Wednesday, March 28, 2018

Southern Methodist University law professor Elizabeth Thornburg has a new law review article about the role of judges on Twitter. Citing President Trump’s attack on the “so-called judge” who halted his travel ban, she questions whether judges should engage and inform the public on social media. She equates this with “promoting the interests of the courts as institutions.”

Thornburg begins by recognizing the risks of judges online. First, they’re limited by judicial ethics rules that prohibit certain kinds of political activity. Judges have to be very careful about the jokes they make, the posts they retweet, and the people they follow to avoid taking ideological stances. They definitely can’t comment on pending or impending cases. Partisan judges could alienate some of their constituents, leading to undermined faith in the judiciary or an “appearance of impropriety.”

Take Judge Don Willett’s Twitter account as an example. Before joining the US Court of Appeals for the Fifth Circuit, he was a popular (and at times colorful) tweeter. Judge Willett informed and communicated with thousands of people, amassing over 100,000 followers. At his November 2017 confirmation hearing, though, certain tweets were criticized for being anti-LGBT. These included, “I could support recognizing a constitutional right to marry bacon,” and the joke below.

Screen Shot 2018-03-28 at 3.58.29 PM

Second, the nature of Twitter may inhibit judges from effectively reaching their target audience. Thornburg compares major media platforms’ follower totals with the most successful judicial tweeters, finding that judges have much less online popularity. They just don’t get the “visible reaction” that President Trump’s tweets garner, even when they’re discussing the same topic.

Judges are also victimized by Twitter algorithms that prioritize “popular” tweets. These account for a tweet’s number of engagements, how recently it was published, and how often the reader interacts with its author. Do judges’ tweets tend to go viral? No — they’re usually about legal issues like mandatory minimums, rule of law, and judicial activism. While US Senators can collect millions of followers by commenting on hot-button issues, judges (for better or worse) are limited to drier material.

Not only are judges’ tweets less viewed, but they’re undermined by echo chambers. After all, Twitter users are able to choose who they follow. Data shows that they overwhelmingly engage with similar-minded people and are unlikely to seek out discordant information. This runs counter to some of the judicial tweeter’s main goals: to debunk falsehoods and talk with people on the ‘other side.’

Despite these risks, Thornburg ultimately argues that judicial tweeting “should be encouraged rather than shunned.”

  • Twitter is an excellent way for the courts to stay current. With one click, a judge can communicate “critical, time-sensitive information” or initiate a Q&A session (see #AskGAJudges).
  • The ABA Model Code of Judicial Conduct advises judges to stay connected with society. “A judge is in a unique position,” it says, “to contribute to the law, the legal system, and the administration of justice.” Online judges are much more accessible to their fellow community members.
  • This accessibility is helpful when they’re running for reelection, a practice that’s still required in 39 states. Judges can gain valuable name exposure, tweet about their stances on legal issues, and answer questions from potential voters.

To tweet or not to tweet: that is the question. And the question seems to be gaining relevance due to President Trump’s frequent tweeting, where he occasionally talks about the judiciary, and the fact that 36% of American young adults are on Twitter.


Tuesday, March 27, 2018

The Court released its unanimous opinion for Hall v. Hall today. It held that one of multiples consolidated cases can be immediately repealed after disposal, regardless of whether the other cases are still pending.

I was excited to see that Chief Justice Roberts wrote the majority opinion. He’s known for his excellent writing, and Hall didn’t disappoint. These passages were especially insightful:

  1. “[Consolidation] can also mean joining together discrete units without causing them to lose their independent character. The United States, for example, is composed of “unite[d], as various particulars, into one mass or body,” “br[ought] together in close union,” or “combine[d].” Yet all agree that entry into our Union “by no means implies the loss of distinct and individual existence . . . by the States.”“She consolidated her books” hardly suggests that the “books” became “book.” The very metaphor Samuel offers—that consolidation “make[s] two one, like marriage”—highlights this point. However dear to each other, spouses would be surprised to hear that their union extends beyond the metaphysical.
  2. “Over 125 years, this Court, along with the courts of appeals and leading trea-tises, interpreted that term to mean the joining together— but not the complete merger—of constituent cases. Those authorities particularly emphasized that constituent cases remained independent when it came to judgments and appeals.”
  3. “We think, moreover, that if Rule 42(a) were meant to transform consolidation into something sharply contrary to what it had been, we would have heard about it. Congress, we have held, “does not alter the fundamental details” of an existing scheme with “vague terms” and “subtle device[s].” That is true in spades when it comes to the work of the Federal Rules Advisory Committees. Their laborious drafting process requires years of effort and many layers of careful review before a proposed Rule is presented to this Court for possible submission to Congress. No sensible draftsman, let alone a Federal Rules Advisory Committee, would take a term that had meant, for more than a century, that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do.” 

