Chief Justice Roberts emphasizes Supreme Court’s independence

Read more of this story here from SCOTUSblog by Andrew Hamm.

Chief Justice Roberts emphasizes Supreme Court’s independence

Speaking at the University of Minnesota Law School in Minneapolis on Tuesday afternoon, Chief Justice John Roberts took a few minutes to address the “contentious events in Washington of recent weeks.”

“I will not criticize the political branches,” Roberts began, choosing instead to “emphasize how the judicial branch is—how it must be—very different.” Unlike public officials, members of the judicial branch “do not speak for the people, but we speak for the Constitution.”

“Our role is very clear,” Roberts maintained: “We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them.”

To do this job, Roberts stressed, “obviously requires independence from the political branches.” As exemplars of cases requiring independence, he cited school-desegregation case Brown v. Board of Education, free-speech case West Virginia State Board of Education v. Barnette and Youngstown Sheet & Tube Company v. Sawyer, a case on the limits of presidential authority during war.

“The court has from time to time erred and erred greatly,” Roberts admitted, “but when it has, it has been because the court yielded to political pressure,” as in Korematsu v. United States, upholding the internment of Americans of Japanese descent during World War II.

In addition to judicial independence, Roberts stressed collegiality, “which he described as a “shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know at each step that we are in this together.”

A “concrete expression of that collegiality” is found “in a tradition that has prevailed for over a century.” Before taking the bench for oral argument or entering the conference room to discuss cases, the justices shake each other’s hands.

Roberts did not mention Justice Brett Kavanaugh by name, but Roberts did quote his newest colleague as saying that “we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.”

“I want to assure all of you,” Roberts said in closing, “that we will continue to do that to the best of our abilities whether times are calm or contentious.”

Following these remarks, Roberts spoke as planned with Professor Robert Stein, former dean of the law school. Among other topics, Roberts restated his opposition to television coverage of oral arguments, even as he acknowledged potential benefits. In response to one student following up on Roberts’ earlier statement about not speaking for the people, Roberts clarified that he meant that the court’s role is to support viewpoints not necessarily held by the majority.

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Ask the author: Our Constitution says we must take this risk

Read more of this story here from SCOTUSblog by Andrew Hamm.

Ask the author: Our Constitution says we must take this risk

The following is a series of questions prompted by the publication of Justin Driver’s “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind” (Pantheon Books, 2018). As Driver observes, “cultural anxieties that pervade the larger society often flash where law and education converge.” And indeed, decisions arising from schools – in which the Supreme Court has both spurred and forestalled social changes – have involved free speech, due process, criminal procedure, racial and sex equality, and religion.

* * *

Welcome, Justin, and thank you for taking the time to participate in this question-and-answer exchange for our readers.

Question: Before getting into specific cases and controversies, can you give an overview of the book?

Driver: The book examines the intersection of two distinctively American institutions: the public school and the Supreme Court. For a long season, many observers believed that these two institutions should have nothing to do with each other. But a panoramic view of this terrain now establishes that, without exploring the extensive interaction of the public school and the Supreme Court, it is impossible to grasp the full meaning of either quintessentially American institution. At its core, the book argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history. In the course of defending that claim, I challenge received wisdom on prominent cases and attempt to elevate relatively obscure cases into our constitutional canon. The book also highlights the many personal ordeals that students and their families have endured while defending constitutional rights. Although the book trains its focus principally on students’ constitutional rights, my examination of this particular field also aims to upend broader conceptions of the Supreme Court’s role in American society. Most broadly, I argue that when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be.

Question: You write of Justice John Marshall Harlan’s famous solo dissent in Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of Louisiana’s segregated railcars, that “the deeply flawed, repugnant reasoning contained in that opinion renders it the single most overrated opinion ever written by a Supreme Court justice and—not incidentally—the most misunderstood.”

During Justice Brett Kavanaugh’s confirmation hearing, Harlan’s dissent was praised as an example of judicial independence in the face of popular opinion. Can you clarify why it’s “overrated”?

Driver: Harlan’s Plessy dissent claims so many admirers in the modern era largely because people cite an isolated fragment from the opinion. Read in its entirety, though, it espouses unabashedly white supremacist and anti-Asian attitudes. In one breathtaking passage, Harlan wrote that, even if railcars were racially integrated, such a development would in no way jeopardize the superior status of whites. “The white race deems itself to be the dominant race in this country,” he contended. “And so it is, in prestige, in achievements, in education, in wealth, and in power.” Further, Harlan emphasized what he deemed the Louisiana statute’s fundamental absurdity: It excluded black passengers from white railcars when “a Chinaman can ride in the same passenger coach with white citizens,” even though members of “the Chinese race” are “so different from our own that we do not permit those belonging to it to become citizens of the United States.” Although Harlan famously wrote that “[i]n respect of civil rights, all citizens are equal before the law,” contemporaneous readers would have understood that “civil rights” had a limited meaning and was distinct from “social rights.” Whereas “civil rights” connoted the ability to enter valid contracts and similar concepts, “social rights” connoted interracial sex and all other forms of interracial interactions that might lead to such contact. Harlan dissented in Plessy because he viewed integrated railcars as involving civil rights, rather than social rights — not because of some prophetic commitment to racial equality. Harlan’s tepid commitment to challenging racism can be gleaned from his unanimous opinion for the Supreme Court in Cumming v. Richmond County Board of Education, a case that was decided only three years after Plessy. In Cumming, Harlan upheld a school board’s decision to close the area’s public high school for black students but keep open the high school for white students. These underappreciated aspects of Harlan’s legacy reveal he was hardly the avatar of modern racial attitudes that some colorblind constitutionalists claim him to be.

Question: At the confirmation hearing, senators on both sides seemed to agree with Kavanaugh’s praise of Brown v. Board of Education, which declared that racially segregated schools violated the 14th Amendment’s equal protection clause, as “the greatest moment in Supreme Court history.”

This drew my attention to your claim that “Brown receives near-universal veneration today in no small part because different readers ascribe radically different meanings to the decision.” Can you elaborate?

Driver: While every justice on the current Supreme Court doubtless pledges allegiance to Brown, they simultaneously turn to salute in competing directions. These divergent interpretations of Brown have repeatedly created controversy since its inception, most recently in the 2007 clash in Parents Involved in Community Schools v. Seattle School District No. 1. After Brown, questions lingered regarding what the opinion required of educators. Did it merely eliminate state laws that either mandated or permitted school segregation? Or did it also require states to take affirmative steps to guarantee school integration? What applicability, if any, did Brown have on education in the North — where laws requiring school segregation had at least officially been abandoned before Brown but schools nonetheless remained racially identifiable? Although many white southerners initially contended that the Supreme Court had erred in Brown, once it became apparent that the court would not reverse course, the decision’s opponents effectively aimed to minimize desegregation and convert the opinion into a principle requiring constitutional colorblindness. These strategies eventually attained considerable success not least because the court, after issuing Brown in 1954, abandoned efforts to develop a meaningful desegregation jurisprudence for roughly 15 years.

