance case arises out of a subpoena issued by New York County (Manhattan) District Attorney Cyrus Vance to Mazars for financial records as part of an ongoing state grand-jury proceeding that, as the U.S. Court of Appeals for the 2nd Circuit explained, “is investigating whether several individuals and entities have committed criminal violations of New York law.” As part of that investigation, Vance served a subpoena on Mazars in late August 2019 for “a wide variety of financial records dating from January 1, 2011 to the present and relating to the President, the Trump Organization, and several related entities.” That includes any “[t]ax returns and related schedules, in draft, as-filed, and amended form” within Mazars’ possession.

On September 19, Trump filed suit in federal district court in New York seeking to bar Mazars from complying with the subpoena. At the heart of the complaint are two related arguments: that, because the president cannot be criminally indicted while in office, he is absolutely immune from criminal process during the same time period; and that, at the very least, the supremacy clause of the Constitution bars state courts from issuing such process.

On October 7, U.S. District Judge Victor Marrero ruled against Trump on two alternative grounds. First, Marrero concluded that Trump’s request for a federal injunction of an ongoing state criminal investigation was barred by “Younger abstention”—which generally limits the ability of federal courts to block state criminal proceedings once they have begun. Second, and in the alternative, Marrero held that Trump was not entitled to an injunction because he could not demonstrate a likelihood of success on the merits.

After Marrero’s ruling, the parties entered in agreement under which, in exchange for Vance’s promising not to enforce the subpoena pending appeal, Trump agreed to strict time limits for pursuing such relief. Consistent with that agreement, Trump promptly appealed to the 2nd Circuit, which held argument on October 23 and ruled on November 4. Writing for a unanimous three-judge panel, Chief Judge Robert Katzmann rejected the first ground on which Marrero had relied, holding that Younger abstention did not apply. But he affirmed the denial of Trump’s motion for an injunction, agreeing that the president had not demonstrated a likelihood of success on the merits. As he noted, “The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in [United States v.] Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions.” Moreover, Katzmann continued, “we are not faced, in this case, with the President’s arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything. The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.”

As for the president’s argument that the supremacy clause bars state courts from issuing subpoenas that might be permissible in federal court, Katzmann again focused on the specific subpoena at issue: “while the President may be correct that state courts lack the authority to issue him orders—a question we have no need to address today—that provides no basis to enjoin the enforcement of a subpoena issued to a third party simply because the President is implicated in the subject matter of the investigation.” The court concluded:

We emphasize again the narrowness of the issue before us. This appeal does not require us to consider whether the President is immune from indictment and prosecution while in office, nor to consider whether the President may lawfully be ordered to produce documents for use in a state criminal proceeding. We accordingly do not address those issues. The only question before us is whether a state may lawfully demand production by a third party of the President’s personal financial records for use in a grand jury investigation while the President is in office.

The agreement between Vance and Trump gave the president 10 days from the filing of the 2nd Circuit’s decision to petition the Supreme Court for certiorari. Those 10 days expired yesterday.

The president’s petition

The petition filed in the Supreme Court describes the case as presenting far broader questions than those the 2nd Circuit stated it was deciding. In its opening sentence, the brief asserts that “[f]or the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process.” The central argument against the decision below is the claim that the subpoena “violates the absolute immunity that the President holds from state criminal process while in office.” In essence, the president’s personal lawyers are framing the subpoena as raising the very question the 2nd Circuit stated that it had not considered—whether the president himself can be subjected to coercive criminal process by a state court. Although the Supreme Court in Clinton v. Jones held that a sitting president could be subjected to coercive civil process so long as it related to conduct predating his tenure in office, it expressly reserved whether such process could also be issued by a state court, or whether only federal courts had such authority.

Under the parties’ agreement, Vance has seven calendar days to file a brief in opposition to the petition, and Trump has three calendar days to reply—meaning that the briefing on the cert petition should be complete by Monday, November 25. That timing is important because it would presumably allow for the petition to be distributed for the justices’ conference on December 13—the last time the justices will vote on new cases before the Supreme Court’s informal winter recess. (The next conference after December 13 is four weeks later—on Friday, January 10, 2020.) If the justices were inclined to take up the president’s appeal, that would allow the case to be fully briefed and argued during the court’s current term, with a decision by the last week of June.

A complicating factor is the other major subpoena dispute that is, by all accounts, about to reach the Supreme Court—the president’s effort to block a congressional subpoena to Mazars. Unlike the Vance case, the ruling of the U.S. Court of Appeals for the District of Columbia Circuit in the House Oversight Committee case (Trump v. Mazars USA, LLP) decided a far broader question about Congress’ subpoena powers, and thus has far more significant ramifications for other ongoing disputes than the Vance case, which is necessarily limited to the unique posture of a state investigation. And unlike in the Vance case, there’s no agreement between the parties to stay enforcement of the subpoena pending appeal. With the D.C. Circuit’s mandate set to issue next Wednesday, Trump’s lawyers have suggested that they will seek a stay of that decision as early as today. If that happens, it is likely that the justices will end up voting at least on whether to stay the D.C. Circuit’s decision in the Mazars case before they decide whether to take up the Vance case on the merits.

Thus, even though the Vance case is the first to reach the Supreme Court, it may not be the first to produce at least an interim decision from the justices. And given the very different questions the two cases present, the court’s disposition in Vance is likely to be not nearly as significant as its disposition in Mazars.

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Friday round-up

For USA Today, Richard Wolf reports that “President Trump asked the Supreme Court Thursday to block New York prosecutors from obtaining eight years of his tax returns, setting up a landmark separation of powers battle.” Jess Bravin, Brent Kendall and Corinne Ramey report for The Wall Street Journal (subscription required) that “[t]he filing marks a new phase in Mr. Trump’s battles with the judicial branch, thrusting the Supreme Court into the constitutional struggle between a norm-smashing president and law-enforcement authorities and congressional opponents.” At AP, Mark Sherman reports that “[a] second, similar case is headed to the court over a House committee subpoena demanding Trump’s financial records from the same accounting firm.”

At NPR, Nina Totenberg and Shontee Pant report that “[a] vast hall filled with members of the conservative Federalist Society Thursday night welcomed Supreme Court Justice Brett Kavanaugh as a conquering hero, while outside on a large screen protesters played video from Kavanaugh’s confirmation hearing of testimony by Christine Blasey Ford, the woman who accused him of sexual misconduct.” Richard Wolf reports for USA Today that Kavanaugh delivered “a self-effacing, 34-minute address almost completely devoid of controversial topics.”

Briefly:

  • In two posts at Reason’s Volokh Conspiracy, here and here, Josh Blackman weighs in on Department of Homeland Security v. Regents of the University of California, a challenge to the government’s decision to terminate the DACA program, which allowed immigrants brought to this country illegally as children to apply for protection from deportation.
  • The latest episode of Law360’s The Term podcast focuses on the oral argument in the DACA case, along with “the court avoiding gun maker Remington’s bid to stop a lawsuit by the families of Sandy Hook victims and Justice Ruth Bader Ginsburg’s absence from the court on Wednesday.”
  • At The Employment Law Group, R. Scott Oswald argues that Comcast v. National Association of African American-Owned Media, which involves pleading standards under a federal statute that prohibits race discrimination in contracting, “is a manifestly flawed vehicle for making law: A non-employment case that will impact mostly employment cases, concerning the dismissal of a complaint that omitted a key fact and was tainted by dubious insinuations, posing a false dichotomy between pleading standards that could be harmonized, and examining a decision from the U.S. Court of Appeals for the Ninth Circuit that added its own layer of shakiness.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Relist Watch

John Elwood hastily reviews Tuesday’s relists.

It’s a perfect storm: A week already shortened by Veterans Day made shorter still by an unprecedented gathering of highfunctioning introverts. So to make sure we have this out well enough ahead of possible Friday grants while still attending the events, we’ll keep this short too.

Six new relists this week. But I want to flag just two related cases for you: Competitive Enterprise Institute v. Mann, 18-1477, and National Review, Inc. v. Mann, 18-1451. Because there aren’t enough highstakes cases before the Supreme Court this term, the justices are now considering whether to take a case involving climate change — and free speech. As I discovered simply trying to track down replacements for broken hyperlinks in the decision under review, opinions in this area range from a quaintly old-fashioned “delete your account!” to statements so profane I need administrative privileges just to view them on a firm-owned computer. So the odds are against my describing this case without inspiring rage. But here goes.

