Monday, February 25, 2019

Lots to pick through in this morning’s orders list.

The flashiest item was the justices’ five-page opinion in Yovino v. Rizo, an unusual case that arose when Judge Stephen Reinhardt of the Ninth Circuit authored a majority opinion and then died before the opinion was officially issued. Even though the vote count, the opinion, and all concurrences were final before Reinhardt died, there was some uncertainty about whether a decision could be released in a dead judge’s name. It turns out the answer is no. The unanimous Court pointed to a few common sense reasons, like the fact that decisions are only final the moment they are decided and that Judge Reinhardt was technically not a judge when his opinion was released. “Federal judges are appointed for life, not for eternity,” it concluded.

Although nine justices agreed on the same outcome – that Reinhardt couldn’t cast a vote from the grave – Justice Sotomayor chose not to join the opinion. This prompted UT law professor Steve Vladeck to tweet the following: “Perhaps she found the opinion a rather overdone and snarky effort to make a very simple point, and wondered if the Court would’ve been quite so glib about the same conduct by a different circuit with respect to a different (former) judge.” The context here is that Reinhardt was a famously liberal and influential judge on the Ninth Circuit Court of Appeals, and over a dozen of his opinions were overturned by the Supreme Court during his 38 years on the bench. I know as much as the next person about why Justice Sotomayor only concurred, so of course she may have had substantive reasons for refraining to join. But considering the Court’s conservative tilt and Reinhardt’s liberal tilt, Professor Vladeck’s tweet seems plausible.

I first heard about Yovino on the First Mondays podcast, which I have enjoyed listening to for the past couple years. Those of you who spend time on Twitter may have heard of it. Hosted at various times by law professors Dan Epps, Ian Samuel, and Leah Litman, the podcast analyzed Supreme Court news as it happened and occasionally featured guest speakers who were experts on a particular issue. When I first began listening to the show, a significant chunk of the content sailed over my head. It almost seemed like these big-shot law professors were speaking another language. But like a toddler who learns to talk by sitting in the corner and listening to her parents babbling, First Mondays gradually began making sense to me. It taught me an inordinate amount about legal vocabulary, the everyday functioning of the Court as an institution, and the importance (or unimportance) of decisions in real time. I was sorry to hear on Saturday that both Leah Litman and producer Melody Rowell left First Mondays, for it’s now in hiatus and unlikely to return. I would have liked to hear the hosts’ thoughts on this recent opinion.

Anyhow, another tidbit from today’s orders is that the Supreme Court agreed to hear a case called Rotkiske v. Klemm. Here the justices will take a look at the Fair Debt Collection Practices Act, a federal law that says lawsuits can be brought “within one year from the date on which the violation” of the law happens. The question is whether the limitation period begins running immediately after the violation occurs, or only after the plaintiff discovers the violation. Amy Howe of Howe on the Court wrote that this case will probably be argued in the fall.

So far I’ve neglected to mention the most fascinating news of today, namely that the Supreme Court declined to hear an Eighth Amendment case out of the First Circuit called Rivera-Ruperto v. United States. The facts of the case are complicated. Some years ago the FBI conducted a sting operation dubbed “Operation Guard Shack” with the goal of exposing police corruption in Puerto Rico. “As part of that sting,” explained the First Circuit “[plaintiff] Rivera participated, while armed, in a number of supposed ‘deals’ involving large amounts of fake cocaine in which agents of the Federal Bureau of Investigation posed as both buyers and sellers.” Rivera was sentenced to 161 years and ten months in prison.

Appealing his conviction, he claimed that his sentence was so incredibly disproportional that it should be held unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment. Back in 2017, the First Circuit seemed sympathetic to Rivera’s claim, but its hands were tied by a 1991 Supreme Court precedent called Harmelin v. Michigan. There the Rehnquist Court upheld Ronald Harmelin’s life sentence for possessing 650 grams of cocaine, even though his sentence was statutorily mandated and didn’t account for his lack of previous convictions. Disproportionate punishments may be cruel, the Court ruled, but they aren’t necessarily unusual.

The First Circuit was so moved by Ruperto-Rivera’s situation that it asked the Supreme Court to reconsider Hamelin. Professor Doug Berman, whose Sentencing Law and Policy blog you should all follow, expressed his disappointment today with the Supreme Court’s refusal to hear the case. Here are excerpts from his short post.

I was sincerely hoping that this unusual statement from an entire circuit might at least get Rivera-Ruperto a single relist from the Supreme Court or maybe just a short statement from some Justices about the issue.  A single relist or a statement about a denial of cert would suggest that there was at least a single Justice who might think that a toothless Eighth Amendment is a problem in an era of mass incarceration.  (Tellingly, the legal press and criminal justice twitterverse has also entirely ignored this case, confirming my fears that one need to be a murderer on death row before just about anyone gets interested in an Eighth Amendment claim.)