Question: You write that approbation of Brown’s unanimity “appears to rest on a severely exaggerated understanding of the Supreme Court’s ability to stifle opponents by speaking with one voice.” Can you explain? Isn’t unanimity better than division for the perceived legitimacy of the court?

Driver: Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly “never!” Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided.

Question: Your title (like mine) comes from the Supreme Court’s 1968 opinion in Tinker v. Des Moines Independent Community School District. There Justice Abe Fortas wrote, “It can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

You suggest that this phrase “not only became a staple of judicial opinions but even entered the larger national culture.” What’s the importance of this phrase, which comes from what you describe as “the Supreme Court’s most consequential student rights opinion in its entire history”?

Driver: If Tinker were memorable only for containing that sentence, the opinion would nevertheless rank high on the list of the Supreme Court’s momentous defenses of students’ constitutional rights. But Tinker also held great significance beyond that lone sentence. By linking the opinion to a broad notion of citizenship, Fortas emphasized that it would be particularly unwise for a society that values uninhibited public debate to permit schools to suppress views, as today’s students will soon assume responsibility for maintaining tomorrow’s civic discourse. Some of the most essential learning that occurs in schools happens not only during teacher-led classroom instruction, but during “personal intercommunication among the students,” interactions that Fortas affirmed as embodying “an inevitable … [and] an important part of the educational process.” Some observers have perceived Tinker’s outcome as foreordained. But from the viewpoint of the 1960s, it seemed quite plausible that the Supreme Court could have reached precisely the opposite outcome. Fortas himself viewed the matter as thorny: When Tinker initially arrived at the court, Fortas wrote, “this is a tough case” on a law clerk memorandum outlining the students’ petition for certiorari. Fortas eventually voted to deny the students’ petition, a stance that (if not overcome by his colleagues) would have permitted the school officials’ suppression of student speech to remain intact after their victory at the circuit-court level. Even at oral argument, Fortas’ comments to the students’ lawyer revealed at least some unease at the prospect of holding that the Des Moines educators’ actions violated the Constitution: “This gets the Supreme Court of the United States pretty deep in the trenches of ordinary day to day [school] discipline.” Nevertheless, Tinker represented a major innovation in the recognition of students’ constitutional rights, and its resonant language established the fundamental terms of debate when the Supreme Court weighed the meaning of various constitutional rights in the nation’s public schools.

Question: What was Justice Ruth Bader Ginsburg’s role in Safford Unified School District v. Redding, a 2009 case that, you write, “undeniably marked a crucial moment in this arena of student rights, as it represented the first—and to date the only—time that the Supreme Court has held that school officials violated the Fourth Amendment’s prohibition on unreasonable searches”?

Driver: During oral argument in Redding, in which the court considered the constitutionality of a strip search of an eighth-grade girl, some courtroom observers noted that Ginsburg appeared on the verge of exasperation with her colleagues — all males at the time — because their questioning seemed to betray a failure to grasp the search’s humiliating effect. Two weeks later, Ginsburg atypically made on-the-record statements to a reporter about the pending case. “They have never been a 13-year-old girl,” Ginsburg said of her fellow justices. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.” After the court issued an 8-1 decision invalidating the search, several commentators credited Ginsburg’s comments with helping to transform the case’s outcome. Immediately on the decision’s heels, when an interviewer asked Ginsburg whether the court’s deliberations in Redding benefited from having a woman present, she answered in the affirmative, largely reiterating her previous comments. “I think [the inclusion of a woman] makes people stop and think, Maybe a 13-year-old girl is different from a 13-year-old boy in terms of how humiliating it is to be seen undressed,” Ginsburg said.

Ginsburg’s repeated references to Savana Redding’s tender emotional state — which Ginsburg construed as a dual product of age and sex — doubtless exert a formidable grip on the instincts and perhaps even the emotions of many readers. On this view, 13-year-old boys — unlike their female counterparts — are simply not sensitive about their bodies, or much of anything else for that matter. But consider for a moment what work is done, precisely, by emphasizing that the strip search occurred when Redding was 13 — an age that, as Ginsburg correctly noted, often falls right around the onset of puberty. That age is surely a particularly awkward time for many adolescents, but does it materially alter the Fourth Amendment analysis in any way? Furthermore, Ginsburg’s position that strip searches are uniquely objectionable to female students also demands scrutiny. Very few male students, it seems safe to posit, would be indifferent to the experience of school officials requiring them to disrobe in a search for contraband. Boys, perhaps now more than ever, are hardly impervious to feeling inadequate about their physiques. When Ginsburg was a pioneering attorney in the legal fight against sex discrimination during the 1970s, she admirably conceived of herself as combating laws that locked men and women into stereotyped positions. It seems regrettable that Ginsburg’s public commentary on Redding has perpetuated hoary gender stereotypes — accentuating girls’ vulnerability and boys’ resilience — that should be unnecessary to condemn the outrageous strip search at issue in that case.

Question: Of Parents Involved in Community Schools v. Seattle School District No. 1, in which the Supreme Court invalidated school integration programs in Louisville and Seattle, you write that Justice Anthony Kennedy’s solo opinion “merits examination for its jurisprudential innovation and because—given that four justices agreed with his conclusion, and a different four justices agreed with a portion of his reasoning—lower courts have accepted it as articulating Parents Involved’s governing standard.”

What do you see happening in this area of law now that Kennedy has retired?

Driver: Kennedy carved out an unusual middle ground in Parents Involved. Along with the contingent led by Chief Justice John Roberts, Kennedy articulated a deep aversion to government programs that classify individual students according to race for student-placement purposes. Kennedy’s expression of this idea highlighted notions of what might be termed “racial libertarianism.” Kennedy parted company with the justices who voted to invalidate the programs, however, by creatively disentangling two concepts that had traditionally been lumped together, as he contended that opposing racial classifications did not necessarily entail embracing constitutional colorblindness. Indeed, Kennedy explicitly distanced his position from Harlan’s elevation of the colorblind model in Plessy. “[A]s an aspiration,” Kennedy wrote, “Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Along with the contingent led by Justice Stephen Breyer, moreover, Kennedy endorsed the notion that racial integration in schools constitutes a worthy, even a venerable goal. “This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children,” Kennedy argued. “A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue.” With his writing in Parents Involved as a major first step, Kennedy ultimately became the latest in a series of improbable saviors of affirmative action with his recent opinion in Fisher v. University of Texas at Austin (Fisher II). But it seems eminently probable that his successor will take a more hardline view of race-conscious admissions practices in higher education. Kavanaugh’s racial rhetoric as an attorney embraced colorblind constitutionalism and signaled unmistakable hostility to affirmative action.

