Tuesday, November 27, 2018

Two cert petitions to watch out for 

by Anna Salvatore

The justices looked they were going to address transgender rights last year when they agreed to hear Gloucester County School Board v. G.G. The case involved a transgender teenager, Gavin Grimm, who wanted to use the boy’s bathroom at his high school. The Fourth Circuit had ruled for Grimm, citing a 2015 directive from the Department of Education that said “a school must generally treat transgender students consistent with their gender identity.” But the Trump administration disavowed this guidance last February, and the justices found themselves in a predicament. Should they hear Grimm’s case, even though the Fourth Circuit hadn’t been privy to the new guidance? Or should they send the case back down to the Fourth Circuit for further review? They chose the latter option. Since then, the Court has heard zero cases on transgender rights.

The Alliance Defending Freedom hopes that will change soon. Devoted to protecting religious freedom by “funding cases, training attorneys, and successfully advocating… in court,” the Christian organization is asking the justices to hear Joel Doe v. Boyertown Area School District. The dispute arose a couple of years ago, when Boyertown began allowing transgender students to use bathrooms and locker rooms that corresponded with their gender identity. The school’s policy was unannounced; petitioner Joel Doe found out one day when he noticed a transgender male in the locker room. “Embarrassed and confused,” according to his cert petition, Doe approached school officials about his privacy interests. He didn’t feel that biological males should have to change in the presence of those assigned female at birth. Yet officials told him to act “natural,” and he was later marked down for repeatedly failing to change in the locker room.

Doe sued in the district court and lost. Then he appealed to the Third Circuit, which held that Boyertown’s policy satisfied strict scrutiny because it “served a compelling interest – preventing discrimination against transgender students – and was narrowly tailored to that interest.”

Judge Theodore McKee explained that transgender people endure intense social and physiological stress, which is why 40% have attempted suicide. It follows that Boyertown had a strong and legitimate interest in shielding its transgender students from discrimination.

In order to satisfy strict scrutiny, though, a policy must also be narrowly tailored to the compelling interest, and Doe disagreed that Boyertown’s policy was the narrowest way to avoid anti-trans discrimination. Instead, he suggested, the school could have allowed transgender students to use single-user restrooms. But Judge McKee wrote that this proposal would undermine the school’s goal of preventing discrimination, as it would “very publicly brand transgender students with a scarlet ‘T.'”

Perhaps most importantly, Doe argued that people should be categorized based on their sex assigned at birth – not the sex they identify with. So he thought that the Third Circuit had erred by holding that transgender females are “actually female” and transgender males are “actually male.” 

This dispute is at the heart of the case. If the Supreme Court agrees to hear Doe v. Boyertown, it will probably have to announce whether transgender teenagers – most of whom haven’t legally changed their gender – are, for legal purposes, members of the sex they were born into or members of the sex they identify with.

Quite a different issue is a stake in R.G. & G.R. Harris Funeral Homes, Inc. vs. Equal Employment Opportunity Commission. Here, a transgender woman named Aimee Stephens was fired after coming out to her coworkers at a Michigan funeral home. She won in the Sixth Circuit, which ruled that Title VII protects people from discrimination that’s based on their transgender status. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” wrote Judge Moore.

The Alliance Defending Freedom appealed the Sixth Circuit’s decision, and now its cert petition is pending at the Supreme Court. The petition presents two main questions. One of them is whether the phrase “because of sex” in Title VII indeed includes gender identity and transgender status.

The other involves a landmark case called Price Waterhouse v. Hopkins, which held (among other things) that gender stereotyping is illegal sex discrimination. In previous courts, Stephens basically asked, ‘can my employers force me to wear their male employee uniform even if I identify as a woman? Isn’t this sex stereotyping, which would be unconstitutional under Price Waterhouse?’ To these questions, she answered “no and yes,” while the Alliance Defending freedom answered “yes and no.”

You may be wondering why the case is called Harris Funeral Homes vs. EEOC instead of Harris Funeral Homes v. Stephens. It turns out that Stephens had “concerns… about whether EEOC would be able to continue fully representing her interests” after she lost in the district court. That’s why she moved to intervene on appeal. Then, after the circuit court granted this motion, she was still able to file briefs and participate in argument, where she eventually won over the three-judge panel.

The Supreme Court will consider both Boyertown and Harris on November 30th. If they agree to hear either one, we’ll find out next week.


Interview: Josh Blackman

Josh Blackman is a professor of law at South Texas College of Law Houston. He writes frequently about the Supreme Court, constitutional law, and any other legal topics that come his way. You may have seen his commentary in the Wall Street Journal or on his eponymous blog. Below is his conversation with Curtis Herbert.

Curtis’s questions are in bold; Professor Blackman’s answers are in plain text.

What was high school like for you? Did you know you wanted to do law stuff and teach?

Oh no, no, no. No, not at all. I went to Staten Island Technical High School, which has now become somewhat famous, but it wasn’t very famous when I went. We mostly had engineering stuff. I did okay in AP political science, and I liked all those sorts of classes, but I was really more interested in science. I didn’t decide that I wanted to go to law school until my junior or senior year of college, and I actually wanted to do IP work because I have a tech background. I didn’t take a single con law class until my second year in law school. But once I started law school, I realized that I loved con law.

So, you’re a busy man. You have teaching, writing, an insane speaking tour, you founded the Harlan Institute, Fantasy SCOTUS, and you work with LexPredict. How do you balance it all?

I have a lot of structure in that I know how much time something will take, and I work very quickly to achieve it in that time. So as long as I have a general idea of my schedule, I don’t fall too far behind, and I try to always get things done when they are due. But I have a wide range of interests, and I’m very fortunate that the job I have allows me to do so many fun things. I love what I do, and it’s very fun. I’m always very fortunate to do what I do for a living.

You certainly seem to have a lot of fun on your blog. How do you find such interesting and unique things to talk about?

