Tuesday, May 29, 2018

I don’t usually look to Politico for Supreme Court coverage, and I definitely don’t read it for baseball stories. Yet the two fields happily intersected this morning with Andrew Glass’s recent piece, titled “Supreme Court exempts baseball from antitrust law, May 29, 1922.”

The main purpose of the Sherman Antitrust Act was to prevent monopolies. The government used it to dissolve gargantuan trusts such as Standard Oil and the Great Northern railroad merger, which were dominating their respective industries, and recommend investigations into trusts. Companies violated the law if they interfered with interstate commerce.

In January 1915, the Federal League of Professional Base Ball Players was floundering. Ticket sales were declining, star players left for other leagues, and team owners were just really darn frustrated. The Federal Club of Baltimore, Maryland opted to sue the rivaling American and National Leagues for violating the Sherman Antitrust Act, claiming that these leagues were monopolizing professional baseball by buying out top Federal players.

Kennesaw Mountain Landis (Wikimedia) 

The Federal lawyers cleverly filed the case before Judge Kennesaw Mountain Landis, since he was known as an enthusiastic trustbuster. They failed to consider that Landis was a rabid Chicago Cubs fan. He loved baseball dearly, and he hated to see it attacked in any form. Any blow to the sport, wrote the future MLB commissioner, “would be regarded by this court as a blow to a national institution.”

The poor, miserable Federal League collapsed later in 1915. Its lawyers battled through the court system until reaching the Supreme Court seven years later.

Writing for a unanimous court, Justice Oliver Wendell Holmes Jr. struck a decisive blow against the Federal League. The Court held that the Sherman Antitrust Act did not apply to Major League Baseball because professional teams weren’t engaging in interstate commerce. Although fans traveled across state lines to attend games, this was “a mere incident, not the essential thing.” In other words, professional baseball games didn’t implicate interstate commerce just because people traveled to watch them.

From Ryan Murtha’s Medium piece on the subject:

If this ruling doesn’t seem to make sense to you, that’s okay. It hasn’t made sense to generations of legal scholars either. Some suggest that the court was worried losing the case would be the death knell for professional baseball in the wake of the Black Sox scandal. Others have pointed to Chief Justice William Howard Taft’s history as a ballplayer at Yale, and the fact that he was related to Chicago Cubs owner William Wrigley, as probable reasons for the decision.

It seems that even the court itself has realized it erred in this case. It has never allowed Baseball Club v. National League to be used as precedent in other arguments, even by other sport leagues making identical ones. So according to U.S. law, professional baseball is not interstate commerce, but professional basketball and football are. Though the ruling has been challenged in subsequent cases, the court has used the legal principle of stare decisis to defend it, basically admitting that the ruling was wrong, but that too much now rests on the faulty ruling for it to be overturned. But this series of challenges to baseball’s monopoly power throughout the second half of the twentieth century would slowly chip away at baseball’s iron grip on players’ rights.

Though the league lasted just two seasons, the Federal League had an important impact on the game. The rise of the outlaw league led to increased player leverage with the clubs, allowing them to negotiate higher wages. Additionally, the Federal League gave us Wrigley Field, which was originally constructed for the league’s Chicago franchise. Finally, though Hanlon lost his lawsuit, Federal Baseball Club v. National League was ultimately the first step towards ballplayers achieving true free agency over a half century later.

I wonder how many other Court decisions are considered “anomalies,” meaning that they’ve never been used as precedent. Korematsu is a famous example, but are there less high-profile ones?

-Anna Salvatore



Monday, May 28, 2018

Sorry for taking so long to post. I’ve been pretty busy over the past week. I’m crossing my fingers, though, that I can post a couple High School SCOTUS interviews in the near future. One is pending approval, and another is being edited.

Today I’m going to look at a case called Herrera v. Wyoming. In early January, the Supreme Court requested the Solicitor General’s views on the case. This is colloquially called a “CVSG,” or “calling for the views of the Solicitor General,” and it often happens when the United States is not a party to the case. However, the government may have federal interests or a preference about how to interpret a federal statute.

In this SCOTUSblog piece, Amy Howe lays out three common CVSG petitions.

  1. Solicitor General recommends a grant.
  2. “Soft” denials recommended.
  3. Solicitor General recommends denial.

The SG took the first option in Herrera, arguing that SCOTUS should hear the case in its upcoming term. Here are excerpts from the Associated Press story:

Clayvin Herrera is appealing his misdemeanor conviction for killing an elk in the forest in January 2014. He was sentenced to probation, ordered to pay $8,080 in fines and costs and lost his hunting and fishing privileges for three years.