Question: One of the court’s religion cases involving public schools was Santa Fe Independent School District v. Doe, which addressed the practice of student prayer before high school football games. In an amicus brief for two congressmen in support of the school district, Kavanaugh, then an attorney in private practice, wrote that schools could not be required to “actively prohibit” students from praying in school-provided platforms that allowed other, nonreligious messages. Ultimately, as you explain, the court disagreed, reasoning that “the high school’s elaborate involvement with the prayer transformed the pregame message into the government’s religious expression (which the Establishment Clause prohibits), rather than an individual student’s religious expression (which the Free Speech and Free Exercise Clause protect).”

How do you think Kavanaugh might approach cases involving religion and schools as a justice?

Driver: I fear that Kavanaugh’s elevation to the Supreme Court could raise the temperature in an area that has been relatively quiet over the last decade or so. Religion in public schools has been a perennial hot-button issue, but a variety of factors have recently combined to create a quiet détente in this area. First, the federal judiciary has clarified that students need not shed their religious identities at the schoolhouse gate — by both permitting public schools to observe a moment of silence at the beginning of classes and upholding student-led extracurricular clubs with a religious focus. Second, the meteoric rise of homeschooling — an option exercised largely by families for religious purposes — has eliminated a significant source of constitutional conflict. Many devout families who in prior generations would have sent their children to public schools now select homeschooling, and that transformation has succeeded in curtailing a host of potential claims contesting public schools’ curricula under the free exercise clause. Third, the Supreme Court validated the constitutionality of tuition vouchers for use at private schools, regardless of whether they are affiliated with a religious tradition. Fourth and perhaps most importantly, the Supreme Court has done an enviable job of helping to ensure that public schools are not the site of officially sanctioned religious proselytizing. Disconcertingly, Kavanaugh’s amicus brief in Santa Fe, which defended the school board’s position, suggests that the public school could once again become a hotly contested battleground over the proper place of religion in American society.

Question: In the October 2016 term, the Supreme Court granted but did not ultimately decide Gloucester County School Board v. G.G., the case of a transgender student who wanted to be able to use the school bathroom consistent with his gender identity. You write that “it seems improbable that … the institution will be able to avoid resolving [the student’s] central legal question for long.” “If the issue does soon return to the Court,” you continue, “it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.”

Could you elaborate on this last point about the statutory/regulatory and constitutional domains?

Driver: In assessing G.G.’s case, the U.S. Court of Appeals for the 4th Circuit initially rested its decision on the Obama administration’s interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination “on the basis of sex” for educational entities that receive money from the federal government. While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations. Following the Trump administration’s withdrawal of the prior administration’s interpretation, the Supreme Court remanded the case to the lower courts, in part because the institution prefers to avoid weighing in on legal questions that involve moving targets. Given the altered statutory landscape, the Constitution’s 14th Amendment could well be the next domain for this issue. Days after the Trump administration rescinded the prior guidance, a district court judge in Pennsylvania relied upon the equal protection clause to invalidate a rule that prohibited three transgender students from accessing restrooms congruent with their gender identities. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Judge Mark Hornak, satisfy transgender students’ rights under the 14th Amendment. “[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes,” Hornak explained. “The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities.”

Question: The above question aside, what do you see as the next major intersection between the Supreme Court and the schoolhouse gate?

Driver: No legal issue sits higher atop the long list of needed educational reforms than eliminating corporal punishment against students — the sole remaining group that governmental actors are permitted to strike with impunity. The Supreme Court should revisit its decision in Ingraham v. Wright and establish that the Eighth Amendment, properly understood, prohibits educators in public schools from inflicting corporal punishment on students. Whatever Ingraham’s constitutional legitimacy in 1977, the last four decades leave no doubt that wooden paddles have no business on the behinds of public school students. Although the overwhelming number of states permitted corporal punishment during the 1970s, that number has dwindled to fewer than 20 today, and even many jurisdictions within those states have jettisoned the practice. Little evidence suggests, however, that the remaining jurisdictions that have elected to retain this archaic custom will soon decide to cease striking students of their own volition. That public educators continue beating students today — well into the 21st century — is nothing less than an abomination. So, my greatest hope for this book is that it may play some small role in encouraging the Supreme Court to abandon Ingraham v. Wright.

Perhaps my greatest fear in this area, however, is that the Supreme Court may reverse its decision in Plyler v. Doe. That decision prohibited public schools from banning children of unauthorized immigrants and thereby protected access to education for a particularly vulnerable subset of American society. Roberts, when he was a young attorney working in the Reagan Justice Department, coauthored a memorandum suggesting that Plyler v. Doe was incorrectly decided. If he continues to hold that view, Roberts may lead his colleagues in an effort to permit jurisdictions to cast out undocumented citizens from the nation’s public schools. That decision would, I believe, have calamitous consequences for our constitutional order.

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SCOTUS for law students: Remembering recent confirmation hearings

Read more of this story here from SCOTUSblog by Stephen Wermiel.

SCOTUS for law students: Remembering recent confirmation hearings

Supreme Court confirmation hearings in the Senate Judiciary Committee are not usually a place one looks for legacies. Yet a number of hearings have left their mark on the Supreme Court nomination process. Add the confirmation of Justice Brett Kavanaugh to that list.

This column will consider examples from the confirmation of the late Justice Antonin Scalia, the unsuccessful nomination of the late Judge Robert Bork, and the hearings for Justices Clarence Thomas and Ruth Bader Ginsburg and Chief Justice John Roberts, as well as Kavanaugh’s more recent experience. Each of these confirmations has produced one or more memorable moments or characterizations that have become part of the legacy of nominations and the justices themselves.

For decades every nominee has wrestled with where to draw the line on their willingness to discuss cases decided in the past by the Supreme Court. The general pattern is that nominees will not discuss cases of recent vintage or that are still controversial. Most nominees have had no problem extolling the virtues of Marbury v. Madison, the 1803 decision written by Chief Justice John Marshall that forever elevated the role of the Supreme Court.

Not so Scalia. Nominated by President Ronald Reagan in 1986, he was selected to fill the seat of Justice William Rehnquist, who was simultaneously nominated to be chief justice to replace the retiring Warren Burger. Alone among nominees of the last several decades, Scalia famously said he could not answer questions even about Marbury v. Madison.

Marbury v. Madison is one of the pillars of the Constitution,” Scalia said. “To the extent that you think a nominee would be so foolish or so extreme as to kick over one of the pillars of the Constitution, I suppose you shouldn’t confirm him. But I don’t think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison.”

The following year, Reagan nominated Robert Bork, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed retiring Justice Lewis Powell. In one of the most memorable moments of his testimony, Bork was asked to describe the meaning of the Ninth Amendment to the Constitution, which suggests that the American people have other rights beyond those that are enumerated in the Bill of Rights.

But Bork suggested that it was impossible to know what the Ninth Amendment really meant. He then used an analogy that lasted well beyond the defeat of his nomination by the Senate. “I do not think you can use the Ninth Amendment unless you know something of what it means,” Bork said. “For example, if you had an amendment that says, ‘Congress shall make no,’ and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.” Bork’s likening the Ninth Amendment to “an inkblot” took on a life of its own, an indelible reminder of how not to give a sound bite.