Respondent Michael Mann is a professor of meteorology at Penn State University. In the late 1990s, he co-authored two papers concluding that global temperatures had risen sharply during the 20th century because of increasing carbon-dioxide levels in the atmosphere. Because of its shape, the graph depicting his findings came to be known as the “hockey stickgraph. In 2001, the Intergovernmental Panel on Climate Change included the graph in its Third Assessment Report. Fast forward to 2009, when a large number of private emails among climate scientists, including Mann, were leaked to the public, resulting in allegations that the scientists were manipulating the numbers to support a grave view of climate change. In 2012, Rand Simberg of the Competitive Enterprise Institute revisited those criticisms in a website post that compared Mann to another famous Penn State faculty member, former football coach Jerry Sandusky, who had recently been convicted of sexual misconduct, and suggesting that Penn State had likewise whitewashed Mann’s misconduct. Soon afterward, National Review published a post by columnist Mark Steyn linking to and quoting Simberg’s commentary.

Mann sued in D.C. Superior Court, alleging that Simberg’s and Steyn’s commentary defamed him. CEI and National Review argued that the columns involved nonactionable statements of opinion and moved to dismiss for failure to state a claim under the D.C. Anti-Strategic Lawsuits Against Public Participation Act. That law, which was adopted to stave off lawsuits targeting speech on matters of public concern, requires dismissal unless the plaintiff shows he is “likely to succeed on the merits.” The D.C. Superior Court judge concluded that the columns were not limited to opinion and that the claims of data manipulation involved an interpretation of facts. CEI and National Review appealed, but the D.C. Court of Appeals (no, not the U.S. Court of Appeals for the District of Columbia Circuit) affirmed. The court reasoned, in part, as follows:

To the extent statements in appellants’ articles take issue with the soundness of Dr. Mann’s methodology and conclusions — i.e., with ideas in a scientific or political debate — they are protected by the First Amendment. But defamatory statements that are personal attacks on an individual’s honesty and integrity and assert or imply as fact that Dr. Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable.

The court held that the motions to dismiss were properly denied.

CEI and National Review seek review at the Supreme Court, emphasizing the First Amendment importance of expressing opinions on a matter of obvious public interest, and in particular the importance of ensuring that the First Amendment standards employed in the nation’s capital are correct. Complicating everything is the fact that the D.C. Court of Appeals is the District of Columbia’s highest “local” court, akin to a state supreme court. The statute providing for Supreme Court review of decisions of “the highest court[s] of a state” only extends to “[f]inal judgments.” Because this involves an interlocutory appeal of the denial of a motion to dismiss, the cases raise the question whether this is one of the categories of interlocutory orders the Supreme Court has recognized to be “final decisions” subject to immediate review under Cox Broadcasting Corp v. Cohn. The court rescheduled these cases three times before discussing them at conference for the first time last week, so it’s clear they have generated serious interest. But rescheduled cases on the whole have not fared well in recent terms.

I’m going to leave you to Relist Watch SelectTM for the rest of this week’s relists, other than to note that they involve some fascinating issues: a First Amendment challenge to a Delaware constitutional provision requiring political balance on that state’s courts; whether rape in the military can be an offense “punishable by death,” exempting it from the statute of limitations, even if the Supreme Court has held that the death penalty can’t be imposed for it; and yet another Armed Career Criminal Act case. Until next time!

New Relists

Competitive Enterprise Institute v. Mann, 18-1477
Issues: (1) Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern; and (2) whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.
(rescheduled before the October 11, October 18 and November 1 conferences; relisted after the November 8 conference)

National Review, Inc. v. Mann, 18-1451
Issues: (1) Whether the question of whether a statement contains a “provably false” factual connotation is a question of law for the court (as most federal circuit courts hold), or is a question of fact for the jury when the statement is ambiguous (as many state high courts hold); and (2) whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct.”
(rescheduled before the October 11, October 18 and November 1 conferences; relisted after the November 8 conference)

United States v. Briggs, 19-108
Issue: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
(relisted after the November 8 conference)

United States v. Collins, 19-184
Issue: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
(relisted after the November 8 conference)

Carney v. Adams, 19-309
Issues: (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; and (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts.
(relisted after the November 8 conference)

Walker v. United States, 19-373
Issue: Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act.
(relisted after the November 8 conference)

Returning Relists

Gundy v. United States, 17-6086
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

Paul v. United States, 17-8830
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the September 24, 2018, June 27, 2019, October 18, 2019, November 1, 2019, and November 8, 2019, conferences)

Caldwell v. United States, 18-6852
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the February 15, June 27, October 18, November 1 and November 8 conferences)

Terry v. Oklahoma, 18-8801
Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

Isom v. Arkansas, 18-9517
Issue: Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

McGirt v. Oklahoma, 18-9526
Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

Peithman v. United States, 19-16
[Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to an amicus in this case.]
Issue: Whether 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture imposed jointly and severally among co-conspirators, as the U.S. Courts of Appeals for the 6th and 8th Circuits have held, or whether such joint and several liability is foreclosed under the reasoning of Honeycutt v. United States, as the U.S. Court of Appeals for the 3rd Circuit has held.
(relisted after the October 11, October 18, November 1 and November 8 conferences)

Google LLC v. Oracle America, Inc., 18-956
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
Issues: (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. CVSG: 09/27/2019.
(relisted after the November 1 and November 8 conferences)

Thompson v. Hebdon, 19-122
Issue: Whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment.
(relisted after the November 1 and November 8 conferences)

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Thursday round-up

Yesterday the court heard argument in Comcast v. National Association of African American-Owned Media, in which the justices considered whether, in a claim under a federal statute that prohibits race discrimination in contracting, a plaintiff is required to show that the defendant’s action would not have been taken but for the alleged discrimination. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. For The New York Times, Adam Liptak reports that “[a] cautious Supreme Court … seemed to be looking for a narrow way to rule in a racial discrimination case against Comcast, the nation’s largest cable company, by a black entrepreneur who contends his race played a role in the company’s decision not to carry programming from his network.” Richard Wolf reports for USA Today that the court “appeared likely … to let [the] claim … go forward, even though it might be difficult to prove,” [b]ut both liberal and conservative justices indicated that while there may be enough evidence of racial bias for now, [the plaintiffs] eventually would have to prove that race was the deciding factor for Comcast.”

At The National Immigration Law Center blog, Trudy Rebert observes that in Department of Homeland Security v. Regents of the University of California, a high-profile challenge to the Trump administration’s decision to terminate the DACA program that was argued on Tuesday, the court is “being asked to decide what government accountability means in our democracy.” At Reason’s Volokh Conspiracy blog, Josh Blackman worries that the court may “rule that the rescission memorandum is not subject to judicial review,” which would “leave open the legality of the policy for the foreseeable future”; he cautions that “[a] punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.”

At Quartz, Ephrat Livni looks at Tuesday’s argument in Hernandez v. Mesa, a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border, suggesting that “it may well turn out that the court and the executive branch—which found [the agent] didn’t use excessive force—do speak with one voice.” Steven Mazie writes at The Economist that “[t]he ruling seems destined to come out 5-4 and hinge on Justice Brett Kavanaugh, who was alternatively receptive to and critical of both sides.” At Slate (via How Appealing), Mark Joseph Stern argues that a ruling against the family would invite Customs and Border Patrol to “ignore the Constitution altogether.”

At The Marshall Project, Maurice Chammah writes that “[t]he case of Rodney Reed, who is scheduled to be executed in Texas on Nov. 20, is unique not only because of the celebrities promoting his claims of innocence,” but “also because of the sheer volume of evidence implicating someone else for the crime for which Reed was sentenced to die, the 1996 murder of Stacey Stites, in Bastrop, Texas.” Jordan Smith takes a close look at the case at The Intercept.