Well, the beauty of my job is that current events largely dictate what I write about. Every day, there is some new issue that hasn’t been considered before that implicates federal or state constitutional law. And I’m often asked to decide, on a fairly expedited basis, how to think about those cases. So it’s a very fast-moving career. I’m grateful that I have this opportunity, but I never know in a given week what will happen. And indeed, since President Trump’s election, that process has sped up rapidly. The first month, January 2017, right after the inauguration, I did over 100 media interviews because things were moving so quickly. I think it’s slowed down a little bit now – not so much because there’s not new stuff, but because people have become sort of numb to it, and they don’t overreact the same way they did over a year and a half ago. But I think a lot of the challenge is trying to keep sane, and keep a sober and neutral approach, and not simply fly off the handle whenever something new happens. People want cerebral analysis as best they can.

I suppose the hot takes can’t reign supreme forever.

Yeah, I’ve made a conscious effort to not do hot takes anymore. I used to. They’re time-consuming, they’re often wrong when you look at things so quickly, so I’m trying to take some reflection time before I go off the rails and drop a hot take. I try really hard not to. It’s not always possible, because generally, the way our press works is the first person to write something gets to define the narrative. So when you don’t come out first, you let someone else define the narrative, and they could be deadly wrong about it. Once people get their initial perception, they don’t change it.

Then you also have to engage on their terms rather then setting the agenda for yourself, which is another issue.

Yeah, I try very hard not to feel compelled to respond to other people. It takes a lot of self control, especially on Twitter, to just let something sit and not respond, but trying to dissuade people on social media is a waste of time; you’re not going to win. And if you’re trying to tell someone they’re wrong, you’re not going to prevail either. So I don’t go down that road. I don’t think it’s productive, but there are a lot of things you can do to try and educate people short of arguing back and forth.

Shifting a little bit to the current Supreme Court term, I think the million dollar question is: do we get Chief Justice Roberts in Shelby County, or do we get the Chief in NFIB? Do you think we get a restrained Chief, a squishy minimalist, as Ilya Shapiro might say, or will Roberts shift towards Justice Alito or Thomas?

One thing to know about Chief Justice Roberts: he always disappoints me. At every juncture, he always finds a way to disappoint me, and I think he will continue to do so. In the olden days, about six months ago, lawyers would try to write briefs to appeal to Justice Kennedy;  they could basically write ‘Kennedy’ on the cover of the brief. And I think now, everyone is going to try to appeal to Chief Justice Roberts at every juncture, hoping that his concerns for the institution and for minimalism will persuade him to resist his conservative instincts.

I think it’s very silly and transparent; Roberts is going to do what he wants to do. He will probably moderate a little bit more than before. I think Roberts will try and follow precedent unless it’s an issue he cares a lot about, like affirmative action or voting rights – so the question is if it’s an issue he really cares about. With the Obamacare case, I don’t think it’s an issue he really cares about, unlike, say, affirmative action or voting rights, which are areas where he could probably push the court to the right. I don’t know about other topics, but he will disappoint me like he usually does every June.

Let’s get a bit more technical. One thing that jumped out at me when I was reading the most recent edition of the Harvard Law review was the piece on Lucia v. SEC, and I recall reading a blog post of yours about whether Mueller could be considered an employee rather than an officer. How is that question changed by Lucia?

So the short answer is: I think there’s an open question here. Under our Constitution, you have the Appointments Clause. And the Appointments Clause allows the President to appoint people to certain types of principal positions with the advice and consent of the Senate. For other types of positions, called inferior officers, Congress can allow that person to be appointed without Senate consent. But there are lots of people who aren’t principal officers, and who aren’t inferior officers, who are something else. The Court has generally called these people ‘employees,’ whatever that means.

With Mueller, one of the aspects of his position is that it is temporary. As soon as he finishes his job, his office dissolves. And the Court, in Lucia, said that one of the aspects of an officer is that it’s a permanent, ongoing position; it doesn’t disappear after a single job is done. So I think you have a credible argument that Mueller isn’t at all an officer, but he is in fact an employee. Then you have a problem, I think, in that Mueller is exercising some real, substantial authority as a special counsel. And I don’t know that a non-officer can exercise that sort of authority. If we’re right that Mueller isn’t an officer, than I don’t think he can exercise that sort of power. That’s a long, complicated analysis, and the Court hasn’t addressed it yet, but I think they will, especially in light of Lucia.

Sort of in line with the Appointments Clause: what’s your take on acting Attorney General Whittaker?

I’m still thinking. It’s a very difficult question, and there are some things we don’t know, like whether he has a new salary, whether he took a new oath of office, whether he has a new commision. So I’m reserving judgement until I see the DOJ’s brief in one of the many cases concerning Whittaker. I think there is good evidence on both sides, and I’m holding judgement.

Will it be like the travel ban case, where it goes to the Supreme Court very quickly?

Well, the urgency here is that there are going to be literally thousands of challenges to Whittaker’s authority. Every immigration appeal in which the AG is trying to be substituted will have this as an issue. And some judge, somewhere, is going to issue a ruling that Whittaker is not the correct AG. At that point, it will just be a race to the Supreme Court, because you can’t have a divided executive branch. If Trump loses, then that means that, whether he likes it or not, Rosenstein is now the acting AG, not just the deputy. Trump will have an AG he doesn’t want. I suppose he could just fire him, but that would leave all sorts of other problems. It’s difficult.

So you think at some point we will have a nationwide injunction?

Well, to be precise, it wouldn’t be an injunction. It would be a declaration to stop the substitution of Whittaker for Sessions. So it’s not really a nationwide injunction, but it would have that effect.

Okay. Just to clarify, though: would that remove Whittaker’s authority as AG?

If the Supreme Court were to rule that Whittaker needed Senate approval, then it would. I suppose the Trump administration could tell the Supreme Court: screw you, who the hell do you think you are, but I think it’s more likely that they would insert Rosenstein. Or he could perhaps substitute someone else that has been Senate-confirmed.

What are the odds we get an ex parte Merryman situation, where the executive branch, like you said, goes: who do you think you are, what are you doing, I’m going to willfully disregard your order.