In 1991, Clarence Thomas’ confirmation hearing also generated lasting controversy and resulted in a memorable sound bite. Nominated by President George H.W. Bush to succeed Justice Thurgood Marshall, Thomas faced the Senate Judiciary Committee a second time after his initial hearing concluded. The return engagement was prompted by accusations of sexual harassment leveled against Thomas by Anita Hill, who was questioned at length by senators after she gave an opening statement.

Thomas adamantly denied the allegations and then launched a blistering attack against the committee for allowing the charges against him to be aired in public and on national television. As part of his strong pushback against the senators, Thomas said, “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.”

The legacy of Ginsburg’s confirmation hearing in 1993 is based partly on what she said and partly on the way senators have characterized her testimony. Nominated by President Bill Clinton to succeed Justice Byron White, Ginsburg told the committee, as did others before her, that she would have to be careful not to discuss issues or cases that might come before her on the Supreme Court. In her opening statement to the committee, Ginsburg said, “[I]t would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.” She said a judge should “offer no forecasts, no hints,” and later in testimony repeated “no hints, no forecasts, no previews.”

Having said that in her opening statement, Ginsburg relied on that position often during her hearing, but she was also at times forthright in answering questions, including discussing Roe v. Wade, the 1973 abortion ruling, gender discrimination and other issues. Since 1993, however, senators have recast that hearing to make it seem that Ginsburg represented the height of recalcitrance. Most recently, during Kavanaugh’s hearing, Republican senators referred repeatedly to the “Ginsburg rule” to defend the nominee’s assertion that he had to avoid commenting on issues he might later have to decide as a justice. Generally, senators supporting a nominee seem to invoke the Ginsburg rule to defend the nominee’s refusal to answer many questions about current legal doctrine, while senators opposing a nominee decry the practice as giving the Senate too little information with which to evaluate a future justice.

The top prize for a legacy from a Supreme Court confirmation hearing may well belong to Chief Justice John Roberts, nominated by President George W. Bush to succeed Rehnquist as chief justice. In his 2005 hearing, Roberts famously compared a justice to a baseball umpire. Said Roberts, “Judges are like umpires. Umpires don’t make the rules, they apply them.” Perhaps no line from a Supreme Court confirmation hearing has been more widely quoted, both in subsequent hearings and in legal commentary. Roberts’ analogy has been widely criticized in some academic circles for describing too modest a role, both for umpires and for judges.

Kavanaugh’s recent confirmation, which included a hearing on allegations of sexual assault that paralleled the Thomas process, introduced at least two firsts for nominees: Kavanaugh’s television interview with Fox News and his op ed column for The Wall Street Journal, both defending himself against the allegations. Kavanaugh is also quite likely to be quoted well into the future for saying under oath before the Senate Judiciary Committee that the Senate’s “advise and consent” role had been transformed into a “search and destroy” function.

At a ceremony at the White House the night before his first oral arguments, Kavanaugh called the Senate confirmation process “contentious and emotional.” “That process is over,” he continued. “My focus now is to be the best justice I can be.” Although the process itself is over, its legacy – for current politics, for the court and for Kavanaugh – remains to be seen.

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Quiet day for orders

Read more of this story here from SCOTUSblog by Amy Howe.

Quiet day for orders

This morning the Supreme Court issued orders from the justices’ private conference last week – the first one in which the court’s newest justice, Brett Kavanaugh, participated. On Friday afternoon, the justices had announced that they had granted review in one new case, involving the application of the First Amendment to the private operator of a public-access television channel. The justices did not add any new cases to their docket with today’s order list, and they did not act on several of the higher-profile cases that they were slated to consider last Friday.

The justices denied review in a group of cases filed by inmates who were sentenced as “career offenders” under federal sentencing guidelines. They had argued that their sentences were unconstitutional, citing a 2015 case in which the court struck down a federal provision requiring a longer sentence for certain defendants who have been found guilty of violating the ban on gun possession by felons. The court concluded that the provision, which applied to defendants who had already been convicted of three violent felonies, was too vague to be constitutional, because it included any felony that “involves conduct that presents a serious potential risk of injury to another.” Last year the Supreme Court ruled that a similar provision in the U.S. Sentencing Guidelines was not unconstitutionally vague because the guidelines in effect when the defendant was sentenced were only advisory, not mandatory. The inmates whose petitions for review were denied today contended that, unlike the inmate in last year’s case, they should be resentenced because the guidelines were mandatory when they were sentenced.

The justices today declined to take up their challenges, over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg. Sotomayor emphasized that, no matter what her colleagues think about how broadly the court’s 2015 ruling should apply, “this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case,” Sotomayor concluded, “we ought to hear.”

The justices also denied review in ConAgra Grocery Products v. California and The Sherwin-Williams Co. v. California, arising from California’s efforts to hold three companies liable for their role in making, selling and promoting lead paint. In their briefs asking the justices to weigh in, the companies complained that they had been ordered to pay “hundreds of millions of dollars to remediate a decades-old problem” based on their speech – that is, their efforts to promote the use of lead paint in homes.

The justices did not act on either the challenge to the “peace cross,” a memorial to soldiers killed in World War I that stands on public land in the Washington, D.C., suburbs, or a case involving the constitutionality of mandatory bar dues for lawyers. The justices will meet again for a private conference on Friday, October 26, with orders from that conference likely either that afternoon or on Monday, October 29.

This post was originally published at Howe on the Court.

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Relist statistics OT 2017: The relist rest stop offers a golden ticket to some, becomes a holding pen and dead end to others

Read more of this story here from SCOTUSblog by Ralph Mayrell, Michael Kimberly and John Elwood.

Relist statistics OT 2017: The relist rest stop offers a golden ticket to some, becomes a holding pen and dead end to others

For four years running, we have pored over the prior term’s relists to give the readers of this blog a clearer idea of just what a relist means. When we began with this mind-numbing task after October Term 2014, a first relist meant that the ultimate odds of a grant were better than 50/50 — not bad when the average chance of a grant hovers around three percent. Being relisted continued to serve as a harbinger during the 2017 term, often signaling when the Supreme Court was interested enough in a petition to seriously consider granting it. But for all that relists still told court-watchers last term, the noise-to-signal ratio increased noticeably compared with previous terms. The increased noise appears to result from three related shifts in the court’s relist practice:

First, the number of relisted petitions increased to 159 in the 2017 term — up significantly from the 129 relisted petitions resolved in the 2016 term. (If you thought that nothing in the Supreme Court changes by 30 percent in a single year, you’d be wrong.) And that figure includes only those petitions that were disposed of during October Term 2017, omitting at least 26 petitions that were relisted during the 2017 term but remained pending as of the term’s end. So the justices appear to be a bit freer about relisting cases.