But even if Rivera-Ruperto is able to get some relief eventually, I am still this morning left deeply troubled by the notion that not a single Justice seems to be at all concerned about modern Eighth Amendment jurisprudence relating to extreme non-capital sentences.  Sigh.

If the three above storylines aren’t enough for you, the Supreme Court also heard arguments today “in a case involving whether a private nonprofit corporation that runs a public-access TV channel is a “state actor,” who can be sued for violations of the First Amendment” (SCOTUSblog). And tomorrow it hears an important sentencing case, United States v. Haymond.

Thanks for reading.

— Anna Salvatore


Interview: Andrew Coan

Andrew Coan is a law professor at James E. Rogers College of Law, the University of Arizona. He teaches constitutional law, civil procedure, and related subjects. He recently published “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law,” and our interview is largely about this book.

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

What were you like as a teenager, and what were your interests?

I was a pretty serious high school debater as a teenager. That took up a lot of my time and really dominated my interests. I also liked movies and music, and I played a little bit of guitar (not at all well).

What drew you to debating?

Partly it was a competitive outlet for me. I wasn’t any good at sports, but I was a very competitive kid, and debate gave me an outlet for that. I also loved learning about new subjects related to public policy and politics, which had interested me from a very young age. Debate gave me a chance to do that in a serious way, and I got deeper and deeper into it as my high school years went on. That’s probably part of the explanation for my ultimate career choice. Unsurprisingly, a lot of debaters go on to become lawyers.

When did you become interested in studying special prosecutors?

I started to think seriously about special prosecutors as a research project in February of 2018. I had already been interested in many of the constitutional questions that come up in special prosecutor investigations as part of my broader interest in the structural side of constitutional law: separation of powers, federalism, and the like. And as the Robert Mueller investigation picked up steam, more and more people in my daily life started to ask me questions about it. I got the sense that there was a hunger among lawyers but especially among ordinary people to understand special prosecutors. There was a lack of basic understanding about what special prosecutors are, how they work, and what types of legal issues arise in their investigations. In particular, the people I talked to were curious how an official who looks so weak on paper could hope to hold the most powerful man in the world accountable. They were also curious how we as a country came to entrust such a subordinate official with such an awesome responsibility. I did a little bit of digging, and it turned out that no one had written a book about special prosecutors for a general audience. So I decided to do it myself.

It makes sense that you said you were aiming “Prosecuting the President” towards a general audience. That was my impression reading the book, as I felt that similarly nerdy kids at my high school could have appreciated it as much as adults.

I’m glad to hear that you found the book clear and accessible, because I really hoped that high school students would be able to appreciate it, and I had myself as a high school student in mind when I pictured the target reader.

You wrote a Wall Street Journal article about a month ago on how the Whiskey Ring and Teapot Dome Scandals are more representative of the special counsel’s role than Watergate. For people who haven’t read the article, why is that your position?

When people think of special prosecutors, the most recent examples are the ones that spring most immediately to mind. The Watergate investigation is far and away the most famous special prosecutor investigation in United States history because it’s the only one that brought down a sitting president. A broader look at the history reveals that Watergate was, in important respects, the exception rather than the rule.

There have been special prosecutor investigations, as I explain in the book, dating all the way back to 1875, when Ulysses S. Grant appointed the first special prosecutor in U.S. history to investigate the St. Louis whiskey ring. Most of those investigations have stopped well short of raising serious allegations of criminal misconduct against the president himself, and in some cases that’s because the president clearly wasn’t involved in criminal wrongdoing. But it’s also a reflection of the fact that the President has very formidable tools for defending himself and his allies against special prosecutor investigations. Special prosecutors are, for better or worse, relatively weak from an institutional standpoint. They are appointed by the President or by the Attorney General, who serves at the pleasure of the President. They can also be fired by the Attorney General at the President’s direction. It’s a big task for an official in that position to try to hold the President and his inner circle accountable. Basically, special prosecutors are charged with investigating their ultimate boss.

If the history of special prosecutors teaches us anything, it’s that special prosecutors are incapable of saving the American people themselves. Their real power stems from their ability to raise the visibility of allegations of serious misconduct against the President or the President’s inner circle. In this way, special prosecutors give the American people an opportunity to insist on a thorough investigation and, if the evidence warrants it, to insist that Congress hold the President accountable by beginning impeachment proceedings. But all of that really depends on the American people stepping up and maintaining political pressure in response to the special prosecutor’s investigation. And there are all kinds of factors working against special prosecutors when they try to focus the public’s attention for a sustained period of time.

The public’s role in forcing accountability was a striking theme in your book. When in your research did you realize the importance of this theme?