Well, you know with Merryman… Have you read Seth Barrett Tillman’s article? Lincoln never actually ignored Taney in Merryman. Most law professors don’t even know this. But to your question, I don’t think he would. He hasn’t yet.

You’ve written about model rule 8.4(g.) which you think imposes on the first amendment rights of lawyers. To tie this back to social media, what if a lawyer is disbarred for a tweet that displays some sort of animus?

Right. So 8.4(g) limits speech that relates to the practice of law that a lawyer knows or reasonably should know could be harassing to others, which includes demeaning speech. One of the questions is: does 8.4(g) apply to Twitter? To the extent that using your tweets in conduct related to the practice of law might be considered, but I’ll answer your question more generally. Can a person be disciplined for engaging in tweets that are deemed harassing? And I think at some point, some bar association somewhere will try to lump in that sort of conduct, and I think it raises very significant First Amendment concerns. The courts have allowed the imposition of liability for workplace sexual harassment because it creates a hostile working environment that actually interferes with your work. I don’t think you can extend that to a mere tweet, from someone you don’t even know. We’re going to have this issue at some point, and hopefully the First Amendment prevails.

The answer to this next question might disappoint me. Is there any hope for those of us who want to see the Privileges or Immunities Clause resurrected? Or is it gone for good?

I think I will disappoint you with my answer. The Court had a shot to give the clause some meaning in McDonald, and only Justice Thomas did. He was the only one willing to do so. Now, the case involved guns, so perhaps in the future some of the more liberal Justices will be willing to consider it if it doesn’t involve guns. But I think it’s very unlikely for a couple of reasons. Substantive due process will give the more liberal-minded justices all of the things they want, and the Privileges or Immunities Clause will terrify the right the way substantive due process does. I think it’s very unfortunate, because this is one area where I think there is widespread agreement that Slaughter-House was wrong. Pretty much everyone agrees on that. But for the Court, precedent was too strong.

150 years is pretty difficult. That’s a lot of rocking of the boat there.

Yeah, well, look at the New Deal era cases. We’re about 70 or 80 years from there, and Justice Thomas is really the only one willing to revisit those cases, and he’s the only one willing to revisit Slaughter-House. After a certain point, stare decisis takes over.

With regards to birthright citizenship, what are the odds that the more traditional, present-day interpretation of the 14th Amendment will prevail?

Well, look: to the extent that you have a longstanding practice that people rely on, birthright citizenship is one of them. If you were to suddenly say that, retroactively, people are not citizens if their parents were not citizens, suddenly you would have millions of citizens become non-citizens. And there’s no way to untangle that mess. But I think you don’t even need to rely on stare decisis. I think, as an original matter, the better answer is that the phrase ‘subject to the jurisdiction thereof’ concerns people who are here subject to our laws, and I think that is all you need to know. Once you accept that original meaning, then that’s the end of it. I think there is evidence that goes the other way, but the best answer is to have birthright citizenship.

What do you think about the Commerce Clause? Is that an issue that the Chief Justice doesn’t care enough about?

Well, even in the Obamacare decision, he was willing to limit the expansion of the Court’s Commerce Clause jurisprudence, but then he turned around and saved it with a saving construction. He might be willing to limit it, but I don’t know to what extent.

My understanding of the Commerce Clause is that you never really see Congress’s power reduced. It either plateaus, or it rises.

The way my colleague Randy Barnett describes it is “this far, but no farther.” The Court has gone up to a certain point in Raich, wherever that is, but they won’t go beyond that. I think at this point the Roberts Court will hold the line, even if they won’t pull the line back a little bit.

How do you square Scalia’s more expansive reading of the Necessary and Proper Clause in Raich given his position on Necessary and Proper in Printz?

You know, there are some people who think that Scalia’s opinion in Raich is like the drug exception to the Commerce Clause. I don’t quite go that far. I think what Scalia was saying is that when you have these very intricate, complicated schemes that are long-standing, like interstate regulation of narcotics, that Congress has a certain leeway. Printz was unique; it was unprecedented. There has never been a law where Congress attempted to commandeer, or force, state officials to perform federal tasks of this nature. So I do think you can distinguish Printz and Raich on those grounds, although Scalia’s willingness to find a market for interstate drugs is a tough one to square away with the Lopez decision, with respect to an interstate market for guns, and Morrison as well.

Just to play devil’s advocate, I think the ‘drug exception to the Commerce Clause’ position is supported by Scalia’s opinion in Employment Division v. Smith. That’s not the sort of ruling that you might expect from Scalia.

Well, you’re asking a very good question, and I think Scalia’s opinion in Smith is more reflective of his opposition to the decision in Sherbert v. Verner, and the notion that courts can carve out exceptions for generally applicable laws. And even if you read Church of Lukumi Babalu Aye v. City of Hialeah, Scalia wrote a concurring opinion in which he sort of groused, and was like: I don’t really like this, but I think you have to do it. I do think later in life that Scalia had second thoughts about Smith, and I wouldn’t be surprised if the Court revisits Smith in the near future now that he’s gone.

Would a revisiting of Smith cast any doubt on Trump v. Hawaii?

I don’t think so. I’ve made this point several times: I don’t think the Establishment Clause applies in the same fashion to domestic law as it does to foreign policy or immigration. I think that’s the principle of Trump v. Hawaii. The Court says: We’re not applying the case law for the Ten Commandments displays to foreign policy and immigration. I don’t know if it affects that. There is a case this term on this Maryland cross, and one of the questions is what test should we apply? Do we apply Lemon? Do we apply Town of Greece? So I think we might actually get some clarity from the Court about this exact issue.

My understanding is that Lemon isn’t well-regarded in conservative circles, but that’s just what I’ve heard.

The problem with Lemon isn’t whether I like it or not – the problem is that it’s not consistently applied. If the test was actually consistently applied I wouldn’t mind it so much, but the Court seems to apply Lemon every couple years and then never again. So I think there’s a good chance the Court just kills Lemon all together. The Court just hasn’t consistently applied it. In McCreary County they kind of applied it, but not really, in Van Orden they didn’t, in Town of Greece v. Galloway, (that was the prayer case,) they didn’t apply it – so I think it’s not a very good test to apply.