Second, once relisted, petitions were more likely than before to be relisted a second time. During OT 2015 and OT 2016, only 40 percent of first-time relists were relisted a second time (or more). In OT 2017, by contrast, 64 percent of relisted petitions were relisted at least twice. But most weren’t allowed to settle in and get comfortable: The court only relisted a third of the twice-relisted petitions for a third time, denying or summarily reversing 55 percent and granting 10 percent of the remaining twice-relisted petitions. That’s another big change from 2016, when 75 percent of twice-relisted petitions were relisted a third time, and from 2015, when 55 percent of twice-relisted petitions were relisted again. The few petitions surviving the two-relist purge, however, tended to make it to five or more relists in OT 2017 — which is a higher rate than in previous years but not dramatically so.

Third, the grant rate on relists was lower in OT 2017 than in previous years. A petition relisted once had a 32 percent chance of ultimately being granted in the 2017 term compared to a 43 percent chance in 2016 and a 49 percent chance in 2015. Interestingly, the inverse wasn’t true: While the chance of denial for relisted petitions climbed from 35 percent in 2015 to 45 percent in 2016, it fell slightly in 2017, to 42 percent. That’s due to an increase in the number of summary opinions. Indeed, if there is any good news here for relisted petitions, it is that for petitions that are relisted two, three or four times, the grant rate remained static from 2016 to 2017, but the rate of denial decreased as the court more often summarily reversed.

What does all of this mean? On the whole, the number of petitions relisted has increased, and the number of times that a petition is relisted twice has increased — so at any given time, there were many more relisted petitions on the docket in OT 2017 than in prior terms. At the same time, the overall number of cases granted has not increased commensurately. Sadly (for us more than anyone) that means that relists — while still effectively a prerequisite to a grant — have become a less reliable indicator that a case will ultimately be granted. So maybe the Relist Watch columns of yore got it about right in saying:

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

So why is the court relisting more petitions? One possibility is that it is relisting multiple cases that raise the same or related issues. For example, the court relisted at least four different cases — Allen, Gates, James and Robinson — each raising the identical question of whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision are unconstitutional. Those petitions were relisted repeatedly (some of them 10 times) before the court denied them all. Another example is Bormuth and Lund, cases on either side of a circuit split involving legislative prayer, and which the court either relisted or rescheduled 13 and 15 times respectively. (We are told by those who would know that rescheduling and relisting now serve similar purposes.)

In any event, now that the Supreme Court once again has a full complement of justices, we expect that there may be a brief flurry of grants from the ranks of the relists, at least once Justice Brett Kavanaugh has had a chance to settle in and review them. After that, it is possible the relist trends will continue to zigzag as another justice’s preferences affect relist practices. Relist Watch will keep monitoring, and we will report back next year.

Click graph to enlarge.

Thanks to Andrew Quinn for undertaking for a second year the daunting task of reading every Relist Watch to gather the data used in this article.

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Justices take on one new case

Read more of this story here from SCOTUSblog by Amy Howe.

Justices take on one new case

The justices met today for their private conference – their first with the Supreme Court’s newest member, Justice Brett Kavanaugh. They announced only one new grant from that conference this afternoon, in a relatively low-profile but potentially significant case.

In Manhattan Community Access Corp. v. Halleck, the justices agreed to review a ruling by the U.S. Court of Appeals for the 2nd Circuit that the private operator of a public-access television channel is a “state actor” – that is, someone who is acting on behalf of the government — who can therefore be sued for violations of the First Amendment. The lower court’s decision, a “friend of the court” brief supporting the television channel told the justices, not only “threatens the viability” of “public-access channel operators around the country,” but it also raises a broader question: whether private property can be a public forum, a place traditionally open for public speech and debate, where the protections of the First Amendment are the strongest. And that question, says the Chicago Access Corporation, a foundation that runs public-access TV channels in that city, has become an important one lately, “as courts are increasingly being asked to consider whether privately owned internet platforms like Twitter and Facebook can ever be public forums.”

The justices did not act on several high-profile cases that they were scheduled to consider at today’s conference, including two petitions arising from a challenge to a 93-year-old cross on public land in the Washington, D.C., suburbs and a challenge to mandatory bar dues for lawyers. We expect the court to issue another set of orders from today’s conference on Monday, October 15, at 9:30 a.m.

This post was originally published at Howe on the Court.

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Justices allow Tennessee execution to go forward, but inmate still gets temporary reprieve

Read more of this story here from SCOTUSblog by Amy Howe.

Justices allow Tennessee execution to go forward, but inmate still gets temporary reprieve

Tennessee had planned to execute Edmund Zagorski, who is on death row for the 1984 murders of John Dale Dotson and Jimmy Porter, tonight. The Supreme Court would have allowed the execution to go forward, but the state’s governor gave Zagorski a brief reprieve to provide the state with enough time to prepare the electric chair that Zagorski has requested for use in his execution.The justices vacated an order by the U.S. Court of Appeals for the 6th Circuit that had put Zagorski’s execution on hold. Zagorski had sought to reopen his case to benefit from a 2012 ruling by the Supreme Court involving claims that an inmate’s trial lawyer provided inadequate assistance. The 6th Circuit blocked Zagorski’s execution to allow him to appeal a federal trial court’s ruling against him, but tonight the Supreme Court overturned the 6th Circuit’s order. Justices Stephen Breyer and Sonia Sotomayor indicated that they would have left the 6th Circuit’s order in place.

Sotomayor (again joined by Breyer) had strong words dissenting from the court’s refusal to block Zagorski’s execution in another proceeding, this one challenging Tennessee’s lethal-injection protocol. The state had planned to execute Zagorski using three drugs, but Zagorski argued that the protocol will “cause severe pain, mental anguish and needless suffering” because the first drug in the protocol, midazolam, will not properly anesthetize him before the second and third drugs – which will paralyze him and then stop his heart – take effect.

In this case, Sotomayor explained, the trial court had ruled that Zagorski and other inmates had not shown that another drug, pentobarbital, which is “widely conceded to be able to render a person fully” unconscious, was available – even though the state had previously offered a single dose of pentobarbital as a “seemingly available” alternative method of execution. The Tennessee Supreme Court then rejected Zagorski’s request to stay his execution.

Sotomayor complained that the requirement, imposed by the Supreme Court’s cases on lethal injection, that “inmates offer alternative methods for their own executions” was “legally and morally wrong when it was promulgated, and it has been proved even crueler in light of the obstacles that have prevented capital prisoners from satisfying this precondition.”

“Capital prisoners,” Sotomayor stressed, “are not entitled to pleasant deaths under the Eighth Amendment, but they are entitled to humane deaths. The longer we stand silent amid growing evidence of inhumanity in execution methods like Tennessee’s, the longer we extend our own complicity in state-sponsored brutality.”

This post was originally published at Howe on the Court.

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Argument analysis: Are there limits to the government’s power to detain immigrants without a hearing?

Read more of this story here from SCOTUSblog by Jennifer Chacon.

Argument analysis: Are there limits to the government’s power to detain immigrants without a hearing?