Herrera’s defense argues the 1868 Fort Laramie Treaty granted tribal members the right to hunt on unoccupied lands that the Crow Tribe had ceded to the United States through the treaty, including large portions of Wyoming and Montana.

The Wyoming Supreme Court rejected his case, saying the issue was decided by the 10th U.S. Circuit Court of Appeals in 1995. The 10th Circuit ruling was, in part, based on an 1896 U.S. Supreme Court ruling that said tribal treaty rights “are irreconcilable with state sovereignty.” The appeals court also ruled that the area became “occupied” when it became a national forest.

The Idaho Supreme Court, the 9th U.S. Circuit Court of Appeals and the Montana Supreme Court all recognize tribal hunting rights on unoccupied lands, including national forests, Francisco wrote. A U.S. Supreme Court ruling could settle the issue and determine the definition of “unoccupied lands”, he said.

The Supreme Court is much more likely to hear a case after it’s been recommended by the Solicitor General. According to an empirical study by David Thompson and Melanie Watchtell, the Court granted cert to 34% of cases where it asked for the SG’s views. The normal percentage is far, far lower, as the Court only hears about eighty cases out of several thousand petitions. Calling for the SG’s views means that the Court is 37 times more likely to review the case.

Other fun facts from a Law.com article on this subject:

• The Court calls for the views of the SG in approximately 11 petitions each year, with the frequency of CVSGs increasing over the decade from 1994 to 2004.

• The Court follows the recommendation of the solicitor general 79.6 percent of the time, when that office recommends either a straight grant, deny, or grant/vacate/remand.

• The solicitor general takes, on average, about four and a half months to respond to the Court’s invitation. A disproportionate number of responses are filed in December and in May, likely to ensure that the cases are calendared by the end of the Term and for the following October sitting, respectively.

Thanks for reading, and enjoy the rest of your Memorial Day break.

-Anna Salvatore

Friday, May 18, 2018

Earlier this week, the Supreme Court decided McCoy v. Louisiana in a 6-3 decision. The Court held that, “The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” 

Robert McCoy was arrested and charged with three counts of first degree murder. He was accused of murdering his estranged wife’s mother, son, and stepson. Overwhelming evidence was presented against him at trial, but McCoy adamantly maintained his innocence throughout the proceedings.

Robert McCoy

McCoy’s defense attorney, Larry English, decided to concede that his client killed three people, but stipulate that they were not first degree murders. English sought to “save his client’s life,” as he was sure McCoy would be executed otherwise. However, McCoy sharply objected to English’s concession and continued to insist on his innocence. 

The jury rejected English’s attempt to lessen the sentence. It found McCoy guilty of all three counts of first degree murder and sentenced him to death. McCoy then sought a new trial, since he did not concede guilt and wanted to be tried in a case where his attorney did not either. The Louisiana Supreme Court rejected McCoy’s request for a new trial, holding that English’s decision was entirely legal.

This decision affirms the right of a criminal defendant to determine and direct the course of their defense. In other words, a criminal defendant can reject any argument presented to them or on behalf of them by their lawyer, and decide how to proceed in their case.

– Joe Hanlon


Wednesday, May 16, 2018

I just wrote this piece for my school newspaper about Murphy v. NCAA. Hope you get a kick out of it. 

In a huge win for New Jersey, the Supreme Court ruled by a 6-3 vote on May 14th that states are allowed to legalize sports betting. This struck down the Professional and Amateur Sports Protection Act, a 2011 law that prevented states from sponsoring, operating, or authorizing sports gambling, and fundamentally alters the gambling landscape.

New Jersey claimed that PASPA violated its right to regulate gambling within state borders. Its argument dated back to James Madison’s Federalist 45 essay, where he noted that the federal government’s powers are “few and defined.” It can collect taxes, enforce laws, charter banks, and even take private citizens’ property for public purposes. But, according to the anti-commandeering principle of the Constitution, it cannot force state governments to act against their will. So PASPA unconstitutionally forced New Jersey’s legislature to prohibit sports gambling.

“It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals,” wrote Justice Alito for the majority. “A more direct affront to state sovereignty is not easy to imagine.” He was joined by Chief Justice Roberts and Justices Kennedy, Thomas, Gorsuch, and Kagan.