You have a knack for making legal issues comprehensible and easy to follow. Where did you get that from?

I don’t know where I got it from. I think about how to say things in a clear fashion, where there is no ambiguity, all my words are chosen in a specific fashion, so that my reader knows exactly what it is I am trying to convey. I do this in my writing, but also in my teaching. When I teach students, I teach students from all across the country at different schools. These students have different backgrounds and different approaches. I don’t presume anything. When I walk into a class, or when I go give a lecture on the road, I assume my audience knows nothing. I assume they’ve never heard of me, and I start from scratch. My hope is that if I write clearly, and assume people know nothing, that it will be understandable. And I work very hard. I can spend minutes on a sentence, just rearranging the words, seeing which one reads better. I always want my audience to know exactly what I’m saying so there’s no ambiguity, no misplaced modifier, no long clauses where in the middle of the sentence, you forget what the hell the subject is. It sometimes has a more staccato, a more short, pointed approach, but I prefer clarity over flowery language.

It’s a good approach when you’re writing tests.

Yeah. When you’re writing exams, you have to anticipate every single issue that may arise – students might run into a problem, but you can’t answer their questions during the exam. So I try to eliminate as many problems as I can, and make the exams as stripped down and narrow as possible.

Before I leave you, I have a bit of trivia for you. Are you prepared?

Yeah, sure.

Okay. This justice’s father was a renowned poet whose most famous poem was about the U.S.S. Constitution.


Yeah. It was Holmes. His father is actually in my American literature textbook. There are several pages of his poetry.

I knew his father was a poet, though I’ve never read any of the Oliver Wendell Holmes Sr. poetry. Was it good? Do you like it?

It’s very good. It’s written in this very direct fashion, where every other syllable is emphasized; it’s iambic. He has 8 syllables in a line, and then 6, and then 8, and then 6. It’s very short and to the point. It has a nice rhythm to it.


And that’s the end of the interview. Thanks for reading!

Thanksgiving Special

by Curtis Herbert

As you, the wonderful reader, awake from your food-induced slumber, I have prepared a slightly less serious blog post for today. It concerns the entirely fictional and (somewhat) salient legal topic of whether President Trump can pardon a turkey, as set forth in Turkey Food Corp. v. Trump. Jokes made here do not in any way reflect actual legal views or advice; their purpose is to evoke laughter, not lawsuits. Nothing is meant to demean or ridicule the justices.

We begin with the facts. Turkey Food Corp. is seeking damages for what it considers the improper pardoning of its turkeys, Peas and Carrots. Right before Turkey Food Corp. was going to slaughter the turkeys, it was directed to keep the turkeys alive; these very turkeys had been pardoned by President Trump! Because of the lost sales opportunity, Turkey Food Corp. sued.

I will start with the majority opinion by the Chief Justice, joined by Justices Alito and Kavanaugh, which holds that although the President may have exhibited animus towards some turkeys in his November 2018 tweet, saying “Peas and Carrots are the BEST! ALL other turkeys are just that: TURKEYS!” the case is about the President rather than this President. Turkey Food Corp. is not vindicated by the fact that the President had his sights on their turkeys specifically. Regardless of what it might see as prejudice, the role of the Court is not to examine deeper motives, especially in the sensitive area of turkey pardoning. So President Trump’s pardons were perfectly legal.

Justice Kagan’s concurrence examines the historical practice of turkey pardoning. Given that, as she notes, what we are dealing with is a longstanding presidential tradition, stare decisis concerns mandate that the Court upholds the practice. The reliance interests at stake are high: if the Court inserts itself into this contentious issue by finding for Turkey Food Corp., then millions of Americans will be deprived of essential entertainment.

Justice Thomas, in a solo dissent, explains the originalist rationale that compelled him to find for Turkey Food Corp. In his mind, there is not even a remote possibility that the President was granted such broad pardoning powers. Relying on a great deal of historical sources, he asserts that the pardoning power only extends to cases where there has been an actual criminal conviction, rather than merely an intent to butcher turkeys. He also argues that the pardoning power only applies to humans. In an unorthodox move, he would also hold that Turkey Food Corp. must be paid in gold if they so desire; Knox v. Lee was wrongly decided, and the narrow interpretation of the Necessary and Proper Clause that Chief Justice Chase adopted in Hepburn v. Griswold was correct.

A concurrence by Justice Gorsuch counters several of Justice Thomas’s originalist arguments. Wielding his own arsenal of historical sources, Justice Gorsuch says that the pardoning power does indeed extend to cases where a conviction has not occurred, and that it can be used to pardon animals – and perhaps even plants.

In a dissenting opinion joined by Justices Breyer and Sotomayor, Justice Ginsburg writes that the Court’s obligation to dispense justice stops for no man, woman, or turkey. The President’s unique animus against turkeys not named Peas or Carrots prevented him from legally exercising his pardoning powers. While there’s no doubt that, as Justice Kagan says, turkey pardoning must not be overturned wholesale, it’s the Court’s obligation to evaluate improper pardoning where there is concrete evidence of animus. She also explains that nobody actually likes peas or carrots.

Interview: Tom Goldstein

by Anna Salvatore

Tom Goldstein is the co-founder of SCOTUSblog. He’s also an experienced oral advocate, as he has argued forty-two Supreme Court cases in the last twenty years. Just last month he represented the respondents in Air and Liquid Systems Corp. v. Devries. I’m psyched that he agreed to talk with me about his teenage years, his internship for Nina Totenberg, and his recent challenge to the Attorney General’s appointment.

My questions are in bold; his answers are in plain text.

I read that when you were 13, you typed up a CV and asked your local computer store if you could work there. How did the store employees react when you handed them that CV?