On Wednesday, the Supreme Court heard oral argument in the case of Nielsen v. Preap, which involves a challenge to the government’s interpretation of one of the Immigration and Nationality Act’s detention provisions: 8 U.S.C. § 1226(c). The relevant portion of 8 U.S.C. § 1226(c)(1) states that the secretary of the Department of Homeland Security “shall take into custody any alien who— [is inadmissible or deportable on certain specified statutory grounds], when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Mony Preap and a similarly situated class of immigrants challenged the government’s application of this mandatory detention provision to individuals whom Immigration and Customs Enforcement does not detain at the time they are released from criminal custody.

Zachary D. Tripp, assistant to the U.S. solicitor general (Art Lien)

Zachary Tripp, representing the government, argued that the “key provision” at issue in the case is 8 U.S.C. S 1226(c)(2), which deals with the circumstances under which an individual otherwise subject to mandatory detention under Section (c)(1) may be released. His attempt to frame the interpretation of the statute in this way was greeted with immediate skepticism from Justice Sonia Sotomayor, who asked him what meaning the government gave to the “when released” language of Section (c)(1). “So you don’t see any sense of urgency in your acting, no sense of encouraging you … in some way to actually do what the statute says?” she pressed. She noted that, at the time the statute was enacted, Congress also enacted a two-year transitional rule that would allow for a ramping-up period leading to the mandatory detention regime now in place. “Why did you need that two-year period if, in your view, you have absolute discretion … to pick up an alien whenever you want anyway”? Tripp responded that the government “understand[s] this to be a continuing and urgent obligation to arrest them right now,” but did not concede that the statute’s authorization of detention is tied to fulfilling that obligation.

Sotomayor’s questions highlighted continuities between this case and Pereira v. Sessions last term. There, too, the statutory provision in question could be read to create congressionally required obligations on the government, imposed because of Congress’ frustration with the (then) Immigration and Naturalization Service’s inefficiencies in enforcing immigration law. In Pereira, the Supreme Court held that the government’s obligation was to serve a notice to appear that contained the date of appearance. In yesterday’s case, Preap argues that the congressionally mandated procedure is to apprehend individuals released from criminal custody immediately upon their release. In this case as in Pereira, the government’s argument attempts to reframe this obligation as a charge to do its best, while imposing on immigrants the full burden of the statutory scheme.

That approach did not succeed in Pereira, and the questioning from Justices Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer strongly suggested that they do not think those arguments should succeed here, either. Kagan at one point told counsel, “I look at the (c)(1) custody authority and it’s all about criminal custody and what happens when you’re released from criminal custody, and that makes me think that your interpretation of the words described in paragraph 1 is wrong.”

Breyer noted the parade of “horribles” that are already occurring under the government’s interpretation. Immigrants who have been deeply reintegrated into their communities for many years are suddenly being taken into detention and detained without a hearing for very long periods of . Breyer clearly signaled that an interpretation of the statute that allows for this raises serious constitutional questions.   He also pushed back on the government’s analogy to criminal cases that hold that a missed bail-hearing date requires the government to hold a bail hearing, not to release a detained immigrant immediately. In this case, Breyer pointed out, the government’s missed deadline results in the indefinite detention of immigrants without a hearing — it does not have the same legal effect as in the bail cases. In fact, Preap’s reading of the statute is the one that results in a hearing. Breyer noted that the government’s interpretation of the statute is not necessary to prevent “the baddies” from wreaking harm in the community or missing their court dates because individuals not detained “when released” under Section 1226(c)(1) can still be detained if that is found to be appropriate after a hearing under Section 1226(a).

Ginsburg wanted help from counsel for Preap, the ACLU’s Cecillia Wang, in understanding the anomalous idea that someone taken into immediate custody would be denied a hearing, but someone detained later would receive a hearing. Wang responded that Congress chose its words and drew bright-line rules in the detention statute. (It is clear from the Supreme Court’s decision in Demore v. Kim concerning the same provision that those rules can be constitutional even when they do not make much practical sense.)

Cecillia D. Wang for respondents (Art Lien)

Justice Samuel Alito’s questions indicated the same sympathy with the government’s claim as he manifested in his dissenting opinion in Pereira. As in that case, Alito suggested with his questions that Congress’ view in 1996 was that “[i]f you’re an alien, you come here, you commit one of these crimes, you’ve effectively forfeited whatever right you have to remain at large in the community.” His questions, along with his past decisions, made clear that Alito does not feel there is a constitutional liberty interest at stake that would raise concerns about the government’s interpretation of the statute. It is safe to conclude that the silent Justice Clarence Thomas shares this view of the case, based on Thomas’ past votes in cases raising similar issues.

Justice Brett Kavanaugh’s questioning also telegraphed clear support for the government’s position. He hypothesized that Congress knew that immediate detention would be impossible in many cases, “and yet Congress did not put a time limit,” which “raises a real question … whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” In characterizing Congress’s intent in passing the 1996 laws, he stated that “what was really going through Congress’s [mind] in 1996 was harshness on this topic.” In a colloquy with Kavanaugh, Wang attempted to show that the statute does indeed have a time frame imposed by Congress –detention immediately upon release – arguing that “‘when’ meant what ‘when’ means in the common sense.” But Kavanaugh did not appear convinced. Nor was he convinced that discretionary detention with a bond hearing was sufficient for the class of immigrants whose offenses are enumerated in Section (c)(1), because “Congress was concerned that those hearings were not working the way that Congress wanted.” Wang conceded that was true, but only for the class of individuals identified in (c)(1); she emphasized that Preap’s whole argument is that he falls outside of that category.

Although retired Justice Anthony Kennedy voted against the government in Pereira and might therefore have been expected to do the same here, his replacement by Kavanaugh may not determine the outcome in this case. Both Chief Justice John Roberts and Justice Neil Gorsuch also came down on the side of the immigrant in Pereira. It is not yet clear where those two justices stand on this case. But an entertaining exchange between Gorsuch and Wang about grammar (in which Wang won kudos from the justice) suggested that Gorsuch has at least some sympathy for Preap’s statutory construction argument, even if he is not yet completely convinced. And when Gorsuch pressed Tripp on whether there were “any limits on the government’s power” under the government’s reading of the statute, it was reminiscent of the concerns about government overreach that Gorsuch signaled last term in Sessions v. Dimaya, in which he also came down in favor of the immigrant.

Roberts searched for guidance from Wang about whether “when released” should be interpreted to mean “within a reasonable degree of immediacy” after release or within a “reasonable time,” to which Wang replied that it should be interpreted to mean a reasonable time, regardless of the nature of the government’s efforts. She pointed to precedent from the Board of Immigration Appeals indicating that 48 hours would be too long and advocated that the appropriate time frame would be within a day of release. Roberts’ questions suggest that he may believe that the mandatory detention provision is more limited in scope than the government’s argument suggests and that he is searching for the appropriate temporal limit to the mandatory detention requirement of Section (c)(1) in cases like Preap’s.

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Argument analysis: Are there limits to the government’s power to detain immigrants without a hearing?