  4. “Constituent cases should end in separate decrees or judgments—the traditional trigger for the right to appeal, for which there would be no need if an appeal could arise only from the resolution of the consolidated cases as a whole. We explained that the parties to one case did not become parties to the other by virtue of consolidation—indicating that the right of each to pursue his individual case on appeal should not be compromised by the litigation conduct of the other. And, finally, we held that consolidation could not prejudice rights to which the parties would have been due had consolidation never occurred. Forcing an aggrieved party to wait for other cases to conclude would substantially impair his ability to appeal from a final decision fully resolving his own case—a “matter of right,” to which he was “entitled.”

Considering that Hall is about consolidated cases, it makes for surprisingly interesting and accessible subject matter. You can read the whole opinion here. SCOTUSblog contributor Howard M. Wasserman also wrote an opinion analysis. 

In the News: 

  • Former Justice John Paul Stevens wrote a New York Times op-ed calling for a repeal of the Second Amendment. He was in the minority of DC v. Heller, where the Court held that the 2A protects individuals’ rights to a firearm – even if they don’t serve in a “well regulated militia.”
  • Linda Brown, the plaintiff in landmark desegregation case Brown v. Board of Education, passed away yesterday at age 75.
  • Andrew McDonald was just rejected by Connecticut lawmakers as nominee for chief justice of the CT Supreme Court. He was criticized by Republicans for being an “activist judge” — they were mainly worried that he would vote against capital punishment. Governor Daniel Malloy claims that Republicans opposed McDonald because he’s gay, saying that “It’s an undeniable fact that Andrew McDonald has been treated differently than others that came before him… A person does not need to use homophobic slurs in order for their actions to be homophobic… I feel bad for my state.” Republicans vehemently deny this.

Sunday, March 25, 2018

Today’s Case: Engel v. Vitale (1962)

The Facts: A New York school district ordered its students to say the following prayer every morning: “Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” Soon after this was implemented, the parents of ten students challenged its constitutionality on the grounds that it violated the Establishment Clause.

The Establishment Clause says that the government can’t pass any law that establishes religion or “unduly favors one religion over another.” It has been used to both strike down and uphold laws dealing with religion. In 1989, for example, the Court held that a Christian nativity scene inside a Pennsylvania courthouse clearly promoted Christian orthodoxy. It also allowed public funding for private parochial school bussing in 1947.

The New York Court of Appeals upheld the school’s prayer as long as noncompliant students weren’t forced to participate. The Supreme Court then granted cert to determine whether nondenominational prayers in schools violate the Establishment Clause.

Decision: The Court ruled 6-1 against the school, holding that its prayer was “wholly inconsistent” with the Establishment Clause. From the opinion:

  • It’s not the government’s business to write official prayers for Americans to recite “as part of any religious program carried on by government.”
  • Early colonists sailed to America because they sought freedom from the Church of England’s established religious services. Unfortunately, their descendants established churches in America. Opponents such as James Madison and Thomas Jefferson opposed this practice, pressing for legislation to protect religious liberty.
    • “Our history shows that there was a widespread awareness among many Americans of the danger of a union of Church and State.”
  • The First Amendment ensures that the power of the federal government can never be used to “control, support, or influence” which prayers the American people say.
  • Respondents argued that the Regents’ prayer was nondenominational, and that students aren’t required to say it. But the Establishment Clause doesn’t require any showing of state compulsion. Minorities experience indirect pressures to conform with the prayer, even if they aren’t legally obligated to do so.
    • More importantly, The “first and most immediate purpose of the Establishment Clause” understands that the elevation of one religion automatically degrades other religions.
    • History shows that established religions “go hand in hand” with religious persecutions.
  • By ruling against this prayer, the Court was not necessarily hostile towards religion. The men who drafted the Bill of Rights and Constitution (many of them religiously inclined) knew that they were forbidding this kind of governmental activity.