Briefly:

  • For this blog, Katie Bart reports that last night the court allowed the execution of Ray Jefferson Cromartie, who was sentenced to death for the 1994 murder of Richard Slysz, to go forward; Georgia executed Cromartie by lethal injection at 10:59 p.m.
  • Greg Stohr reports at Bloomberg that “Justice Ruth Bader Ginsburg missed Wednesday’s … argument session, staying home with what a court spokeswoman said was a stomach virus.”
  • Ronald Mann analyzes yesterday’s argument in Ritzen Group Inc. v. Jackson Masonry, LLC, in which the court will decide whether an order denying a creditor’s motion to lift an automatic stay of efforts by creditors to collect debts from the debtor is a final order that the creditor can appeal, for this blog.
  • At Reuters’ On the Case blog (via How Appealing), Alison Frankel observes that the court’s denial Tuesday of a cert petition by firearms manufacturer Remington in a case brought by relatives of the victims of the Sandy Hook shootings “left open a pathway for more litigation against an industry that has been almost entirely shielded for 15 years.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Justices refuse to block execution of Ray Jefferson Cromartie

The Supreme Court last night denied both applications (here and here) to block the execution of Ray Jefferson Cromartie, who was sentenced to death for the 1994 murder of Richard Slysz. Georgia was set to execute Cromartie by lethal injection at 7:00 p.m. EST yesterday, but the state was delayed over three hours while his final appeals were before the justices. According to reports, Cromartie was executed at 10:59 p.m.

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Argument analysis: Justices lean toward validating immediate appeals of bankruptcy orders denying relief from the automatic stay

I suggested in my preview of Ritzen Group v. Jackson Masonry that the argument might tell us a great deal about how the Supreme Court will approach this technical bankruptcy matter. And for once I think I was right, as the argument suggested a considerable consensus on the bench about how to address the issues in this case. Ritzen Group is not one of the most important cases on the court’s docket this fall. Indeed, I doubt informed bankruptcy professionals would even place it anywhere on a list of pressing concerns in bankruptcy practice. Rather, this is a case the justices are hearing solely because they are persuaded that the lower courts are in conflict.

The case involves the Bankruptcy Code’s “automatic stay,” which stops all litigation and collection activity involving the debtor at the moment the debtor files for relief in the bankruptcy court. The Bankruptcy Code has a process under which creditors can ask the court to lift the stay, most commonly based on the argument that a creditor’s lien on some particular asset makes it improbable that other claimants would get any value from retaining the asset in the bankruptcy process. The specific question in Ritzen Group is whether a creditor frustrated by the bankruptcy court’s refusal to lift the stay can appeal that decision separately or instead must wait to challenge it at the end of the case. The lower courts held that immediate appeals are appropriate. Because petitioner Ritzen Group failed to appeal promptly, its appeal was ruled untimely. The debtor, Jackson Masonry, defends that outcome before the justices.

Representing Ritzen Group, the late-appealing creditor, James Lehman argued that it was proper not to appeal from the bankruptcy court’s denial of relief because the bankruptcy court could have reconsidered its order at any time. Several of the justices were notably skeptical of Lehman’s argument. For example, Justice Samuel Alito pressed him early on to explain, if the denial of relief wasn’t final when entered, exactly “when would it become final? At the end of the case?”

Alito’s rejection of Lehman’s perspective became increasingly evident as the argument progressed. At one point Alito commented that “I’m not sure I quite understand why … an order saying, ‘No, I’m not granting relief [in that] proceeding,’ is not final?” When Lehman stuck to his position, Alito sarcastically responded: “[W]hat if the order denying relief from the stay says, ‘And this is the final word on this subject. This is not going to be reexamined.’ It’s not final?”

Alito seemed to be motivated by the practical problem a creditor would face if it had no separate right to appeal from a motion denying relief from the stay, as he pressed Lehman repeatedly to tell him when “the party who sought relief from the stay [can] take an appeal?” Chief Justice John Roberts shared that perspective, emphasizing what he regarded as the impracticalities of dealing with such an important issue at the end of the entire proceeding. As Roberts put it, if you obligate the creditor to wait until the end of the case, “[t]he bankruptcy has concluded, and part of the bankruptcy is you’re divvying things up, and depending on how much this person gets, that person gets more, but now you say you’ve got to go back and start over? … I don’t understand how you can unscramble that egg.”

Justice Stephen Breyer pressed Lehman on a somewhat different point, the lack of parallelism between a decision to lift the stay (from which a debtor ordinarily can appeal) and a decision refusing to lift the stay (from which there should be no appeal, according to Lehman). As Breyer put it:

If the debtor can appeal [when the court decides to lift the stay], why can’t the creditor appeal if [the court] reaches the opposite conclusion. In both cases, I imagine the immediate appeal is given because, in many instances, though certainly not all, getting rid of a creditor or keeping a creditor will change in a pretty significant way the nature of the final plan. Now what have I said wrong?

This is not to say that the argument of Griffin Dunham, representing the debtor, Jackson Masonry, was entirely smooth sailing. Two threads were relevant. First, Roberts and Breyer pressed the idea that the motion to lift the stay was more procedural than substantive, because it had no effect on the underlying dispute. If you treat it like a motion for summary judgment, they suggested, then a judge’s refusal to lift the stay did so little to advance resolution of the case that perhaps an appeal would be premature. As Roberts quipped, once the judge rules on the stay motion, “there’s nothing left to do between the parties other than litigate the case.” Following up on that point, Breyer emphasized that a denial of summary judgment traditionally is treated as nonfinal: “A summary judgment motion, once it’s decided, there’s nothing left to do in respect to the summary judgment motion. … Do you want to say the summary judgment motion is final?” If a summary judgment motion is the appropriate analogy, then creditors should have no right to appeal from a decision refusing to lift the stay.

Justice Neil Gorsuch took a different tack, noting that the bankruptcy rules (and common practice) embrace the idea that bankruptcy judges can change their minds about stay relief at any time, deciding to lift the stay months or years after an initial decision refusing to lift the stay. He asked Dunham: “I think you’d agree … if [the judge’s refusal to lift the stay] can be [reconsidered at any time], does that pose a problem for you? … [H]ow do you call something final if it’s subject to reconsideration by a judge for a considerable period of time?”

With Justice Sonia Sotomayor joining in the discussion, Gorsuch advanced that “inherently nonfinal” point for a considerable part of Dunham’s argument and the argument of Assistant to the Solicitor General Vivek Suri, who appeared on behalf of the government in support of Jackson Masonry. As Suri explained, the logical consequence of the point would be that little if anything from the early stages of a bankruptcy case would be appealable, a position that is hard to square with the statutory appellate framework (which plainly contemplates appeals whenever the bankruptcy court completes a “proceeding” within the overall bankruptcy case). Suri seemed to make up considerable ground with Gorsuch near the end of his presentation, when he explored a distinction in the bankruptcy rules between a “preliminary denial” of stay relief and the more conclusive denial of stay relief at issue here.

The argument does not suggest a bench that is conclusively or unanimously settled on a single answer to this case. But it does suggest a bench leaning toward a resolution that would permit a creditor an immediate appeal when a bankruptcy court refuses to lift the stay. My prediction is that the justices will spend a fair amount of time sorting out the various arguments and issue a decision that is nearly unanimous sometime before the end of February.

Editor’s Note: Analysis based on oral argument transcript.

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Argument analysis: Justices debate, but do not resolve, pleading standard for lawsuits alleging racial discrimination in contracts

This morning the Supreme Court heard oral argument in a lawsuit filed by Entertainment Studios Network, a media company owned by African American entrepreneur and entertainer Byron Allen, against cable giant Comcast. ESN and the National Association of African American-Owned Media, an organization with which ESN is affiliated, argue that Comcast violated 42 U.S.C. Section 1981, a federal law barring racial discrimination in contracts, when it declined to carry channels that ESN produced. The question before the justices centered on what ESN is required to allege for its lawsuit to go forward: Is it enough, as the U.S. Court of Appeals for the 9th Circuit ruled, that the complaint contends that race was a “motivating factor” behind the defendant’s decision, or (as Comcast maintains) must the complaint instead assert that the decision would have been different were it not for the plaintiff’s race? After an hour of oral argument, the justices seemed likely to strike down the 9th Circuit’s ruling, but it was less clear what standard they would select to replace it. It also seemed possible that ESN’s case might survive and move forward, at least for now.