Well, it’s always been my experience that if you say to someone, “I want to work for you, and I’ll do it for free,” or “I’ll do it for food,” that they’re pretty happy for the help. So I think they were fine with it, so long as I stayed out of people’s way and didn’t try to overreach. I worked every Saturday for a Chick-fil-A sandwich. I’m sure it was entirely illegal, but it was a good experience for me.

What was your prior computing experience? 

There really wasn’t a lot of computing experience to be had. This was the birth of personal computers, so these were the very first Apple personal computers and the very first PCs that were coming out. And so nobody had a lot of experience. That is to say, I had just as much experience as anybody else. I mean, I had a computer, and I played with it — that sort of thing. But I actually was as interested in the sales part of it as I was the substantive computing. I was never anything like a hardcore coder. I never worked inside the boxes, taking them apart and fixing them. It was always bigger picture and sales.

How did selling computers improve your public speaking skills?

You know, if it had any effect, I suppose it was just in being comfortable in a lot of different situations. The law has a sales element to it, both in terms of advocacy and building the business. It may well have just reflected something about my personality to begin with: that I’m comfortable doing that. But at the very least, it certainly didn’t hurt.

Were your parents similarly comfortable talking in front of other people? 

No. Not at all. My dad was a doctor, my mom a lawyer, but never in roles like this. They both had their practices, but it wasn’t that they sought out an audience. They were much less attention-seeking than me.

My mom was a contract lawyer, mostly for the Port Authority of New York and New Jersey. Her work was never something we really got into the weeds about, because it tended to be highly technical legal agreements on behalf of the Port Authority. She also did some Russian trade work. So my work as a lawyer never really followed, say, in the footsteps of my mother as a lawyer. We’ve always done very, very different things.

What were you like as a teenager? 

My big thing in high school was debate. When I was a high school freshman, we were in Florida, and I went to a high school that it’s big thing was debate. So I was really lucky in the sense of getting that exposure. Then we moved to Columbia, South Carolina, and my dad and stepmom were able to pick out a high school that had a debate program. When I got there for the final three years of high school, it completely consumed me. So that’s really what I did. I had some friends, of course, and did the usual things, but I spent my academic year doing debate. The rest of the time, I continued to do computer-related work: either computer sales or other kinds of computer administrative stuff.

In a typical school week, how much time would you spend debating?

All of it. [laughs] Both in high school and in college, I really threw myself into that. School was kind of secondary to the debate work that I did. I can’t even calculate it. All of my free time, probably.

It’s probably hard to pin down, but why you were so attracted to debate?

I don’t know. Probably the same things that drive me to really love the law. I love the analytical problems, and working through them, and then the advocacy. It’s junior-varsity law. And so I always knew I was going to be a lawyer, and I always knew that I’d focus on debate in high school and college.

How did your debate tournaments compare to your current oral advocacy?

They’re radically different stylistically, because that was an era where it was policy debate and team debate. There were two of us, and we would talk really fast and try to make as many arguments as we could. But in terms of the skill set, it was pretty similar. That is, doing a lot of research, breaking down problems, constructing arguments, figuring out the priority of arguments, how arguments interact with each other… that was real training for the work I’ve done as a lawyer.

What were some valuable pieces of advice that you received in debate?

I think probably the one lesson that was told to me in debate, in high school and college, is don’t be too tricky. Try and be more straightforward. Try not to be slippery in your argumentation.

And I suppose another lesson I’ve learned from that process was to appreciate the strength of the other side’s arguments, and to expect that the other side will come up with the best possible arguments. That’s been particularly relevant at the Supreme Court, because the lawyering on the other side is done at a very high level.

What I really try and do is just have ownership of the subject matter. I imagine if I was on their side, what the strongest possible argument I could construct is and go from there. The nice thing about the Supreme Court is that we almost always have the benefit of lots of other things that have been written on the subject: lower court opinions and lower court briefings. So I’m very rarely starting from scratch. But the ordinary analytical approach, and the ordinary approach in terms of advocacy, is to put your best foot forward, and then to respond to the other side. Don’t seem too defensive. I’ve always tended to have the structure of our argument, and then the structure of their argument and what I would say about it.

When you were in high school and college, you debated all the time. But you started to focus much more on your schoolwork when you went to law school. What changed?

After college, debate ends. If there had been debate in law school, I probably would have stayed in it. And I just loved law school. I really enjoyed the substance of all the classes, I liked working with the other students, the other activities, the law review and moot court… I was built for law school. It was what I was meant to do. So I just woke up and did law school, and eventually went to sleep, and did the same thing the next day and really enjoyed myself. That helped a lot; if I had been miserable, I’m sure I would have done poorly.

I just really, really, really liked it. I was learning new things all the time at a high level. I was not burnt out from school, because I hadn’t paid attention in high school and college. [laughs] I had plenty of academic interest left in me. So I don’t remember a minute I didn’t love of law school.

How did you snag your internship with Nina Totenberg as a law student? 

That was another illustration of the principle of calling the computer store. I just called her one day. I was in my first year in law school, I was having a hard time finding a paying law firm job for the summer – which is what people try to do in general – and I was interested in the Supreme Court a little bit. I thought I might write a paper about it. And so I remembered distinctly thinking, “Well, why don’t I work for somebody for free and see who needs the help.” I thought of NPR, because I always think of NPR as having no money. And I just called her one day.

Did she also pay you with Chick-fil-A sandwiches?

I did not even get a Chick-fil-A sandwich. I occasionally would get a biscotti, but it was highly irregular; it was not a meal I could count on.

What were some of your responsibilities during the internship?

I did intern-y things for her; I opened the mail. But I was her intern for two summers, and I did some more substantive work by the end. At that point she had the confidence to let me do some interviewing. And I did these statistics for her on the Supreme Court term in terms of voting patterns and the like. That ended up being very valuable, because I kept doing that after the internship and did it with the press a lot. It’s how I first got exposed to the Supreme Court press corps. I was very lucky, because in the two years that I was her intern we had two Supreme Court confirmations: the Ginsburg and Breyer confirmations. And that was great exposure for me.

How did you collect data on the justices’ voting patterns? 