Justice Stewart, dissenting, wrote that the official prayer didn’t interfere with students’ free exercise of religion. Neither did the prayer constitute an establishment of religion. “On the contrary,” he said, “I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.”

  • He thought the majority’s mentioning of the Church of England was meaningless. Engel dealt with a non-compulsory school prayer, not a governmentally established church. The history of American religious traditions is much more relevant.
    • As if to prove that point, Stewart listed several examples of American institutions that engaged in prayer: The Supreme Court, the Senate, the House of Representatives, and every President upon taking the Oath of Office. Even our national anthem contained the lines “Praise the Pow’r that hath made and preserved us a nation… And this be our motto, ‘In God is Our Trust.'”

Why it matters: Public schools can not endorse prayers, even if they’re non-compulsory.

Interview: Gabe Roth // Thursday, March 22, 2018

Gabe Roth is the Executive Director of Fix the Court, a nonpartisan organization advocating for greater transparency in the federal judiciary. You can learn more about Fix the Court through its website and Twitter page

What did you study at the Medill School of Journalism, and what was the most useful thing you learned?

I studied broadcast journalism. When I was still in college, I worked for both the TV station and the newspaper at WashU. I think I had more interesting experiences at the TV station, and that’s why I chose broadcast.

I actually took a class while at Medill on the Supreme Court. The class was focused on trying to figure out how to make issues in federal court cases, primarily the Supreme Court, interesting to a broader audience. That entailed us going back and interviewing attorneys and parties in those cases. And it was hard to make interesting anecdotes from sometimes dry issues. But it taught me really great lessons: first of all about how the courts work, and second, despite the fact that most of the cases may seem dry, that all of them impact real people.

How did you go from broadcast journalism to the Coalition for Court Transparency? 

My first job was as a television news producer at a local NBC affiliate in Jacksonville, Florida. It was a challenging job because there was very little depth with what I was able to do, and I just kept having to move onto the next story. That wasn’t something that I loved.

Then I moved to DC and started working in political consulting. I had 3 or 4 jobs working for grassroots organizations and bipartisan coalitions on issues including the environment, immigration, and habeas relief for Guantanamo prisoners. But I was always interested in the courts and justice, and the Coalition for Court Transparency was something I started when I was doing political consulting. I noticed that there was this issue where you have a case at the Supreme Court, and all the plaintiffs aren’t able to experience it firsthand. They live in California or Maine or Wyoming. It would be a lot easier if they could just turn on C-Span 4 and watch what was going on in oral argument. Over time, it grew into this larger issue of how the Supreme Court is not just opaque in its broadcast policies, but in all sorts of ethics, recusals, and stock ownership practices as well.

You left off on a great place for me to jump into Fix the Court’s policies. I’m wondering why you propose 18 years for the number of years that Justices should serve. Why not 15 or 20?

The easiest answer to that is “math.” If you have nine justices, then you want to put a new one on the court every two years. Nine times two is eighteen, so it takes 18 years to cycle through that cohort of Justices. If there were eight Justices, then sixteen years would probably make the most sense. Recently, the Justices have served have served an average of 26 years. Historically, it was closer to fifteen or seventeen. I think eighteen’s a good number –long enough that they can have an impact on the law, but not so long to make the system seem like feudalism or create concerns about cognitive decline.

The Constitution says that judges should serve in “good behavior.” If a Justice has served eighteen years and retains his or her cognitive faculties after that time, wouldn’t it be wrong to cut off their term?

I interpret the good behavior clause as being about the office of federal judge, not necessarily the office of Supreme Court justice. So they’re more than welcome to, as David Souter and Sandra Day O’Connor have, ride circuit.  Having those individuals continuing to impact the law and continuing to mentor younger generations, either by sitting on federal courts of appeals or by writing and speaking, is really valuable. We should encourage that sort of behavior. You’re going to be on the court for a certain amount time, but afterwards, if you’re up for it, you have a responsibility to continue that pedagogy.

I read your op-ed for The Hill on this topic, which was really interesting. For people who haven’t read it, could you explain what the 9th Circuit is doing to identify and mitigate cognitive decline in judges?