There seemed to be little support among the eight justices – Justice Ruth Bader Ginsburg was out with what the court’s Public Information Office described as a stomach bug, but will participate in the case – for the 9th Circuit’s decision. As Justice Elena Kagan pointed out to Erwin Chemerinsky, who argued on behalf of ESN and NAAAM, the court of appeals ruled that ESN could win its case (rather than simply advancing it) if it could show that “discriminatory intent was a factor” in Comcast’s decision not to enter into a contract with ESN. “Don’t you think,” Kagan asked Chemerinsky, “the Ninth Circuit has to be reversed?” Justice Neil Gorsuch chimed in, “Don’t you agree that the Ninth Circuit was wrong?”

The debate focused primarily on what standard (if any) should be used, but there was no clear consensus. Chemerinsky endorsed a two-tiered approach, which would allow a case to go forward as long as the plaintiff alleged that race was a motivating factor in the defendant’s decision, but would only allow him to prevail if he could show that the defendant would have made a different decision were it not for the plaintiff’s race.

But several justices regarded such an approach as problematic. Gorsuch suggested that it would be “unusual” for the Supreme Court to “apply different legal standards at different stages of the same case.” Justice Samuel Alito asked whether a case that acknowledges that it could not meet the more stringent standard “at the end of the day” should be allowed “to go forward to its inevitable doom?”

Chief Justice John Roberts regarded the difference between the two standards as “somewhat academic.” He told Miguel Estrada, who argued on behalf of Comcast, that even when there is “racial animus” during the process of negotiating a contract, it could still be hard to show that the defendant would have reached a different result were it not for the plaintiff’s race. At the same time, Roberts continued, “it’s also hard to ignore the part” that racism may have played, and it “may be a reasonable allegation” that the racism continued, even if it only showed up clearly at one point in the process.

Other justices seemed to seize on this point, suggesting that the answer is not a standard that focuses on whether racism was a “motivating factor” or the primary influence on the defendant’s decision, but instead a more holistic look at the plaintiff’s contentions. Kagan acknowledged that “you don’t want people throwing around baseless allegations,” but she also emphasized that courts would be deciding whether the case can move forward before fact-finding, at which point the “plaintiff isn’t going to know everything else that could have been in the defendant’s mind.” The solution, she proposed, would be to allow the complaint to proceed “as long as the plaintiff comes forward with sufficient allegations” to show that racism was involved in the defendant’s decision.

Justice Stephen Breyer seemed to agree. He asked Morgan Ratner, the assistant to the U.S. solicitor general who argued on behalf of the federal government in support of Comcast, “If we’re talking about pleadings, what’s the difference?” If the plaintiff provides evidence, Breyer queried, that the defendant “used race improperly to deny” him the contract, “who cares whether they say it was a motivating factor or whether they say it was a but-for?”

Justice Brett Kavanaugh echoed this thought. Stressing that discrimination cases “are not usually thrown out at the motion-to-dismiss stage,” and that you instead “usually have the ultimate legal test in mind,” he asked Chemerinsky to weigh in on a test that would “look at the facts alleged in the complaint to see” “whether you could plausibly infer from those facts” that the plaintiff could prevail.

Kavanaugh reiterated that “it’s pretty rare to throw out” discrimination complaints after a motion to dismiss, observing that the complaint only needs to pass “a pretty low bar” – suggesting that ESN’s complaint would survive even if the Supreme Court were to vacate the 9th Circuit’s ruling in its favor. And Alito suggested that, even if ESN’s complaint were subjected to a tougher standard, the company had still alleged enough facts for its case to be able to move forward.

Today’s oral argument focused almost entirely on the text, history and operation of Section 1981, with relatively little discussion of the broader implications of the court’s ruling. But the business community and civil rights groups are watching this case closely. Estrada touched briefly on the potential consequences of a ruling in favor of ESN, telling the justices that if the 9th Circuit’s ruling is affirmed, it will be “vastly easier” for employees to obtain damages under Section 1981 than under the “carefully tailored regime” that Congress created in Title VII of the Civil Rights Act for employment discrimination cases. For their part, ESN and its supporters told the justices in their briefs that a ruling for Comcast would “shut the doors to the federal courts” for many African American businesses.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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Empirical SCOTUS: The recent role of separate opinions

In a 2015 article for The Washington Post reviewing Melvin Urofsky’s book, “Dissent and the Supreme Court,” David Cole wrote, “What determines a great dissent … is not necessarily the power of the argument but the shifting tides of history. … History, not rhetoric or cogency, determines whether a dissent wins out in the long run. Yet by articulating a compelling alternative legal vision, a persuasive dissent can contribute to the arc of historical change.” Not only dissents, but all separate Supreme Court opinions have the potential to become law in later iterations of the court’s business.

Yet not all Supreme Court scholars view separate opinions positively. In a recent article, Professor Suzanna Sherry proposed not only eliminating dissents and separate opinions altogether, but also ending the practice of justices’ signing their names to opinions in order to do away with, or at least minimize, the celebrity status bestowed upon Supreme Court justices. In the space between praise for and criticism of separate-opinion writing, this analysis looks at how majority opinions have utilized separate opinions to generate and refine arguments that have directed the trajectory of the law over the past few terms.

Often separate opinions from previous decisions give justices templates for rectifying previous errors (from the justices’ perspectives) or updating the law to conform to current circumstances. The justices’ choices of which previous separate opinions to cite in majority opinions follow several well-worn paths. Certain justices tend to cite particular other justices. Certain cases tend to accrue greater numbers of cites from previous separate opinions. Particular justices more regularly cite prior separate opinions than other justices, and certain justices’ prior separate opinions are cited more often in the aggregate. The analysis in this post looks at majority opinions from the 2016 through 2018 terms that cite separate opinions from prior decisions (specifically, not separate opinions from the same cases as the majority opinions).

Separate opinion utility

Looking back at some of the most impactful dissents as measured using Cole’s criteria, Justice John Paul Stevens’ dissent from Bowers v. Hardwick presaged Justice Anthony Kennedy’s majority opinion in Lawrence v. Texas:

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” …

Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.

Pointing to prior dissents when overturning majority opinions from those very cases is not uncommon. Justice Clarence Thomas employed a similar tactic with his majority opinion in last term’s Franchise Tax Board v. Hyatt, which overturned the court’s decision in Nevada v. Hall. Several times in his opinion, Thomas pointed to dissents in Hall. He looked to then-Justice William Rehnquist’s dissent in stating, “Hall’s determination that the Constitution does not contemplate sovereign immunity for each State in a sister State’s courts misreads the historical record and misapprehends the ‘implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.’ (Rehnquist, J., dissenting).” Thomas cited Justice Harry Blackmun’s dissent to argue that “[t]he Constitution implicitly strips States of any power they once had to refuse each other sovereign immunity, just as it denies them the power to resolve border disputes by political means. Interstate immunity, in other words, is ‘implied as an essential component of federalism.’ Hall, 440 U. S., at 430–431 (Blackmun, J., dissenting).”

Separate opinions not only have supported propositions in majority opinions overturning prior decisions but also have led to legislative adjustments when Congress disagreed with Supreme Court decisions. One example was the passage of the Lily Ledbetter Fair Pay Act in reaction to the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. Ledbetter was an employment-discrimination case in which the female plaintiff alleged that she was paid less than similarly situated male employees. Under Title VII of the Civil Rights Act of 1964, employers cannot be sued for race or gender pay-discrimination if the claims are based on decisions made by the employer more than 180 days earlier. The court ruled 5-4 that Ledbetter had not brought her claim within the required 180-day window, rejecting her argument that each paycheck received constituted a separate discriminatory act. Justice Ruth Bader Ginsburg’s dissent in the case emphasized that the majority’s rule unfairly required pay-discrimination plaintiffs to file suit before they could realistically determine that any discriminatory pay practices existed.