Read more of this story here from SCOTUSblog by Jennifer Chacon.

Argument analysis: Are there limits to the government’s power to detain immigrants without a hearing?

On Wednesday, the Supreme Court heard oral argument in the case of Nielsen v. Preap, which involves a challenge to the government’s interpretation of one of the Immigration and Nationality Act’s detention provisions: 8 U.S.C. § 1226(c). The relevant portion of 8 U.S.C. § 1226(c)(1) states that the secretary of the Department of Homeland Security “shall take into custody any alien who— [is inadmissible or deportable on certain specified statutory grounds], when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Mony Preap and a similarly situated class of immigrants challenged the government’s application of this mandatory detention provision to individuals whom Immigration and Customs Enforcement does not detain at the time they are released from criminal custody.

Zachary D. Tripp, assistant to the U.S. solicitor general (Art Lien)

Zachary Tripp, representing the government, argued that the “key provision” at issue in the case is 8 U.S.C. S 1226(c)(2), which deals with the circumstances under which an individual otherwise subject to mandatory detention under Section (c)(1) may be released. His attempt to frame the interpretation of the statute in this way was greeted with immediate skepticism from Justice Sonia Sotomayor, who asked him what meaning the government gave to the “when released” language of Section (c)(1). “So you don’t see any sense of urgency in your acting, no sense of encouraging you … in some way to actually do what the statute says?” she pressed. She noted that, at the time the statute was enacted, Congress also enacted a two-year transitional rule that would allow for a ramping-up period leading to the mandatory detention regime now in place. “Why did you need that two-year period if, in your view, you have absolute discretion … to pick up an alien whenever you want anyway”? Tripp responded that the government “understand[s] this to be a continuing and urgent obligation to arrest them right now,” but did not concede that the statute’s authorization of detention is tied to fulfilling that obligation.

Sotomayor’s questions highlighted continuities between this case and Pereira v. Sessions last term. There, too, the statutory provision in question could be read to create congressionally required obligations on the government, imposed because of Congress’ frustration with the (then) Immigration and Naturalization Service’s inefficiencies in enforcing immigration law. In Pereira, the Supreme Court held that the government’s obligation was to serve a notice to appear that contained the date of appearance. In yesterday’s case, Preap argues that the congressionally mandated procedure is to apprehend individuals released from criminal custody immediately upon their release. In this case as in Pereira, the government’s argument attempts to reframe this obligation as a charge to do its best, while imposing on immigrants the full burden of the statutory scheme.

That approach did not succeed in Pereira, and the questioning from Justices Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer strongly suggested that they do not think those arguments should succeed here, either. Kagan at one point told counsel, “I look at the (c)(1) custody authority and it’s all about criminal custody and what happens when you’re released from criminal custody, and that makes me think that your interpretation of the words described in paragraph 1 is wrong.”

Breyer noted the parade of “horribles” that are already occurring under the government’s interpretation. Immigrants who have been deeply reintegrated into their communities for many years are suddenly being taken into detention and detained without a hearing for very long periods of time. Breyer clearly signaled that an interpretation of the statute that allows for this raises serious constitutional questions. He also pushed back on the government’s analogy to criminal cases that hold that a missed bail-hearing date requires the government to hold a bail hearing, not to release a detained immigrant immediately. In this case, Breyer pointed out, the government’s missed deadline results in the indefinite detention of immigrants without a hearing — it does not have the same legal effect as in the bail cases. In fact, Preap’s reading of the statute is the one that results in a hearing. Breyer noted that the government’s interpretation of the statute is not necessary to prevent “the baddies” from wreaking harm in the community or missing their court dates because individuals not detained “when released” under Section 1226(c)(1) can still be detained if that is found to be appropriate after a hearing under Section 1226(a).

Ginsburg wanted help from counsel for Preap, the ACLU’s Cecillia Wang, in understanding the anomalous idea that someone taken into immediate custody would be denied a hearing, but someone detained later would receive a hearing. Wang responded that Congress chose its words and drew bright-line rules in the detention statute. (It is clear from the Supreme Court’s decision in Demore v. Kim concerning the same provision that those rules can be constitutional even when they do not make much practical sense.)

Cecillia D. Wang for respondents (Art Lien)

Justice Samuel Alito’s questions indicated the same sympathy with the government’s claim as he manifested in his dissenting opinion in Pereira. As in that case, Alito suggested with his questions that Congress’ view in 1996 was that “[i]f you’re an alien, you come here, you commit one of these crimes, you’ve effectively forfeited whatever right you have to remain at large in the community.” His questions, along with his past decisions, made clear that Alito does not feel there is a constitutional liberty interest at stake that would raise concerns about the government’s interpretation of the statute. It is safe to conclude that the silent Justice Clarence Thomas shares this view of the case, based on Thomas’ past votes in cases raising similar issues.

Justice Brett Kavanaugh’s questioning also telegraphed clear support for the government’s position. He hypothesized that Congress knew that immediate detention would be impossible in many cases, “and yet Congress did not put a time limit,” which “raises a real question … whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” In characterizing Congress’s intent in passing the 1996 laws, he stated that “what was really going through Congress’s [mind] in 1996 was harshness on this topic.” In a colloquy with Kavanaugh, Wang attempted to show that the statute does indeed have a time frame imposed by Congress – detention immediately upon release – arguing that “‘when’ meant what ‘when’ means in the common sense.” But Kavanaugh did not appear convinced. Nor was he convinced that discretionary detention with a bond hearing was sufficient for the class of immigrants whose offenses are enumerated in Section (c)(1), because “Congress was concerned that those hearings were not working the way that Congress wanted.” Wang conceded that was true, but only for the class of individuals identified in (c)(1); she emphasized that Preap’s whole argument is that he falls outside of that category.

Although retired Justice Anthony Kennedy voted against the government in Pereira and might therefore have been expected to do the same here, his replacement by Kavanaugh may not determine the outcome in this case. Both Chief Justice John Roberts and Justice Neil Gorsuch also came down on the side of the immigrant in Pereira. It is not yet clear where those two justices stand on this case. But an entertaining exchange between Gorsuch and Wang about grammar (in which Wang won kudos from the justice) suggested that Gorsuch has at least some sympathy for Preap’s statutory construction argument, even if he is not yet completely convinced. And when Gorsuch pressed Tripp on whether there were “any limits on the government’s power” under the government’s reading of the statute, it was reminiscent of the concerns about government overreach that Gorsuch signaled last term in Sessions v. Dimaya, in which he also came down in favor of the immigrant.

Roberts searched for guidance from Wang about whether “when released” should be interpreted to mean “within a reasonable degree of immediacy” after release or within a “reasonable time,” to which Wang replied that it should be interpreted to mean a reasonable time, regardless of the nature of the government’s efforts. She pointed to precedent from the Board of Immigration Appeals indicating that 48 hours would be too long and advocated that the appropriate time frame would be within a day of release. Roberts’ questions suggest that he may believe that the mandatory detention provision is more limited in scope than the government’s argument suggests and that he is searching for the appropriate temporal limit to the mandatory detention requirement of Section (c)(1) in cases like Preap’s.