Sure. They established a committee almost twenty years ago called a Judicial Wellness Committee. It encourages individuals on the court, both judges and people elsewhere throughout the circuit, to really take a hard look at health. If you’re a clerk, and you’re worried that your judge might be slipping — that he or she is forgetting their keys on a Tuesday and forgetting what the Fourth Amendment says on a Thursday, then there’s a hotline you can call and say, “look, I have some questions.” 

They also host neurological seminars, and they have a buddy system as well. Judges are supposed to check in with one another and ask, “How are you doing? How’s your physical health, your mental health?” There are other resources that are brought to bear in the Ninth Circuit — a lot of online literature that the are judges are encouraged to study on what the signs of aging may be. If they have a concern, they’re supposed to reach out to the chief judge or one of the administrators to see what can be done about it. And that’s a program that I think every circuit should have.  I’ve been going from circuit to circuit, asking them, “Is this something you’re considering?” Most if not all of them are implementing or considering this type of plan, which I think is important just because we know that judges are serving longer than ever.

Most of these reforms are focused on federal judges. But later in the article, you mentioned that you sent a FOIA request to the Department of Justice about military judges. Have you received a response yet?

I have not. [laughs]

How long do FOIA requests usually take?

Oh god. I saw something on Twitter yesterday, where this guy got a response to a FOIA he wrote in 2013. Just now.

So, I actually filed a FOIA request to the US Marshal service about when the Marshals cover the Justices’ travel. If you’re a Justice of the Supreme Court, you’re allowed to have the US Marshal service protect you as you travel domestically (outside of Washington DC). And it’s an opt-in program, so the Justices don’t always travel with Marshals. Which, I don’t know — I understand it from some perspective. You don’t necessarily want a cop tailing you when you’re visiting your grandkids on the one hand. On the other hand, we know there are present threats to the Justices. So I think, just the idea that the Justices aren’t taking advantage of that protection is a conversation senators from the Judiciary Committee certainly want to have. We, as Americans, also want to be sure that our top officials in all branches of government officials are as safe as possible.

I filed that FOIA request in May of 2016, and I just got a response a week and a half ago. These things take a while. By statute they’re supposed to be disposed of pretty quickly, but that’s unfortunately not always the case. 

Once you receive the documents, how do you find the relevant information? It seems like finding a needle in a haystack when you’re sifting through hundreds, if not thousands of pages.

You sort of get a rhythm. A lot of the pages are either all blacked out, or they’re just useless news clippings that appeared in somebody’s email at some point. It’s time-consuming, and you have to turn it over and turn it over again. The Marshals gave me 380 pages. That wasn’t so hard. It just took most of a Saturday to go through what was there. But again, for my purposes, I’m not trying to play gotcha in any sense. There‘s just certain parts of the public record and the public discourse that I think should be amplified. 

One of your big “fixes” is that the Justices should recuse themselves from conflict-inducing stock holdings. How can we determine which stocks meet that definition?

That’s actually a question that Congress has grappled with for years. For  a while, there was a minimum amount. If you owned a couple of shares in AT&T, you could still hear a case. And then it it went to this point where if you have any shares of AT&T, you are by statute not allowed to hear the case. Now, Supreme Court Justices have very little recourse or reprimand if they do hear that case. It’s almost like an honor system. Because if you’re a Justice, the only thing that can happen to you is impeachment. If you’re a lower court judge and you’re accused of misconduct, you could be censured. You can have cases removed. You can be required to undergo sensitivity training. There’s a whole process by which you could slowly be pushed out and slowly get articles of impeachment by a judicial counsel process. But if you’re a Justice, it’s like, “You have to trust us.”

And they’re required by law every year to write out in an annual financial disclosure report how much money they have in their individual stock holdings or their various financial holdings. So right now, if you have a dollar of stock in AT&T, you cannot hear an AT&T case. This raises the larger question of why the Justices are owning individual stocks. AT&T is a very large company, and there are cases about AT&T that reach the Court every year. The fact that three of the Justices, and I’m talking about Breyer, Alito, and Roberts, own these individual stocks while the rest of the court is invested in mutual funds or retirement accounts — it doesn’t really make sense.

And further, if there’s a case like Verizon v. US, a Verizon win may be good for AT&T shareholders as well because it’s the same industry. So when a Justice owns AT&T stock and then votes for Verizon in Verizon v. US, it’s perfectly fine under the statute, but it smells a little funny. Overall, I think it’s a question of why is there any individual stock investment at all when there’s so many other blended instruments in the financial system that are less likely to induce recusal down the line.