When Congress debated the Ledbetter Fair Pay Act, several legislators pointed to Ginsburg’s dissent in the case:

  • Congressman Steny Hoyer: “In fact, every paycheck that Lilly Ledbetter received after Goodyear’s decision to pay her less was a continuing manifestation of Goodyear’s illegal discrimination. As Justice Ginsburg said in dissent, each subsequent paycheck was ‘infected’ by the original decision to unlawfully discriminate.”
  • Congressman John Conyers: “By passing this legislation here today, Congress will be heeding Justice Ruth Bader Ginsburg’s call to stand up and ensure that no American’s income should be determined by race, sex, creed, color, or sexuality.”
  • Congresswoman Nancy Boyda: “Justice Ruth Bader Ginsburg was one of the four Supreme Court justices who disagreed with the ruling, and she called upon Congress to act. H.R. 2831, the Lilly Ledbetter Fair Pay Act is Congress’s response. … While I respect the Supreme Court, I believe that Justice Ginsburg was correct when she stated that the Court’s decision ignored real-world employment practices. This is not a gender issue; all employees should have an equal chance of getting a just wage.”
  • Congresswoman Betty McCollum: “In this decision, the Court ruled that Lilly Ledbetter, a former supervisor at a tire plant in Alabama, was not eligible to receive back pay for pay discrimination because she had not filed her claim within 180 days after the first ‘unlawful employment practice occurred.’ However, as Justice Ruth Bader Ginsburg highlighted in her dissent, pay discrimination occurs over time in small increments and is frequently not discovered for many years. It is more than disappointing that this decision increases the barriers to fair compensation for victims of pay discrimination.”

On January 27, 2007, the House of Representatives passed the Ledbetter Fair Pay Act by a 250–177 margin.

Statistics

Several practices are apparent when looking at Supreme Court justices’ citations to separate opinions from previous cases. These cites tend to cluster in specific cases and, not surprisingly, often relate to when the court overturns its past decisions.

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Three of the cases with the most cites in the majority opinion to previous separate opinions — Janus v. AFSCME, Knick v. Township of Scott and South Dakota v. Wayfair — all involved overturning past precedent. The court also considered overturning past decisions in two of the other cases with high separate opinion-citation numbers, American Legion v. American Humanist Association and Kisor v. Wilkie. This trend is consistent with the qualitative evidence educed above.

Interestingly though, the bulk of citations to separate opinions from the past three terms did not come from prior dissents.

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In fact, cites to concurrences outnumbered cites to dissents 111 to 83. Twenty of the citations were to mixed concurrences and dissents.

Of the current justices, Justice Samuel Alito cited the most separate opinions in his majority opinions during this period.

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Alito’s cite count runs so high in part due to the fact that he authored the three majority opinions with the most citations to prior separate opinions: Janus, American Legion and Tennessee Wine and Spirits Retailers Association v. Thomas (which is one of several majority opinions that contain nine cites to prior separate opinions). Alito not only cited the most dissenting opinions but also cited the most concurrences and dissents in part. Roberts cited the second most prior separate opinions with 42. His mix of citations is far more weighted toward concurrences, which constitute 31 of his 42 cites. Justice Stephen Breyer cited the fewest separate opinions with three; all came from concurrences.

In what will probably not surprise many court-watchers, the justice whose prior separate opinions were cited most often was Justice Antonin Scalia, who had some of the most notable dissents over the past several decades.

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What might surprise some, though, is that Scalia was cited equally for his dissents and concurrences. The second-most-cited justice, Thomas, was one of the most prolific dissenters of the past several terms. Thomas’ dissents were cited more often than his concurrences, but only by a ratio of 13 to 11. Kennedy and Alito were the third and fourth most-cited justices. Multiple retired justices were also cited frequently, including Rehnquist 10 times and Justice William Brennan nine.

The justices also seem to have developed patterns in citing particular other justices’ opinions.

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The greatest number of cites from any of these relationships is between Justice Elena Kagan and Scalia. Kagan cited Scalia’s opinions 11 times, including seven dissents, three concurrences and one concurrence and dissent in part. Kagan’s seven cites to Scalia’s dissents topped the count for one justice’s cites to another’s dissents, and was followed by Alito’s six cites to Thomas’ dissents. In terms of concurrences, Gorsuch cited Thomas seven times, the most among the justices, followed by Roberts’ six citations to Sotomayor’s concurrences. Gorsuch also had the second-most cites to a particular justice after Kagan’s cites to Scalia’s opinions, with his eight cites to Thomas’ separate opinions.

The justices are clearly strategic in their use of separate-opinion cites within their majority opinions. This gives the justices a chance to develop the judicial record in a manner that conveys compelling ideas that did not initially form the basis of law. Cites to secondary opinions give these cogent analyses new life by incorporating them within the court’s majority opinions, occasionally pointing out flaws in previous majority opinions. The justices utilize this practice in varying degrees, but as a general matter, they appear to look to past separate opinions frequently, both to rehash old ideas and to help justify new ones.

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Wednesday round-up

This morning the Supreme Court wraps up the November session with two more oral arguments. The first case today is Comcast v. National Association of African American-Owned Media, in which the court will decide whether, in a  claim under a federal statute that prohibits race discrimination in contracting, a plaintiff is required to show that the defendant’s action would not have been taken but for the alleged discrimination. Amy Howe had this blog’s argument preview, which first appeared at Howe on the Court. Thomas Shannan and David Relihan preview the case at Cornell Law School’s Legal Information Institute.

Today’s second argument is in Ritzen Group Inc. v. Jackson Masonry, LLC, in which the court will decide whether an order denying a creditor’s motion to lift an automatic stay of efforts by creditors to collect debts from the debtor is a final order that the creditor can appeal. This blog’s preview came from Ronald Mann. Emma Horne and Nicole Jaeckel preview the case for Cornell.

This blog’s coverage of yesterday’s oral argument in Department of Homeland Security v. Regents of the University of California, a high-profile challenge to the Trump administration’s decision to terminate the DACA program, comes from Amy Howe, in a post that first appeared at Howe on the Court. Mark Walsh provides a first-hand view of the argument for this blog. For USA Today, Richard Wolfe reports that the court “appeared likely to side with the Trump administration in its effort to end a program that lets nearly 700,000 young, undocumented immigrants live and work in the United States without fear of deportation.” At the Daily Caller, Kevin Daley reports that “[t]he high court’s conservative majority appeared to think the administration has provided an adequate basis for ending the policy, and in spaces even wondered if the courts had power to review the dispute.” Robert Barnes reports for The Washington Post (subscription required) that “[t]he Supreme Court’s somewhat reluctant review of the DACA program — it waited for months before accepting the case — meant that, for the third consecutive year, the high court will pass judgment on a Trump priority that has been stifled by federal judges, this time in a presidential election year and in a case with passionate advocates and huge consequences.” Additional coverage comes from Nina Totenberg at NPR, here and here, Mark Walsh at Education Week, Pamela King at E&E News, Shannon Bream and Bill Mears at Fox News, and Joan Biskupic at CNN, who writes that Chief Justice John Roberts “was yet again at the decisive middle of a contentious dispute.”

Amy Howe analyzes yesterday’s second argument, in Hernandez v. Mesa, a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border, for this blog, in a post that first appeared at Howe on the Court. For The Washington Post (subscription required), Ann Marimow reports that the court “expressed concern … about the implications for U.S. foreign policy and national security if the families of Mexican teenagers killed by Border Patrol agents in cross-border shootings were allowed to sue in American courts.”

Yesterday the court issued additional orders from last week’s conference, adding no new cases to its merits docket. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. Elizabeth Williamson and Kristin Hussey report for The New York Times that the court declined to “hear an appeal in a case seeking to pierce firearm manufacturers’ legal immunity in the aftermath of shootings, allowing relatives of victims from Sandy Hook Elementary School to sue Remington Arms Co., maker of the rifle used there, in Connecticut courts.” Additional coverage comes from Mark Walsh at Education Week, who reports that “[t]he lawsuit brought by parents of nine of the Sandy Hook victims argues that Remington and other defendants negligently entrusted to civilians an AR-15-style assault rifle that is suitable for use only by military and law enforcement personnel.”