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Argument analysis: Justices search for clear path to assessing responsibility for asbestos-dependent equipment on ships at sea

Read more of this story here from SCOTUSblog by Ronald Mann.

Argument analysis: Justices search for clear path to assessing responsibility for asbestos-dependent equipment on ships at sea

Wednesday morning the justices got a rare opportunity to ponder basic principles of tort law, as they closed the October session with the argument in Air and Liquid Systems v. DeVries. The case involves equipment sold by various manufacturers (including petitioner Air and Liquid Systems) that was installed many years ago on Navy ships. The equipment depended on asbestos insulation, which was installed shortly after the equipment reached the ships, to regulate its temperature. There also were asbestos gaskets between the parts, which on some occasions came with the original equipment, but were frequently replaced during the use of the equipment. The plaintiffs are a group of sailors (including respondent John DeVries) injured by the asbestos used with the equipment. This particular dispute is limited to injuries that cannot be attributed to any asbestos that the manufacturers supplied; all the relevant asbestos was applied to the equipment by third parties after the Navy acquired it.

Because the injuries in question occurred at sea, the liability of the manufacturers cannot be determined under the law of any particular state. Rather, it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The case comes to the justices after the lower court found that the manufacturers could be liable because the injuries were foreseeable. Arguing on behalf of the manufacturers, Shay Dvoretsky contended that the justices should adopt a bright-line “bare-metal” rule, absolving the manufacturers from liability for any asbestos that they did not themselves make, sell or distribute.

Dvoretsky’s time was dominated by a group of justices pressing the idea that the manufacturers should be held responsible, at least if the sailors can prove that the manufacturers directed or required the use of asbestos with the equipment that they sold. Several justices seemed to think that the facts of the case made liability almost straightforward. For example, almost immediately after Dvoretsky began his presentation, Justice Ruth Bader Ginsburg interrupted him to ask whether it “make[s] a difference” that the manufacturers were “making a product that is useless unless the asbestos is added.”

In the same vein, Justice Sonia Sotomayor interjected her view that under “normal” principles of “tort law, if you create a car that has a spark in the tank, and the gasoline … explodes, the consumer is not going to sue the gasoline company. It’s going to sue you because you, the car manufacturer, produced a defective product that caused an injury that the gasoline would otherwise not cause. Why are you any different than the bare-metal car seller?”

Chief Justice John Roberts seemed to share Sotomayor’s perspective, saying: “Normally, you run a car with gasoline and it’s normally perfectly safe. Here, you normally run your product with asbestos and it’s not perfectly safe.”

Offering his own hypothetical, Justice Stephen Breyer commented that for him, the case is just “not that complicated.” Explaining with his usual expansiveness, he continued:

It’s the case in the Restatement. Judy loans her car for the evening to Grant, whom she knows is a very dangerous driver. The least-cost avoider, of course, is Grant. But, nonetheless, Judy is negligent. And the negligence that they’re claiming here is taking a thing, a physical thing which the manufacturer knows is dangerous and unreasonably putting it out into interstate commerce. And that’s why if you tell the user he’s got to use asbestos, knowing all the relevant things, that’s a negligent act.

Taking a somewhat different tack, Justices Elena Kagan and Neil Gorsuch spent a considerable portion of Dvoretsky’s time debating the problem as a matter of basic tort theory. Kagan started the discussion by interrupting Dvoretsky to ask: “When you say that even when this manufacturer is … direct[ing the buyers] to use asbestos, you are not liable, are you making a fairness argument? Are you making an efficiency argument? What kind of argument is that?” She offered Dvoretsky an “opportunity to tell me what sense would it make to say, even though you direct the use of asbestos, you can’t be liable for its harms.”

Dvoretsky repeatedly offered his position that a bright-line rule exempting the manufacturers was sensible, but Roberts seemed to share Kagan’s concerns, as he evinced skepticism about the breadth of the rule necessary for Dvoretsky to prevail:

What if you are the only one who knows about it? I mean, the asbestos manufacturer – their scientists haven’t discovered yet that it’s going to kill you, but you have, and … you still don’t have a duty to warn? … I know it’s not this case. But your position is even if you … are telling people to use asbestos with your product, [and] they don’t know that it’s harmful but you do, you have no duty to warn?

At that point, Gorsuch weighed in, explicitly aligning himself with the desire of “Justice Kagan [to address this] as a matter of doctrine and policy.” For Gorsuch, the key problem seemed to be the difficulty of defining any reason why we should be worried about obligating the manufacturers to warn their customers: “Besides the costs of having an additional warning, do you see any other downsides to expanding the scope of the duty to warn in this way?” He acknowledged that “[w]e normally do, you’re right, put the duty to warn with the lowest cost avoider.” But he added that “sometimes it’s expanded” and went on to agree with the sailors that “it has been expanded in this area,” which prompted him to “wonde[r] what are the negatives associated with that? Why is that bad?” Justice Brett Kavanaugh joined in on that point as well, asking at the very close of Dvoretsky’s presentation: “Why are too many warnings bad? … Explain that to me.”

The presentation of Thomas Goldstein on behalf of the sailors had quite a different texture, as the justices allowed him to talk without interruption for an extended period at the beginning of his presentation, which hinged on the contention that it was appropriate to hold the manufacturers responsible for the foreseeable consequences of the use of asbestos at their direction. As time went on, however, it became clear that several of the justices were concerned about defining the boundaries of a rule favoring the sailors. The discussion revolved around a series of hypotheticals, each of which involved the manufacturer of a product that foreseeably would be used in connection with another product that might be dangerous. The principal hypotheticals involved the manufacturers of ashtrays – presumptively not responsible for the harms to tobacco users; flashlights – presumptively not responsible for the harms from leaking batteries; and aircraft – presumptively not responsible for the harms from exploding engines.

Goldstein offered two principal responses. One was that the equipment here was necessarily integrated with the asbestos – it could not be used without it.  That seemed to work well as an answer for the ashtray hypothetical (at least in theory you could use an ashtray for something other than a tobacco receptacle). It did not go over nearly so well for the flashlight hypothetical – as it led Gorsuch to quip “I haven’t used a flashlight without a battery very often.”

Goldstein’s second answer was that the equipment itself contributed to the injury from the asbestos, something less likely to be true in the listed hypotheticals. Sotomayor was particularly receptive to this idea, as she had asked early on in the argument “[h]ow is [the asbestos] not the cause of the injury? The asbestos as sold is perfectly safe. It’s integrated. It’s whole. It doesn’t release molecules. What causes it to degrade is [the equipment, which] heats up to such an extreme degree that it degenerates the asbestos.” It was less clear, though, that the other justices accepted that response from Goldstein.

About the only thing that can be said to summarize is that the justices as a group seemed far from settled by the end of the morning.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case. The author of this post, however, is not affiliated with the firm.]

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