Not only are the Justices held to a lesser standard regarding recusals, but they don’t have to be as detailed in their financial disclosure forms as members of Congress, right?

No, they’re not as detailed as members of Congress or certain executive branch officials. In Congress, you have the Office of Government Ethics and a Senate Ethics Office. You don’t really have that same level of oversight in the judiciary. I’m told that there’s an attorney who works for the administrative office who sort of acts like an inspector general and checks different ethical forms that judges and justices fill out. That’s one guy among thousands of court employees, and there’s nothing statutorily that ensures that person is doing what they say they’re doing. So that’s an issue — that Justices make mistakes on their forms all the time. For example, Justice Breyer has CPAs fill out his form, whereas Sotomayor fills out her own form and often misses things. There’s just no standard practice across the court that would give me a better sense that they’re really above-board ethically on their financial holdings.

For a lot of Fix the Court’s solutions, such as more transparency concerning the Justices’ US Marshal protection, financial disclosure forms, public appearance dates, etc., the solution is for Congress to pass a law.  To what extent does Congress have that power?

The issue of separation of power comes up pretty often with Fix the Court. We have three main points.

1) All the fixes that Fix the Court has proposed could be accomplished by the Justices themselves. If Chief Justice Roberts wants cameras in the court and to retire after 18 years, sell his stocks, and follow a code of conduct, he could make himself and his colleagues do that. There’s no question.

2) Throughout the history of the United States, Congress was very heavily involved in legislating rules for the judges and for the justices. I think the tide really turned in 1937, when Franklin Roosevelt tried his court-packing plan. Since then, Congress has been pretty weary of imposing new rules on the Supreme Court. But that doesn’t mean that it’s unconstitutional for them to do so. Congress has passed laws requiring the justices to do certain things without any constitutional issues.

The third thing I’ll say is that there are proposals out there, in this current Congress, that would impact the Supreme Court. Louise Slaughter, who sadly just passed away, co-wrote and co-sponsored a bill that required the Justices to follow a similar code of conduct to what the rest of the judiciary follows. There’s also the Cameras in the Courtroom Act and Sunshine in the Courtroom Act, trying to get broadcast access to federal appellate courts and the Supreme Courts. None of these bills are probably going to go anywhere in this Congress. Unfortunately, my fixes are stuck in the same rut that a lot of other issues are.

Again, there are ways to pass laws that would impact the court in a positive way in terms of transparency and accountability, but I don’t think would overstep any bounds inherent in the separation of powers doctrine.

You said that Chief Justice Roberts could implement most or all of your fixes on his own. If you could sit down with him for ten minutes, one-on-one, what would you say?

I think the first thing would be for him, Alito, and Breyer to sell their individual stocks. There’s no reason that they own Time Warner and Cisco and IBM. There’s just no reason for that.

The second thing I would say is — in the past, the Justices have signed ethics pledges. Most recently, there was one written about 25 years ago, when it just so happened that a lot of the Justices had spouses or children who worked in the law. And that is also the case right now. I definitely think he should resign that pledge.

The third thing would be live audio. We know that the Supreme Court has the capability to stream live audio from its courtroom — it did a live audio stream for Justice Scalia’s bar memorial in November 2016. And Chief Justice Roberts‘s good friend Merrick Garland just started allowing live audio in the DC Circuit’s arguments. Those are really the three things that I would say.

Does the Court offer any concrete reasons for not releasing live audio?

The Court hasn’t done same-day audio since Obergefell in April 2015. The fact that they’re not even doing that is strange. In terms of why they don’t want to do live audio, it’s the old rigmarole. The Justices believe that live audio would cause them, their colleagues, or the attorneys presenting oral argument to grandstand — to act in a way that would be detrimental to the flow of the arguments. All of which is unfounded.

You’ve been to arguments, so you know there’s just not enough time for grandstanding. The Supreme Court bar is very professional. And they would get smacked down in two seconds anyway. That’s something that Maureen O’Connor, who’s Chief Justice on the Supreme Court of Ohio, always used to say. Like, “Yeah, we’ve got cameras. Some guy grandstanded, I put him in his place, and it never happened again.” That’s generally my attitude as well. If there’s some dingus who would try it, they’d get smacked down, and it would really hurt their cause. I don’t believe that any of the arguments against video or live audio are valid.