Yeah, it’s pretty funny. Anyone who actually knows anything about statistics would laugh because this was using a calculator. This was just coming along and putting in two justices voting with each other. I think it was the most basic Excel spreadsheet you could imagine. But for lawyers and for reporters covering the Supreme Court, it was mainframe-level calculus, [laughs] when in fact it was super, super simplistic.

I’ve always been a real modest believer in the value of the statistics. Because they can tell you things about an aggregate, but in any given Supreme Court case, if you really want to do a good job at understanding it, you’ve gotta study the case way beyond the numbers. I collected the data at the end of the term so reporters could get a generalized sense of how the conservatives had done, how the more liberal justices had done, what the alignments were — because it’s hard for the general public to understand the term as a whole. It was a pedagogical tool.

Tell me about how you obtained a clerkship after law school.

Nina got me a clerkship with a district judge, who ended up being someone that I really didn’t like and who smoked like a chimney… So I left that job, and Nina got me a job with Judge Wald. She had an empty slot for about six months. Then I worked for another judge who needed a clerk for a couple of months. Weirdly, although I think of myself as having been a Wald clerk because I was there for six months, I actually had three clerkships in one year.

How did your writing improve over the course of those clerkships?

I remember very distinctively how I drafted my first draft opinion for Judge Wald. She came in, she handed it to me, and it was literally covered in red. Entirely covered in red editing marks. Then she said, “Do you want to talk about this tomorrow?” I definitely learned a lot about writing from the judges. The big problem in my writing then was that it would be too telegraphic, in that I assumed too much knowledge by people. She was a very good explainer.

Who are your favorite writers that have nothing to do with the law?

 I don’t know if I have a favorite writer who has nothing to do with the law, because most of the reading that I do, regrettably, relates to the law. I do read voraciously when it comes to current events. I just don’t read novel-style work, that sort of thing, or poetry. The reading that I do is not very stylistic. It’s much more factual. I overwhelmingly read the daily press; I might read 100 articles in a day to understand what’s going on in the world. So I don’t tend to think in terms of style. And I should say, I don’t really read editorial pieces. I’m much more interested in factual pieces.

Okay – then who are your favorite legal writers?

I think the best writers on the Court are the Chief and Justice Kagan, probably. They have a wonderful balance between being direct and accessible for readers who aren’t experts in the field, and also fun to read. I increasingly try to write like that, so if you read the motion to substitute that I filed in the Supreme Court recently on Acting Attorney General Whitaker, it’s at attempt to be both very substantive but also to occasionally turn a phrase. I want you to enjoy reading it.

“Schrödinger’s Attorneys General.”

Yes, stuff like that.

You said something interesting in a recent interview: that in most oral arguments, you try to find the one issue that you can persuade one justice on. How much of this approach is pre-planned, where you have an idea of which justice and which issue you’re going to pinpoint, and how much is feeling it out in real time?

It’s a lot of feeling out in real time, but definitely I have ideas going in. It’s one of those situations where you have to prepare as best you can, then stay flexible because you can be surprised. You can have these situations where you’re thinking, “Okay, this is a case where it’s the liberals against the conservatives,” and then you show up and Justice Ginsburg starts asking you hard questions. And you’ll be completely thrown off your game because you’re like, “Wait! You’re supposed to be on my side. What’s going on?” So it’s definitely both of those.

But it’s really a situation that people don’t take advantage of enough, I think, in arguing at the Court. That is, you’re having a conversation with them in which they’re telling you what matters to them. We as advocates too often get caught up in making our own points and not listening or trying to be responsive to the justices’ concerns. Advocates also forget where we are in the process by the time we get to oral argument – the justices have had these briefs for a long time and talked with their law clerks. It’s very unlikely that you’re going to completely change their mind about first principles. So my thinking about oral argument is much, much more modest than other people’s. It’s not like I’m giving up or anything; it’s that what I’m trying to accomplish is maybe more nuanced.

That reminds me of another thing you said in the interview – that even when Justice Breyer presents a looong hypothetical, he’s in fact helping you by explaining how he views your case.

Yeah, some of them will do that. Justice Kennedy would do that some. Justice Breyer will do that a lot. And that’s when they do it explicitly. Other times, you can basically infer where they’re at even when they’re not saying it outright.

It is hard to keep up with Justice Breyer’s hypotheticals because they can have so many different parts. Maybe I’m just not good enough at keeping all those balls in the air at the same time. But if a justice of the Supreme Court says, “I’m going to do X unless you convince me otherwise,” it’s only helpful. Then it’s all on the table.

When did you realize that your modest approach was more useful than trying to convince all nine justices of every point? How long did it take you?

Too long. [laughs] It was definitely a ways in. I’ve now done forty-two – it probably took me ten or fifteen arguments over the course of six or seven years to get to this point.

Do you prefer arguing first or second, and why?

Definitely second. It’s better to argue first in the sense of being the petitioner, because the petitioner usually wins. But being second is so much better because you get to listen to the questions in the first half and see what justices are concerned about what. It’s much easier to influence the process as the respondent, but it’s much harder to win.

When I argue second, I’m not paying attention to what the lawyer on the other side says much at all. This also is something different about me, because the natural tendency is to listen to what they say and then think about how they’re lying and how you’re going to respond to it. My mental energy is going into, “Why did the justice ask that question?” I might take a note, but I’ll never look at it later. It’s just that the process of writing notes is useful for me in terms of focusing the mind. And in general I will keep track of who’s asking questions that are favorable or hostile to what side. And I’ll note the subject matter of the questions, so that I can have a tool to see if a justice comes back to something multiple times.

But it really is a process of not letting your brain get cluttered. It’s very possible to try to stand up and say twenty things, but you have to remember that you’re actually trying to say three things. You don’t have enough control to get far beyond that.

How are you able to prevent clutter in the days and hours leading up to the argument?

Most people will cut themselves off at some point — like 24 hours beforehand. I do not. I work up until the argument; it’s just my style. If we’re the second argument, I’ll work through the first argument. There’s always more that I can do in terms of making things clearer in my own mind. The one thing I will do, if it’s a big and complicated enough case, is one or two nights beforehand I’ll literally separate myself from everything else that’s going on. I’ll stay in a hotel. The family will come visit, but I’ll try and remove distractions.