Court watchers have seen this coming for months. Gambling advocates were particularly excited by oral argument on December 4th, where the justices questioned lawyers from New Jersey and the NCAA. Their questioning seemed to bode well for New Jersey. At one point, Justice Kennedy bluntly said that the 2011 law was commandeering. “The citizens of the state of New Jersey are bound to obey a law that the state doesn’t want,” he said, “but that the federal government compels the state to have.” Justice Kennedy is the Court’s powerful swing vote, so when you lose his vote, you’ve pretty much lost the case.

New Jersey will move quickly to legalize sports betting. “It’s my intention… to be up and running in two weeks,” said Dennis Drazin, operator of the Monmouth Park racetrack. Other states will follow suit, seeking enormous profits from gambling and the opportunity to shut down illegal wagers.

Yet some people aren’t thrilled with the May 14th decision. America’s professional sports leagues, for example, are strongly opposed to sports betting. When New Jersey tried to repeal the 2011 law, MLB, the NFL, the NBA, the NHL, and the NCAA joined forces to protect the integrity of sports.

One of their most powerful allies was Bill Bradley, a former senator and Princeton basketball star. “I think the court ignored the impact that the ruling will have on sports in America, and values you learn from sports,” he told the Washington Correspondent. “I mean, they’ve turned every basketball player, football player and baseball player into a roulette chip.” He added that Congress will never act to pass a federal law, and that sports leagues won’t receive percentages of betting revenue.

But the justices didn’t say that sports betting was a good idea, because that’s not their job. They simply made a judgement by interpreting the 10th Amendment. 

-Anna Salvatore


Monday, May 14, 2018

The Supreme Court released opinions today for the first time since April 24. This Empirical SCOTUS chart shows the Court’s historically slow pace in terms of deciding cases.

Copy of Adam Feldman


But the drought is over! The justices decided five cases this morning, including a 7-2 opinion in Murphy v. NCAA that allowed states to legalize sports betting. You can access all five opinions through these hyperlinks.

  1. Murphy v. National Collegiate Athletic Association
  2. Dahda v. United States
  3. McCoy v. Louisiana
  4. Byrd v. United States
  5. United States v. Sanchez-Gomez 

Later in the week, I’ll probably write about Byrd v. US.


-Anna Salvatore

Saturday, May 12, 2018

The Evolution of Justice Kennedy

By Joe Hanlon

The Decider, the Swing Vote, the Sphinx of Sacramento. Justice Anthony Kennedy has been dubbed these epithets for his unpinnable ideology and unpredictable style of voting. Often the tie-breaking vote in contentious 5-4 decisions, Justice Kennedy is one of the most powerful people in the world. His own view of the matter is more measured. “The cases swing, I don’t,” he said in an interview with Harvard Law School Dean Martha Minow. With a commitment to equal protection of all individuals under the Constitution, and the steadfast conviction that every human is deserving of dignity, Justice Kennedy has carved a substantial place for himself within American jurisprudence. But how did “the decider” come to be?


Nominated by President Reagan to the Supreme Court in 1988, Justice Kennedy was thought to be a surefire conservative. However, as we see in many Justices once they get onto the Court, his voting style isn’t easily labelled as “liberal” or “conservative.” He decides each case by its individual merits and interprets the Constitution as faithfully as he can. Early on, Justice Kennedy usually voted with the conservative bloc of the Court. As his tenure progressed, he began voting frequently with Justices O’Connor and Souter and co-authored the Court’s opinion in Planned Parenthood v. Casey. He grew steadily more unpredictable until the retirement of Justice O’Connor. After her departure and Chief Justice Rehnquist’s death, resulting in the confirmations of Chief Justice Roberts and Justice Alito, Justice Kennedy became The Swing Vote. He now votes most often with the Chief Justice and Justice Thomas.

Justice Kennedy maintains his independence by insulating himself from outside political pressures. When criticized by conservative members of Congress for being an “activist,” he responded by arguing that “an activist court is a court that makes a decision you don’t like.” This is a common sentiment among the members of the Court — that their decisions shouldn’t be attacked by politicians. And Justice Kennedy is one of the more criticized justices, since it’s easy to blame him for tipping the scale in controversial cases. 

So what does this mean in a time riddled with partisan deadlock? The Supreme Court, especially this current Court, is known for its collegiality. The Justices supposedly get along despite sharply disagreeing in their work. Regardless, with a narrow margin of Republican appointed justices to Democratic appointed justices, the significance of Justice Kennedy’s vote is hard to overstate. In the past decade, the most controversial and widely discussed cases have been 5-4 decisions. Almost always it is the Court’s four “liberals,” Justices Ginsburg, Breyer, Sotomayor, and Kagan, voting against the Court’s four “conservatives,” Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch. Then comes Justice Kennedy’s vote.