How often do you attend oral arguments?

I try to go about two times a year. Sometimes I’ll be down there for opinion announcements as well. But I’m not a member of the Supreme Court bar, so I have to stand in the peasant line with everyone else and get there at 5am. It’s worth it, but it’s definitely a commitment.

What is your proudest accomplishment at Fix the Court?

Getting live audio for Garza v. Hargan was pretty awesome. I was not expecting that. I was really hoping to get live audio for a different case, about FOIA. And then this AP reporter, Jessica Gresko, was like, “Hey — why don’t you just request the audio for Garza v. Hargan?” That was about an undocumented girl wanting an abortion who ended up in HHS custody. I just asked for live audio on that, and within a few hours got back the green light from the aforementioned Merrick Garland. So that was my proudest accomplishment.

Overall, I think, people who cover the court are thinking more about these issues now than ever before. For too long, there’s been this kid-gloves attitude towards the justices in terms of who they are, who they associate with, where they travel, and why they’re not following certain rules. But they’re public figures just as anyone else in the other branches are. If some of their activities or investments or associations raise questions, it’s important to ask those questions. That’s something that I’ve been doing and, I think more and more, the press who cover the Justices are doing. Hopefully I’ll be able to continue that for a long time.

There’s a quote — I’m not sure from where — that says, “‘Justice’ is the closest title we have to nobility in America.” It’s really cool that you’re challenging that, and recognizing that the Justices are human beings with flaws that we need to consider and address.

That’s something too that I want to add. The Supreme Court is definitely my favorite branch, and I have massive respect for the Justices and what they do. Fix the Court is this ongoing question of: “You’re doing so much better than the other two branches. Why won’t you let the American people know about it?” Or, “you’re doing so much better than the other branches. Why are you having these stupid, unforced errors and missed recusals and silly stock ownerships and shady travel?” They’re so close. They really are. I’m not asking them to grow a third arm and relocate to Cuba. It’s just that these little unforced errors and areas of opacity make no sense in this day and age, when any amount of transparency that they add to this institution would show it in such a positive light. Especially compared to the other two branches.

Are there any books you’d recommend about the Court’s lack of transparency?

I would say Chapter Nine of Erwin Chemerinsky’s “The Case Against the Supreme Court” is really good. There’s also a book called “Electing Justice” by Richard Davis. It talks about the Supreme Court confirmation hearings and the farce they have become, which I think is interesting. I also liked “Closed Chambers” by Edward Lazarus, which is about the inside baseball of the Court.

Which law blogs do you read most frequently?

Every day, I start out with SCOTUSblog. I also read How Appealing. Those are really my two go-tos. The other blogs I read are generally things that I get through my Twitter feed. If there’s a Volokh Conspiracy link, I’ll read that. If there’s a Rick Hasen election blog link, I’ll read that. LawFare and Take Care have also been really good, what with the new administration and all the constitutional questions raised there.

Tuesday, March 20, 2018

You’ve probably read Prof. Doug Berman’s wonderful Sentencing Law and Policy blog, where he ‘curates’ the most intriguing and important sentencing developments. This seems like a cool exercise for High School SCOTUS. Rather than focusing narrowly on high school cases, though, I’ll paint with a broader brush and cover some general Supreme Court stories.

“Chief Justice Roberts Is Reshaping The First Amendment”

On the current Court, Justice Kennedy is best known for his First Amendment jurisprudence. But this FiveThirtyEight article argues that Chief Justice Roberts has also had an extremely meaningful impact on the 1A. Here are excerpts:

The court today is hearing arguments on whether the state of California is trampling on the free speech rights of crisis pregnancy centers — nonprofit organizations that do not perform abortions and encourage women to seek alternatives to the procedure — by requiring them to post notices explaining patients’ ability to access abortion and other medical services…