If you were a Supreme Court justice, what kind of oral argument questioner would you be?

Probably a lot like Kagan, who is asking questions technically. She’s trying to figure out how it is that she can assemble a Court or persuade one justice. And I might be a little bit like Justice Kennedy sometimes, in the sense that he was frequently interested in how he could write the opinion that addresses a particular issue. Because that’s a lot of what oral argument is: the justices have made up their minds about who should win, but it’s how they’re going to write the opinion. I think those are probably the two things I would do. 

In a way you’ve already been in this position, since you’ve served as a moot court judge.

Yes, all the time. We do that a lot — the members of the bar try to help each other out. Every time someone asks, I try and do it for them. I definitely do a lot more moots than I actually do oral arguments.

Increasingly, I’m trying not to do oral arguments. Every argument I get asked to do, I see if I can give it to someone more junior in the firm just to get them the experience. When you’re at the point where you’ve done as many as I have, you’ve gotten your chances to do it. You have a measure of responsibility to the other people who work with you.

Along with other people at your law firm, you recently challenged the constitutionality of Attorney General Matt Whitaker’s appointment. Your motion was submitted to the Supreme Court, but on the front page you also mentioned a cert petition to the Ninth Circuit. What does this mean, exactly?

What’s happened is that there’s a cert petition that’s pending at the Supreme Court. And I filed a motion that really doesn’t have anything to do with the cert petition. It’s that one of the named defendants is Jeff Sessions, and then when a government official resigns, their successor gets automatically substituted in. So what I have said to the Supreme Court is, you have to decide who the person after Sessions is. The Department of Justice has designated Matt Whitaker as the successor, and I said that’s wrong. The underlying case – the cert petition to the Ninth Circuit – is a guns case involving when you can bring a Second Amendment challenge. But the motion to substitute doesn’t have anything to do with it. And the motion is very honest, because no special issue about Sessions arises in this case. It is just that Sessions is named here and in lots of other cases.

How often does the Supreme Court grant this kind of motion?

I’m not familiar with the Supreme Court ever having been presented with this kind of motion. There’s never been a contested substitution of a government official. We can’t even find one in the lower courts, either. Generally speaking, there is a designated successor. Somebody either becomes the successor automatically or is named. We haven’t been able to find other fights about whether somebody was lawfully named the successor. In general, I think maybe what’s happened is that people tend not to fight the issue in the context of a successor motion. Obviously there have been fights over whether somebody was validly appointed. Using the successor provision as the way to have the fight I think is pretty novel.

Nobody really knows what’ll happen. The Supreme Court doesn’t like to do new and different things. It’s built on precedent in a thousand different ways, including how it operates. So I think that their ordinary reaction will be, “We don’t do this sort of thing.” But then it’s a question of, “Is this not an ordinary circumstance, so that they should?” I think the burden will be on us to prove it.

Other interviews conducted by Anna Salvatore: UChicago law professor Justin Driver, former Solicitor General Neal Katyal, court artist Art Lien, New York Times Supreme Court correspondent Adam Liptak, UCI Law Professor Leah Litman, litigant extraordinaire Fane Lozman. former Court writer Linda Greenhouse, legal writing expert Ross Guberman, Georgetown professor Shon Hopwood, NPR reporter Carrie Johnson, Fix the Court Director Gabe Roth, IU Maurer Law Professor Ian Samuel, and Lawfare editor-in-chief Benjamin Wittes. 

Monday, November 19, 2018

by Curtis Herbert

Twice in the past three years, the Supreme Court has prevented the enforcement of a law under the Due Process Clause because it was unconstitutionally vague. This happened most recently in Sessions v. Dimaya, which concerned a statutory provision allowing deportation of individuals convicted of a “violent crime.” Recognizing that the law “produces more unpredictability and arbitrariness than the Due Process Clause tolerates,” the plurality determined that the law could not stand due to its vagueness.

Justice Gorsuch wrote separately to provide an originalist rationale for the Court’s decision and to encourage the Court to apply the void for vagueness doctrine to a wider variety of civil cases. He cited English common law authorities such as Coke and Blackstone, as well as a smattering of early Supreme Court precedent and constitutional structure. He also raised separation of powers concerns, though for the time being I will restrain myself to the due process concerns.

In the most recent edition of the Harvard Law Review, there is a piece expressing some dissatisfaction with the holding in Dimaya. The authors contend that, “Perhaps what is most important about Dimaya is what it did not do: it failed to give future courts binding precedent about how the vagueness doctrine should be extended (or not) going forward.”

Because the ruling was inconclusive – there was only a plurality, not a majority – the future of the vagueness doctrine is, in a twist of irony, vague and uncertain. The authors suggest that, “Ad hoc extension of vagueness doctrine could create arbitrary and unpredictable outcomes in individual cases – exactly what the doctrine is trying to prevent.” To me, this screams one thing: a multi-factor test. Today I have created such a test, derived from our founding principles.

The first step is to discern the original requirements of the Due Process clause. This begins with acknowledging, as Justice Gorsuch puts it, that “today’s vagueness doctrine owes much to the guarantee of fair notice embodied in the Due Process Clause.” I think this is the best way of looking at vagueness: as an extension of the logic espoused in what he calls “perhaps the most basic of due process’s customary protections,” which has also been described in the Harvard Law Review as essential to our modern justice system.

The same HLR piece explains that, “The American Founders and the Enlightenment thinkers who influenced them viewed fair notice as a requirement for fairness, legitimacy, and social utility.” Vagueness is an offshoot of fair notice, as both rest on the fundamental principle that laws must be accessible to those who are expected to abide by them. To that end, the piece continues, “Modern conceptions of fair notice have also recognized that clarity is necessary for citizens to appraise themselves of the promulgated law.”  Fair notice dictates not only that the law be accessible, but intelligible.