Countless landmark rulings have been decided by Justice Kennedy when the other eight Justices are split along ideological lines. In Roper v. Simmons, where the Court held that minors can’t be executed under the Eighth Amendment, Justice Kennedy was the deciding vote. In Citizens United v. FEC, where the majority held that the First Amendment extended to corporations funding political campaigns, Justice Kennedy was the deciding vote. In Obergefell v. Hodges, where the Court held that the Fourteenth Amendment gave same-sex couples the right to marry, Justice Kennedy was the deciding vote. There seems to be a trend here… Kennedy has become the true decider of many cases. This is good to see in a Justice, since it’s their duty to decide a case based on the circumstances presented. Other Justices have broken the mold and voted against their standard ideological position when they believe the law directs them to do so (think Chief Justice Roberts decision in NFIb v. Sebelius, where he voted with the Court’s “liberals” on several of the five decisions reached), but Justice Kennedy does it most often. 

Justice Kennedy undoubtedly holds great power. His inability to be labeled distinctly Democratic or Republican is refreshing in times like these, where it seems like every action or inaction has a partisan bent. Justice Kennedy does his job earnestly and honestly in each case, working until he is confident that the law and Constitution support his decision.


Thursday, May 10, 2018

An interesting research article called “The Role of Gender Norms in Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices” is circulating appellate Twitter right now.

After examining 601 party briefs and analyzing their emotional content, authors Shane Gleason, Jennifer Jones, and Jessica Rae McBean argue that female attorneys are rewarded for making emotionally compelling arguments, while male attorneys are rewarded for cool, unemotional rhetoric. Male justices are also far likelier to sanction lawyers for violating gender norms.

In more detail… 

Female lawyers are between a rock and a hard place. On the one hand, women are historically associated with feminine characteristics like gentleness, empathy, and agreeableness. They may face social backlash for failing to meet these standards. On the other hand, the Supreme Court is known for its argumentative ethos. A tension exists between gender norms and professional norms, then, where either choice can yield unenviable consequences.

Justice Sotomayor as a young lawyer.

Justice Sotomayor acknowledged this tension in 2013, saying that women need to argue “just like a guy” to be successful. She arguably followed similar advice in her own career. As an attorney, she was known for her brash argumentative style; colleagues called her “one tough bitch.” She was also criticized during her confirmation hearings for being too masculine. Yet Sotomayor’s ‘masculinity’ probably played a role in her success, as she ascended to one of the most prestigious positions in the US legal system.

Prior research has largely focused on how the presence of female attorneys affects judicial decision-making in appellate courts. Smzer (2010), for example, found that female attorneys are sometimes evaluated more harshly by conservative judges. But this study is unusual because it examines how attorneys perform gender norms through their written communications with justices.

According to the authors, written briefs are “a powerful, albeit subtle marker of one’s gender.” For example, women are shown to use significantly more pronouns than men. They also cite a 2013 study by Anthony Mulac called “The Gender-Linked Language Effect,” where participants were instructed to describe photographs “as if they were a man,” or “as if they were a woman.” Empirical analysis indicated that writings in the male guise differed noticeably from writings in the female guise. Therefore, gender stereotypes are widespread (even if unconscious) and may affect judges’ perception of briefs.

So the authors have established that gender norms appear in writing. But the real question is whether gender-distinguishing characteristics in briefs have an impact on the justices’ decision-making.

They ran 601 briefs through a word processor to measure the amount of emotional language (ex: “laugh,” “love,” “hate”). Briefs with more emotional language were characterized as more feminine, and comparatively emotionless briefs were characterized as masculine. The authors accounted for several control variables as well, such as percentage of women in the majority coalition and the percentage of the majority opinion author’s clerks who are female.

The results? Supreme Court counsel are rewarded for their compliance with gender norms, meaning that the content of their briefs is more fully incorporated into the majority opinion. Here are the concluding sentences:

For male justices, gendered expectations reveal subtle biases that influence their evaluation of “good” arguments. This is problematic because enforcing traditional gender norms perpetuates the relative authority of men’s voices compared with women’s. Our results thus raise questions about how counsel are evaluated based on immutable characteristics by the justices. Although much more can surely be written on this topic, we leave it to future scholars to explore more in depth in a host of judicial contexts and courts.

– by Anna Salvatore