Whichever way the rulings come down this spring and summer, it’s almost certain that the winning side will include Chief Justice John Roberts, who has spent his 12-plus years at the helm of the high court quietly carving out a space as a prolific and decisive arbiter of free speech law.
The chief justice gets to decide who writes the majority opinion in any case where he’s on the winning side, which means that Roberts is able to stake a claim over a particular area of law if he so chooses. And that seems to be what’s happening with free speech: As of the end of the 2016 term, Roberts had written 34 percent of the free speech decisions the court has handed down since he joined its ranks, and 14 percent of his majority opinions were devoted to the topic.1 Even when he’s not writing for the majority, Roberts is rarely on the losing side: Out of the 38 free speech cases we counted,2 he voted with the minority only once.
The First Amendment appears to be a topic of deep personal interest for Roberts, and he’s not commanding the majority opinion in these cases simply to reinforce earlier decisions. Roberts has presided over — and participated in — a deliberate and systematic expansion of free speech rights in the realm of campaign finance and commercial speech.
… According to legal experts, these rulings represent a clear and unprecedented reversal of previous Supreme Court interpretations of the First Amendment, particularly with regard to corporations.

If you’re in the market for more FiveThirtyEight pieces on Roberts, check out this November 2017 piece titled, “Is Chief Justice Roberts a Secret Liberal?”

“Supreme Court Justices Cast Doubt on California Abortion-Disclosure Rules”

The Nine heard oral argument in National Institute of Family and Life Advocates v. Becerra. The question: whether it violates the 1A for pro-life “crisis pregnancy centers” to be lawfully required to provide abortion information. Excerpts from this Bloomberg News article:

Hearing arguments Tuesday in Washington, justices from across the court’s ideological spectrum suggested the law might violate the speech rights of clinics that oppose abortion and promote childbirth as an alternative. Justice Elena Kagan said the law might have been “gerrymandered” so that it targeted those facilities.

But a majority of the justices suggested the measure went too far. Even Justice Sonia Sotomayor, one of the court’s most liberal members, called one potential application of the law “burdensome and wrong.”

Under the measure, which took effect in 2016, licensed pregnancy centers must tell patients they can call a county health department to learn about state-funded prenatal, family planning and abortion services.

Justice Anthony Kennedy, often the court’s swing vote, asked whether the rules governing unlicensed clinics would apply to an advertisement that merely said “choose life.” If so, “it seems to me that that means that this is an undue burden in that instance and that should suffice to invalidate the statute,” Kennedy said.

“Supreme Court Grants Stay of Execution” 

This Associated Press article describes the Court’s recent stay of execution (and its second in total) for Russell Bucklew, who suffers from a severe medical condition. Snippets:

Russell Bucklew was scheduled to die by injection Tuesday evening for killing a former girlfriend’s new boyfriend during a violent rampage in 1996.

In a statement, the Supreme Court said it granted the stay in the execution. But the court says that four justices — John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch — would have allowed the execution to go ahead.

Bucklew, 49, was within an hour of execution in May 2014 when the U.S. Supreme Court halted it over concerns about Bucklew’s rare medical condition, cavernous hemangioma. The ailment causes weakened and malformed blood vessels, tumors in his head and throat and on his lip, and vein problems.


Thanks for bearing with me. Check back over the next few days for an exclusive High School SCOTUS interview!


Monday, March 19, 2018

I’ve spent much of the afternoon agonizing over pre-calculus, studying for a chemistry test, and refining my research essay on The Catcher in the Rye. For my own entertainment, I’ll pour my remaining energy into High School SCOTUS.

Today’s Case: United States v. Lopez (1995)

The Facts: After carrying a concealed revolver into his school, 12th grader Alfonso Lopez was charged under Texas’ Gun-Free Zones Act of 1990. He moved to dismiss the indictment, saying that Congress lacked the power to “legislate control over public schools.” The trial court disagreed. It ruled that the statute was “a Constitutional exercise of Congress’s well-defined power to regulate activities in and affecting commerce, and the business of elementary, middle, and high schools… affects interstate commerce.” Lopez’s case won in the Fifth Circuit Court of Appeals before finally reaching 1 First Street. The Justices agreed to hear whether the Congress Clause allowed Congress to regulate guns in schools.

Decision: Along 5-4 ideological lines, the Court held that the Gun-Free Zone Act exceeded the Commerce Clause’s authority.