This principle is further illustrated in the ex post facto clause of Article One. Because “fair notice was important enough to be enshrined in the Constitution for at least one type of situation… the concept should be respected — albeit in a less absolute sense — in other contexts as well.” The clause helps to prove that the Framers cared deeply about laws being accessible to the populace, a notion that was enshrined in the ex post facto Clause as an absolute prohibition on any and all ex post facto laws. (Ex post facto laws are made after the fact and apply retroactively, meaning that a person can be imprisoned for an act that was still legal when they committed it.) While I do not advocate for a test that would any purge any and all vague laws, I do believe it is necessary to understand how central the role of fair notice (and with it, prohibitions on vagueness) is to the Constitution.

Justice Gorsuch notes some further evidence that clear laws are a constitutional mandate, pointing out that vague laws interfere with other provisions of the Constitution, rendering constitutional protections effectively useless. Being informed of the crimes for which you have been arrested is no comfort if the statute is so vague as to be meaningless. Likewise, a protection from warrantless searches and seizures is worthless if the police can get a warrant for anything under a number of vague and undefined laws. Many other guarantees of the Constitution – free speech, free exercise, and Fourteenth Amendment – are also tainted by the existence of unclear laws. Only a small minority of people have access to high-powered lawyers, funds, and the time to invest in litigation. Faced with the prospect of being jailed on some obscure, garbled charge, many people will simply choose not to exercise their rights. This is a position endorsed by precedent; the Court has long recognized the unconstitutionality of overly broad laws that have a chilling effect on speech.

We can also look to the “customary procedures to which freemen were entitled to by the old law of England” (Pacific Mut. Life Ins. Co. v. Haslip) to discern what the Due Process Clause protects. I direct the reader to Justice Gorsuch’s concurrence for a brief history of the common law roots of the void for vagueness doctrine, and to the HLR note for a history of fair notice. Having examined what the Due Process demands, I will now set forth a test for determining when a law is unconstitutionally vague.

1: As the severity of the penalty increases, so does the constitutional mandate of clarity. For that reason, laws that impose severe penalties, threatening to place or placing a person in jeopardy of life, limb, or livelihood, will be more closely examined for vagueness than laws which impose a lesser burden on the defendant.

2: Ambiguity, however, is not to be stamped out in all forms. Lawyers and judges may disagree on a law, but when it is so vague that it requires speculation on the judiciary’s part, declines to set forth an intelligible standard, and is so vague as to prevent a reasonable person from fulfilling her obligation to be informed of the laws, it cannot stand and is void for vagueness.

3: If a statute is unclear, courts can instead examine for vagueness the interpretation or definition of an agency which has lawfully been given the authority to define the statute and issue binding regulations. (Assuming that Chevron remains good law.) But courts cannot substitute an agency’s judgment regarding a similar statute, nor can they uphold a vague and indeterminate agency interpretation or regulation.

Monday, November 12, 2018

by Anna Salvatore

You may have heard that Stan Lee, the editor in chief of Marvel Comics, died today at age 95. Obituaries are hailing him as the superhero of the comic book world. He created a who’s who of famous characters in his long career, including Superman, the Hulk, Doctor Strange, and the Fantastic Four.

How does Stan Lee connect to the Supreme Court? Well, back in 2015 the justices heard a case called Kimble v. Marvel Entertainment. They considered whether patent holders can charge for royalties even after the patent’s term expires. If the justices answered “no,” they would have to abandon a 1964 precedent called Brulotte.

I made this case sound a lot more boring than it really is, because it also involves “spider person” toys with foam-shooting fingers! Here are the facts, which I’ve copied from Justice Kagan’s majority opinion. 

In 1990, petitioner Stephen Kimble obtained a patent on a toy that allows children (and young-at-heart adults) to role-play as “a spider person” by shooting webs—really, pressurized foam string—“from the palm of [the] hand.” Respondent Marvel Entertainment, LLC (Marvel) makes and markets products featuring Spider-Man, among other comic-book characters. Seeking to sell or license his patent, Kimble met with the president of Marvel’s corporate predecessor to discuss his idea for web-slinging fun. Soon afterward, but without remunerating Kimble, that com-pany began marketing the “Web Blaster”—a toy that, like Kimble’s patented invention, enables would-be action heroes to mimic Spider-Man through the use of a polyester glove and a canister of foam.

Kimble sued Marvel in 1997 alleging, among other things, patent infringement. The parties ultimately settled that litigation. Their agreement provided that Marvel would purchase Kimble’s patent in exchange for a lump sum (of about a half-million dollars) and a 3% royalty on Marvel’s future sales of the Web Blaster and similar products. The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).

And then Marvel stumbled across Brulotte, the case at the heart of this dispute. In negotiating the settlement, neither side was aware of Brulotte. But Marvel must have been pleased to learn of it. Brulotte had read the patent laws to prevent a patentee from receiving royalties for sales made after his patent’s expiration. So the decision’s effect was to sunset the settlement’s royalty clause. On making that discovery, Marvel sought a declaratory judgment in federal district court confirming that the company could cease paying royalties come 2010—the end of Kimble’s patent term. The court approved that relief, holding that Brulotte made “the royalty provision . . . unenforceable after the expiration of the Kimble patent.” The Court of Appeals for the Ninth Circuit affirmed, though making clear that it was none too happy about doing so. “[T]he Brulotte rule,” the court complained, “is counterintuitive and its rationale is arguably unconvincing.”

You can read the full opinion here. The Court ultimately decided not to overturn Brulotte, as it found no “special justification” to stray from such an entrenched precedent. More importantly, from the perspective of a high school blog, the opinion contained a bunch of comic book references.

  • “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”
  • “As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte. But the kinds of reasons we have most often held sufficient in the past do not help Kimble here.”
  • “Patents endow their holders with certain superpowers, but only for a limited time. In crafting the patent laws, Congress struck a balance between fostering innovation and ensuring public access to discoveries.”
  • What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).

Regardless of whether you’re a comic book fan, I hope this case brought a smile to your face.