Briefly:

  • At The Washington Times, Alex Swoyer reports that “[a] federal court delayed a cop killer’s execution in Texas for the second time after the Supreme Court said the man deserves to have his Buddhist priest in the execution chamber the same way the state allows clergy to accompany Christian inmates.”
  • For The New Yorker, Margaret Talbot profiles Justice Elena Kagan, who “is emerging as one of the most influential Justices on the Court—and, without question, the most influential of the liberals.”
  • At Gambit, Kaylee Poche looks at the implications of “a lesser known legal argument” in June Medical Services v. Gee, which asks whether a decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with a recent precedent: Louisiana’s argument “that abortion providers should not have what’s called third-party standing — the ability to sue on behalf of their patients to challenge health and safety regulations.”
  • At Empirical SCOTUS, Adam Feldman analyzes the justices’ use in recent majority opinions of citations to separate opinions in prior cases, concluding that “[t]he justices utilize this practice in varying degrees, but as a general matter, they appear to frequently look to past separate opinions to rehash old ideas and to help justify new ones.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Justices allow Sandy Hook lawsuit to go forward

This morning the Supreme Court issued more orders from last week’s private conference. After granting one new case last Friday, the justices did not add any new cases to their merits docket for the term, nor did they make any new requests for the views of the federal government.

The justices turned down a request by Remington Arms Co., a gun manufacturer, to block a lawsuit brought against the company by the families of the victims of the 2012 Sandy Hook shootings, in which 20 first graders and six school employees were killed. The plaintiffs allege that Remington, which makes the assault rifle used in the attack, violated Connecticut unfair-trade-practices laws by selling and marketing the rifle to civilians.

Remington had countered that the federal Protection of Lawful Commerce in Arms Act, which generally gives gun manufacturers and sellers immunity from lawsuits “resulting from the criminal or unlawful misuse” of guns by others, shields it from liability. However, the law carves out an exception that allows lawsuits to go forward when the manufacturer or seller knowingly violated state or federal law governing the sale of guns, and that violation caused the harm at issue. Remington urged the Supreme Court to grant review of the Connecticut Supreme Court’s decision allowing the case to go forward, alleging that the state court had read the exception too broadly, but today the justices turned Remington down without comment.

The justices’ next conference is scheduled for this Friday, November 15.

This post was originally published at Howe on the Court.

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Argument analysis: Justices divided in cross-border shooting case

For the second time in less than three years, the family of Sergio Hernandez was at the Supreme Court today for oral argument. In 2010, Sergio – who was then 15 years old – was on the Mexican side of the U.S.-Mexico border when he was shot and killed by a U.S. Border Patrol agent, Jesus Mesa. The Hernandez family filed a lawsuit against Mesa in federal court in Texas, arguing that Mesa had used excessive force against Sergio, which violated Sergio’s rights under the Fourth and Fifth Amendments to the U.S. Constitution. The dispute now before the Supreme Court centers on whether the family’s lawsuit can go forward. After an hour of oral argument this morning, the family seemed to face an uphill battle, with the justices closely divided.

The Hernandez family’s case hinges on a 1971 case named Bivens v. Six Unknown Named Agents, in which the Supreme Court allowed a lawsuit seeking money damages from federal officials for violating the Constitution to go forward. When the family’s case was at the Supreme Court for the first time in 2017, the justices sent it back to the lower court for another look in light of their decision that term in a case brought against federal officials by Middle Eastern men who were in the United States illegally and were detained after the September 11 attacks. In that case, Ziglar v. Abbasi, the court concluded that a Bivens remedy should not be extended to a “new context” when there are “special factors counseling hesitation” and when Congress has not affirmatively created such a remedy.

When the case went back to the 5th Circuit, the full court ruled that the Hernandez family cannot rely on Bivens to bring their claim against Mesa. Writing for the court, Judge Edith Jones concluded that allowing the family’s case to go forward would require the court to extend Bivens to a “new context” because it isn’t clear whether the Constitution applies to a foreign citizen on foreign soil. And in any event, she continued, there are special factors suggesting that the court should hesitate before extending Bivens.

The Hernandez family returned to the Supreme Court, and the justices agreed to weigh in again. Arguing on behalf of the Hernandez family, lawyer Stephen Vladeck observed that everyone agrees that the family would be able to sue Mesa if Sergio had been standing on the U.S. side of the border. The fortuity of where the victim is standing, Vladeck told the justices, should not matter – particularly when the family does not have any other remedy available to it.

Stephen I. Vladeck for petitioners (Art Lien)

Vladeck faced a series of skeptical questions from the court’s more conservative justices. Chief Justice John Roberts, for example, was reluctant to create a new Bivens remedy that would apply to the family’s case. He reminded Vladeck that the court issued its decision in Bivens almost 50 years ago and suggested that there has been a “fairly dramatic change” since then in terms of “how we approach things as implying causes of action.” Moreover, Roberts added, it has been 40 years since the Supreme Court has recognized a new Bivens remedy. Can you “explain to us,” Roberts asked Vladeck, “why we should take your approach today?”

Like the government and the 5th Circuit, Roberts also expressed concern that allowing the family’s lawsuit to go forward would interfere with the relationship between the United States and Mexico. Roberts noted that there has been diplomatic correspondence between the two countries about this incident. If the courts step into this conflict and potentially start providing answers that conflict with what the U.S. government is saying, Roberts told Vladeck, “that is the type of thing that makes it a new context.” “I thought the country was supposed to speak with one voice,” Roberts concluded.

Justice Brett Kavanaugh observed that if Bivens were a law, there would be a presumption that it did not apply outside the United States and therefore wouldn’t apply here. “What,” Kavanaugh asked Vladeck, “is your answer to that?”

Vladeck countered that even if the presumption did apply to Bivens, the family’s case would still be different because Mesa was on U.S. soil when he shot Hernandez.

Justice Neil Gorsuch worried aloud about how far Vladeck’s rule would go. Would it mean, he asked, that any foreign national who is injured overseas by an action in the United States would be able to file a lawsuit? “I can think of a lot of cases that that’s going to encompass,” Gorsuch posited – “not just cross-border shootings” but all kinds of injuries.

Arguing for Mesa, lawyer Randolph Ortega stressed that the Hernandez family was asking the Supreme Court to create a cause of action where none has existed since the beginning of our country’s history. But both Ortega and Jeffrey Wall, the deputy U.S. solicitor general who argued on behalf of the United States, faced a barrage of questions from the court’s more liberal justices.

Although Roberts was troubled by the possible foreign-affairs implications of a ruling for the family, Justice Elena Kagan pressed Wall to explain the government’s concerns – especially, she noted, when the government of Mexico would prefer that the family be able to rely on Bivens. That led to a heated exchange between Kagan and Wall, in which Wall asked Kagan, somewhat incredulously, whether she really thought that “the next time we go in to talk to Mexico and take a position on something at the border, they won’t say, how is your representation credible? You told us last time that your officer didn’t do anything wrong. And your own courts, potentially even your own Supreme Court, told you you were wrong. I think it does directly undermine the credibility of the executive branch in working with a foreign government.”

Kagan shot back, “Why wouldn’t the United States then say, you know, we live in a country in which courts play an important role in determining whether conduct is lawful. And that’s not an embarrassment to the United States or the executive branch.”

Other questions focused on the difficulty of distinguishing between the Hernandez case and other scenarios in which a Bivens remedy would be available. Under questioning from Justice Stephen Breyer, Ortega agreed that a Mexican national who was shot by a Border Patrol agent on the U.S. side of the border would be able to sue under Bivens, as would an American who was shot on the Mexican side of the border. Why, Breyer asked, should it be a problem for a Mexican national who was shot on the Mexican side of the border to be able to sue, particularly when the Mexican government supports his lawsuit?

Kavanaugh chimed in, asking Ortega why there wouldn’t also be foreign-policy consequences if a Mexican national were killed on the U.S. side of the border. “Those kinds of incidents,” Kavanaugh said, “create lots of international and foreign policy implications as well” – but a Bivens remedy would be available to the victim.

Kavanaugh also asked Ortega whether it should matter that, if a Bivens remedy is not available, the Hernandez family will not have any other avenue for relief.

Ortega responded, as Wall did later, that it should not. The Hernandez case is “heartbreaking,” Wall said, but any concerns about a remedy in these kinds of cases should come from Congress. Although a majority of the justices seemed inclined to agree, the answer could hinge on Kavanaugh’s vote.

A decision is expected by summer.

This post was originally published at Howe on the Court.

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A “view” from the courtroom: A few more words

Another month, another blockbuster argument in the Supreme Court. Last month it was whether Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and transgender status. Today, it is the Trump administration’s efforts to rescind the Deferred Action for Childhood Arrivals program, known as DACA.

We may yet have a similar blockbuster for each of the remaining five sittings of the court this term.