  • “The possession of a gun in a local school zone is in no sense an economic activity… that might have such a substantial effect on interstate commerce.”
  • Neither does the handgun-possession have anything to do with the term “interstate.” No evidence suggested that the weapon had concrete ties to state commerce.
  • References Jones v. Laughlin Steel: The Commerce Clause should not be extended so that it includes nearly everything. This would “effectively obliterate the distinction between what is national and what is local and create a completely centralized government.”
  • The Court has upheld laws regulating intrastate commerce because they would substantially affect interstate commerce (ex: coal mining). But the Gun-Free Zones Act doesn’t have anything to do with commerce. It’s a criminal statute!

Breyer, dissenting, applied three “basic” principles of the Commerce Clause.

  1. Congress can regulate local commerce if it substantially affects interstate commerce.
  2. Courts shouldn’t consider the effect of an individual act, but the cumulative effect of all similar acts.
  3. Courts must determine whether Congress has a “rational basis” for regulating instances of interstate commerce.

Breyer answered ‘yes’ to the third question. If gun crime leads to decreasing quality of education, this could significantly affect interstate commerce. For example, American companies prefer to settle down where there’s an educated workforce. Breyer believed that this was the only justification needed to support the law.

In the news:

  • On April 17, the Court will hear argument in another Commerce Clause case: South Dakota v. Wayfair Inc. You can read a brief summary here from SCOTUSblog.
  • If you read this blog, then you’ve probably heard about Pennsylvania gerrymandering situation. The PA Supreme Court struck down Republicans’ mangled congressional map in January for violating the state constitution. Lawmakers are now asking SCOTUS to overturn the ruling. Their last application was denied immediately, but this most recent appeal took 20 days. At long, long last, the Court denied PA again. Robert Barnes of WaPo explains it here.

Saturday, March 17, 2018

The past few days have been overwhelming. Thank you for all the kind messages and encouragements on Twitter. I’m thrilled that my interview with New York Times SCOTUS correspondent Adam Liptak reached such a wide audience, and I look forward to interviewing more legal luminaries.

Let’s get back in the high school groove with Lemon v. Kurtzman (1971).

The Facts: In 1968, Pennsylvania passed the Non-Public Elementary and Secondary Education Act. This law allowed the state’s top education official to reimburse private school teachers for “teachers’ salaries, textbooks, and instructional materials… in specific secular subjects.” No money could be provided for explicitly religious lessons or activities. Alton Lemon, a Pennsylvania teacher, claimed that the state’s funding of parochial schools entangled the interests of religious people and the general population. It also gave preference to religious interests. This allegedly violated the Establishment Clause of the First Amendment, which stipulates a separation between church and state.

The other statute in question, Rhode Island’s 1969 Salary Supplement Act, begs the same question as Mr. Lemon’s:  Is it unconstitutional to provide state funding to non-public schools?

Decision: The Court invalidated both statutes; the Pennsylvania one unanimously, and the Rhode Island one by an 8-1 vote.

What is the Lemon Test? Burger wrote that a statute must pass a three-pronged test to assess whether it violates the Establishment Clause.

  1. It must have a secular legislative purpose.
  2. Its principle or primary effect must be one that neither advances nor inhibits religion.
  3. The statute can’t foster excessive entanglement between government and religion.

The Pennsylvania and Rhode Island statutes satisfied the first part of the test. After all, the legislation’s intent was probably not to advance religion, and it stated that the money would be used to enhance the quality of secular education. The states were also legitimately concerned about maintaining minimum school standards.

However, the statutes failed to pass all three prongs of the test. The Court thought that it was too burdensome for states to decide what qualifies as “secular and religious educational functions.” The cumulative impact of this relationship, wrote Burger, is “excessive entanglement between government and religion.” He noted two more important points, namely that a) state funding for churches would certainly lead to an “intimate and continuing relationship,” and b) there are political implications for the state funding of private schools.

In concurrence, Justice William Douglas warned that religious schools were inseparably tied to their religious mission. Any state funding of these schools, he wrote, would foster unconstitutional entanglement.

Dissenting in part, Justice Byron White pushed back on the overbroad Lemon Test. He wrote that restricting public funds would negatively affect secular education. He also alleged that the majority lacked evidence for saying that religious elements would pervade secular lessons, and that government oversight would constitute entanglement.

You can read the full opinion here.

You can also listen to the oral argument through Oyez. It’s fascinating to see how oral arguments have changed over time — advocates used to talk for much longer times without interruption. (First Mondays brought this to my attention last week.)