Senator Durbin and Janet Napolitano in courtroom for DACA argument (Art Lien)

In the front row of the public gallery, Sen. Richard Durbin of Illinois, the Democratic whip in the Senate, has taken a seat minutes after appearing on CNN to call President Donald Trump’s efforts to rescind DACA “cruel.”

Behind Durbin sit five of the six DACA recipients who are named plaintiffs in the McAleenan v. Vidal case out of New York City, one of several consolidated cases before the justices today. Some of their lawyers in the bar section tell me that respondents Martin Jonathan Batalla Vidal, Antonio Alarcon, Eliana Fernandez, Carlos Vargas and Carolina Fung Feng are in that row.

One row behind them is Janet Napolitano, who was secretary of the Department of Homeland Security under President Barack Obama and who signed the memorandum that put DACA into effect. Now she is president of the University of California system, which is a plaintiff in one of the challenges to the Trump administration’s action to end DACA and the lead respondent here.

On the other side of the aisle, both figuratively and literally, is Ken Cuccinelli, the Republican former attorney general of Virginia and the acting director of U.S. Citizenship and Immigration Services, which is part of DHS. He is sitting in the middle section of the public gallery, while Durbin and Napolitano are in the section on the south side.

There are surely more so-called Dreamers here, including some who spent a long time waiting in the public line. And for the first time, there is a DACA recipient sitting at the counsel table.

As CNN Supreme Court reporter Ariane de Vogue noted over the weekend, Luis Cortes, a 31-year-old graduate of the University of Idaho College of Law who came with his parents to the United States from Mexico when he was one year old, is joining Theodore Olson at the table. Cortes became something of an expert in immigration law after his father was deported to Mexico, and he was in law school when DACA came into effect and allowed him the ability to get work as a lawyer.

When U.S. Solicitor General Noel Francisco arrives in the courtroom, he greets the opposing counsel, as is customary, including Olson, Cortes and Michael Mongan, the solicitor general of California, who will split the argument time with Olson on the respondents’ side.

As 10 o’clock nears, Joanna Breyer, the wife of Justice Stephen Breyer, and Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, take their reserved seats in the VIP section.

Meanwhile, Josh Blackman of South Texas College of Law, a frequent commentator on the court, arrives just after the justices take the bench but while bar admissions are ongoing. He showed up at the court at about 3 a.m. but was initially relegated to the lawyers’ lounge, where bar members may listen to live audio of the arguments. He is upgraded to the last row of the bar section just before the arguments begin.

Amy Howe has this blog’s main report of the argument in Department of Homeland Security v. Regents of the University of California, which was alternately focused on the administrative-law wrinkles in the case and more sweeping sentiments about immigration law and policy.

Breyer engages Francisco at one point about “reliance interests,” not just for the estimated 700,000 recipients of DACA but also for countless groups and organizations that have filed amicus briefs on their side — although “countless” is not quite the word because Breyer and/or his law clerks have counted them.

“I counted briefs in this court, as I’m sure you have, which state different kinds of reliance interests” Breyer tells the solicitor general. “There are 66 healthcare organizations. There are three labor unions. There are 210 educational associations. There are six military organizations. There are three home builders, five states plus those involved, 108, I think, municipalities and cities, 129 religious organizations, and 145 businesses.”

Francisco patiently waits for a chance to dive in to answer a trademark lengthy Breyer question, interrupting the justice by muttering “Right” and “Uh-huh.” Finally he gets to answer, responding that then-Secretary of Homeland Security Kirstjen Nielsen, the author of one of the two key decision memos at issue, “explicitly considered the reliance interests, including all of the things that you just listed that were set forth in excruciating detail in the numerous district court decisions that have ruled against us.”

Francisco has a harder time interjecting an answer during a lengthy question — some might call it a speech — by Justice Sonia Sotomayor.

“I’ve always had some difficulty in understanding what’s wrong with an agency saying, we’re going to prioritize our removals, and for those people, like the DACA people who haven’t committed crimes, who are lawfully employed, who are paying taxes, who pose no threat to our security, and there’s a whole list of prerequisites, we’re not going to exercise our limited resources to try to get rid of those people,” she says. “I know you’re going to argue contrary to what I just said.”

Francisco is chomping at the bit to do so. “So I guess I have three responses, your Honor.”

But Sotomayor is not finished. “All right,” she says. “But let me just finish my question.”

She continues to talk about the Trump administration memos and reliance interests, concluding, “I think my colleagues have rightly pointed there’s a whole lot of reliance interests that weren’t looked at, including the … current president telling DACA-eligible people that they were safe under him and that he would find a way to keep them here. And so he hasn’t and, instead, he’s done this. And that, I think, has something to be considered before you rescind a policy.”

“Putting all of that aside, I’m going to get to my question,” Sotomayor adds, to laughter.

Chief Justice John Roberts interjects: “And maybe we’d have an opportunity to hear the three answers.” Sotomayor wraps up by asking where “is all of this really considered and weighed?”

Francisco says, “So, your Honor, four answers now. I think I’ve added one.”

He starts with a reference to Obama, and just as Sotomayor has declined to mention Trump by name, Francisco does the same with Trump’s predecessor.

“I think that the prior president didn’t, couldn’t, and hasn’t made any kind of promise that DACA would remain in effect in perpetuity because it would have been impossible to make that promise,” Francisco says. “In fact, every one of my friends on the other side, I think, has agreed that we could rescind DACA at any time if, at least in their view, we did provide a little bit more detailed of an explanation.”

“[A]ll that they seem to be saying is we have to write a few more words,” he says.

Arguing for the challengers, Olson and Mongan faced their own difficulties, including questions about whether the action is reviewable at all, a raft of thorny administrative law questions and suggestions from some justices that the Nielsen memorandum may have offered valid rationales for winding down DACA.

“What good would another five years of litigation over the adequacy of that explanation [in the Nielsen memorandum] serve?” asks Justice Neil Gorsuch.

Olson pivots toward a recent decision written by the member of the court who may hold the cards in this case, the chief justice.

“What they could have said is that we understand all of these people, working for all these people, we understand what people are going through, provide a reason[ed], rational explanation, to use the words of this court just a few months ago in the Census case, to explain those things, to explain why a policy is being changed and make a contemporaneous decision.”

After 80 minutes of argument, and more than a few words, the case is submitted.

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Argument analysis: Justices torn, hard to read in challenge to decision to end DACA

It has been more than two years since the Trump administration announced that it would end the Deferred Action for Childhood Arrivals program, known as DACA, an Obama-era policy that allows undocumented young adults who came to the United States as children to apply for protection from deportation. Today the Supreme Court heard oral argument in a set of challenges to the Trump administration’s decision. After roughly 80 minutes of debate in a packed courtroom, before an audience that included politicians and dozens of DACA recipients, it wasn’t clear how the case is likely to turn out. Several justices appeared concerned that the Trump administration’s decision-making process had not adequately considered the effects of rescinding DACA, but on the other hand they weren’t necessarily convinced that sending the case back for a do-over would actually make much of a difference.

The stakes in today’s oral argument were high. Since the policy was announced in 2012, over 700,000 people have obtained protection from deportation under DACA, which permits them to work legally in the United States and also gives them access to benefits like health insurance and driver’s licenses. The challengers in three cases argued together today – originally filed in California, the District of Columbia and New York –  contended that the Trump administration’s decision to end DACA violated the Administrative Procedure Act, which is the federal law governing administrative agencies, and the lower courts ordered the government to keep DACA in place.

But earlier this year the Supreme Court granted the government’s request to weigh in, and now the justices will have the final word. They began this morning by considering a threshold question: whether the government’s decision to end DACA is something that courts can review at all.

Arguing for the federal government, U.S. Solicitor General Noel Francisco urged the justices to stay out of the fray. The administration’s decision to end DACA is not subject to judicial review at all, he suggested, because it simply ended a prior administration’s choice not to enforce immigration policy. Such a choice falls squarely within the agency’s discretion and therefore cannot be second-guessed by the courts, Francisco stressed.

Justice Ruth Bader Ginsburg was skeptical, telling Francisco that there is a “strange element” to his argument. You argue that the decision to end DACA falls within an agency’s discretion, she suggested, but at the same time you are arguing that the government was required to end DACA because the program was illegal, which would not involve any discretion at all.

Justice Samuel Alito was more sympathetic to Francisco’s contention that the decision to rescind DACA is not one that courts can review. When Theodore Olson, who argued on behalf of DACA recipients and civil rights groups, told the justices that they should start with a “strong presumption” that a federal agency’s actions are reviewable, Alito asked Olson how to draw the line in challenges to an agency’s exercise of its discretion. If a law enforcement agency has guidelines for when it will exercise its discretion not to prosecute, Alito asked, is the decision to tighten those guidelines reviewable?

Justice Neil Gorsuch was also concerned about how to draw the line between agency decisions that are and are not reviewable. He acknowledged that he was hearing a “lot of facts” and “they speak to all of us,” but he pressed Olson for a limiting principle.

The second question before the justices was whether the Trump administration’s decision to end DACA violated the law. Here the case is in a somewhat unusual posture, because everyone agrees that the administration could end DACA if it wanted to. As a result, the focus is largely on the process by which the Trump administration reached its decision, rather than the substance of the decision itself. In particular, several justices pressed Francisco on whether, before deciding to end DACA, the government had sufficiently considered the extent to which DACA recipients and others had relied on the program, and they suggested that the court should send the case back for more consideration and a better explanation than the Department of Homeland Security has provided.

Francisco resisted, telling the justices that the decision to rescind DACA would only violate the APA if the government had entirely failed to consider an important aspect of the problem before it – which it had not.

Olson and Michael Mongan, California’s solicitor general, agreed that the case should be sent back. Olson emphasized that the Trump administration did not want to take responsibility for the decision to end DACA, instead wanting to blame it on Congress and the courts. Mongan echoed that idea, arguing that sending the case back would require the Trump administration to issue a new decision that took ownership of the choice to terminate DACA.

But some justices appeared unconvinced that sending the case back to the lower courts would be a good idea or even make a difference. Gorsuch observed that the government could address the interests that would be affected by the termination of DACA in 15 pages, rather than in a paragraph, but it would take six more years, during which DACA recipients would remain in limbo. And Justice Stephen Breyer admonished Mongan that courts should not “play ping-pong with the agency.”

In his rebuttal, Francisco tried to cut off any further discussion about a remand, telling the justices that the government “owns” the decision to end DACA. We’ll know by summer whether he succeeded.

This post was originally published at Howe on the Court.

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Tuesday round-up

This morning the Supreme Court begins the second week of the November session with two oral arguments. First up is Department of Homeland Security v. Regents of the University of California, a high-profile challenge to the Trump administration’s decision to terminate the DACA program, which allowed immigrants brought to this country illegally as children to apply for protection from deportation. Amy Howe previewed the case for this blog; her preview first appeared at Howe on the Court. Gabrielle Kanter and Jingyi Alice Yao preview the case at Cornell Law School’s Legal Information Institute. Subscript Law has a graphic explainer for the case.

At Reuters, Lawrence Hurley reports that “[t]he justices will hear the Trump administration’s appeals of three lower court rulings – in California, New York and the District of Columbia – that found that the president violated a U.S. law called the Administrative Procedure Act in seeking to kill DACA.” At Fox News, Shannon Bream and Bill Mears report that “with a ruling expected in the midst of a presidential election year, the case puts the high court at the center of one of the most politically charged issues since the start of President Trump’s term.” At CNN, Joan Biskupic reports that “[l]awyers trying to save [the DACA] program … are strategically directing their arguments to one man: Chief Justice John Roberts.” At Education Week, Mark Walsh focuses on the effect the DACA ruling may have on students, teachers and schools.

For The New York Times, Michael Shear, Julie Hirschfeld Davis and Adam Liptak report that the refusal of acting Homeland Security Secretary Elaine Duke “to cite [the administration’s] policy objections to [DACA] is now at the heart of what legal experts say is a major weakness in the government’s case defending the termination of the program.” Additional coverage of the DACA case comes from Jess Bravin, Brent Kendall and Michelle Hackman for The Wall Street Journal (subscription required); Tucker Higgins at CNBC; Pete Williams at NBC News; Robert Barnes for The Washington Post, (subscription required); Jonathan Blitzer at The New Yorker; Steven Mazie for The Economist, here and here, and on The Intelligence podcast here; Richard Wolf for USA Today, here and here; and Nina Totenberg at NPR, here, here, and here, where she reports that “[s]ometimes lost in all the legal discussion are the people whose lives will be affected by the Supreme Court’s decision in the DACA case.” For CNN, Catherine Shoichet talks to a group of Dreamers who have marched from New York City to Washington “to make sure Supreme Court justices and members of the public know how much this matters.”

At Balkinization, Andrew Pincus observes that “[i]n a time of intense polarization and suspicion of government institutions, the courts’ role in reviewing administrative agency decisions is more important than ever.” Garrett Epps at the Atlantic calls the decision-making behind the case an example of how “bad lawyering and contempt for the rule of law have resulted in Trump initiatives being derailed in the lower courts.” At Microsoft’s blog, Brad Smith writes that “this fight is not just about our employees[:] It’s also about the potential impact of DACA rescission on the hundreds of thousands of Dreamers, on businesses across the country, and on the innovation economy that is central to the nation’s prosperity.” Additional commentary comes from Greg Sargent in an op-ed for The Washington Post, the Post’s editorial board, Sen. Bob Menendez in an op-ed at NBC News, and David Leopold at Medium. The editorial board of The Wall Street Journal argues that “Daca recipients who in good faith identified themselves to the government should be protected, but this is for Congress and the President to negotiate—not for unelected judges to pre-empt.”

This morning’s second argument is in Hernandez v. Mesa, a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the shooting death of their son, who was on the Mexican side of the border. This blog’s preview came from Amy Howe, in a post that first appeared at Howe on the Court. Kayla Anderson and Angela Shin Wei Ting preview the case for Cornell. In an op-ed for USA Today, Anya Bidwell and Nick Sibilla maintain that “for most of this country’s history, individuals — Americans and foreigners alike — successfully sued federal officers who violated their rights,” and that disallowing the family’s claim “would let federal agents go rogue without any culpability for their misconduct.”

On Friday, the court added one case to its merits docket: U.S. Patent and Trademark Office v. Booking.com, which asks whether the addition of “.com” to a generic term creates a protectable trademark. Amy Howe covers the grant for this blog, in a post that first appeared at Howe on the Court. The justices also released the January argument calendar: Amy Howe’s coverage for this blog, which first appeared at Howe on the Court, is here.

Briefly:

  • At Bloomberg, Greg Stohr reports that Justice Brett Kavanaugh, who “has done his best to keep a low profile in the 13 months since one of the most polarizing Senate confirmation fights in U.S. history,” “will be back in the spotlight when he gives the featured dinner speech on Thursday at the annual Washington convention of the Federalist Society, the powerful conservative legal group that helped put him on the court.”
  • In an op-ed for the Los Angeles Times, Michael McGough weighs in on last week’s oral argument in Kansas v. Glover, the court will decide whether, for the purposes of an investigative stop under the Fourth Amendment, it is reasonable for a police office to suspect that the registered owner of a car is the driver, arguing that “[i]f the court rules for Kansas, police will be able to stop a car based on the status of the owner’s driver’s license — even though it may be the owner’s son or daughter (or neighbor) behind the wheel.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.]
  • At the Pacific Legal Foundation blog, Ethan Blevins urges the justices to grant a cert petition that asks the court “to grapple with the constitutionality of Seattle’s new-fangled campaign finance scheme, known as the ‘Democracy Voucher,’” which, he argues, “[forces property owners to underwrite other people’s campaign contributions.”
  • At Jost on Justice, Kenneth Jost writes that although the “Supreme Court has yet to issue any decisions this term, … the justices’ partisan tilt can be seen in several of the term’s early case-selecting decisions.”
  • At City Journal, Myron Magnet hails the court’s recent efforts to “get[] back to the Framers’ Constitution—as perfected by the Bill of Rights, the Reconstruction Amendments, and the Nineteenth Amendment—and see[] the luminous modernity of its guarantee of liberty and its expectation of self-reliance.”
  • At National Review, Carrie Severino argues that a call for Justices Samuel Alito and Brett Kavanaugh to recuse themselves from three pending employment-discrimination cases reflects “a glaring double standard.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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