That was in my head from pretty early on, in part because of my familiarity with some of the recent constitutional controversies surrounding special prosecutors. In 1978, immediately after the Watergate scandal, Congress passed a law called the Ethics in Government Act that created a super-strong statutory special prosecutor who could not be easily removed by the President. That statute remained in effect for twenty years before it was allowed to expire after the impeachment proceedings against Bill Clinton. The institution of the independent counsel, which is what special prosecutors were called under this statute, created a lot of constitutional controversy. Presidents argued that an independent counsel who could not be immediately removed by the President was a kind of headless fourth branch of government, unaccountable to anybody, and that this was impermissible under Article II of the Constitution. The Supreme Court disagreed in a case called Morrison v. Olson, which is taught in every first-year constitutional law school class. But after the Clinton impeachment proceedings and the Iran-Contra scandal, many people on both sides of the political spectrum thought independent counsels had too much power. So they allowed the Ethics in Government Act to expire and replaced it with a regulatory special counsel who could more easily be fired by the President. The hope was that this would create a better balance. Special prosecutors who abused their power could be fired by the President but any President who fired a special prosecutor without a good reason would have to answer to the American people. Robert Mueller’s investigation is the first significant test of these regulations.

How did teaching Morrison and other landmark Supreme Court cases make you better equipped to write “Prosecuting the President”?

The second half of my book is organized around a series of big constitutional questions that arise in special prosecutor investigations. And virtually every one of those questions is one that I teach my students about in their first-year survey course on constitutional law. I’ve been teaching this class for over ten years, and there’s nothing that forces you to learn a subject more deeply than teaching it to a group of smart and eager students. So it’s been a great privilege to spend my career batting around constitutional questions with some fantastic law students. I learn a tremendous amount when I teach constitutional law, and many of the ideas that appear in the second half of this book originated in discussions with my students.

What was the most surprising thing that you learned in the course of researching this book?

I think the single most shocking episode I discovered was when Ulysses S. Grant actually testified as a character witness on behalf of his chief of staff, Orville Babcock, during the St. Louis Whiskey Ring investigation. What makes this truly remarkable is that the President of the United States is the head of the executive branch, and when the President appoints a special prosecutor to investigate a scandal like the St. Louis Whiskey Ring, he is delegating the law enforcement authority of the United States and his own Department of Justice to an outside investigator. He is charging that investigator with getting to the bottom of a potential crime. And when the special prosecutor that Grant appointed to investigate the whiskey ring brought criminal charges against a member of Grant’s inner circle, on behalf of the United States government, Grant actually stepped in and offered testimony as a character witness for the defense. In other words, he testified against the prosecution which was taking place in his own name. In doing so, he effectively scuttled the prosecution of his chief of staff just as effectively as if he had shut down the investigation. So that was a very striking episode, all the more so because Ulysses S. Grant has a well-earned reputation for being a personally honest man, one who was thoroughly upright in his own dealings. But he was a truly awful judge of character in his picking his subordinates and in sticking by them, well past the point where they ought to have lost his trust.

Now that you’ve researched special counsels so deeply, what are some annoying or egregious misconceptions that you hear about the Mueller investigation?

One misconception about the Mueller investigation which, of course, the President himself and many of his close associates and allies in the media have very deliberately sought to propagate, is that Robert Mueller is running some kind of political witch hunt. Historically this has been an extremely common charge. Virtually every President who has been investigated by a special prosecutor has directly – or more commonly indirectly – sought to discredit the investigation. Trump has gone significantly further in that attempt than previous presidents. He’s been personally much more vocal and vituperative in his attacks. But this is a long-running theme in the struggle between presidents and the special prosecutors who investigate them, and it’s one that has almost always functioned as a tool of presidential propaganda, rather than being grounded in the facts. There are some isolated individual examples of special prosecutors who have abused their power, or who have carried out their functions so incompetently as to give rise to good cause for their removal. Harry Truman’s special prosecutor, Newbold Morris, is maybe the best example in that latter category. But by and large, over the course of American history, special prosecutors have behaved themselves ethically and responsibly. If there’s been any problem with special prosecutors, it’s that they’ve been too weak and too susceptible to attack by presidents and their allies. Based on publicly available evidence and the flimsiness of the charges the President and his political allies have leveled against the Mueller investigation, I think the most pervasive and the most pernicious misconception about the Mueller investigation is that it’s some kind of political hit job, as opposed to a serious and thorough investigation by highly experienced prosecutors of some very serious allegations.  

Special prosecutors are usually authorized to bring criminal charges. Back in 1924, though, Owen Roberts was able to bring both civil and criminal charges. Would this authorization be possible under the current regulations?

It would but only if the Attorney General specifically authorized it, which Acting Attorney General Rod Rosenstein did not do when he appointed Robert Mueller. That’s not surprising under the circumstances. It just wouldn’t make nearly as much sense for Mueller to be authorized to bring civil actions as it did in the case of the Teapot Dome investigation. There, the prosecutors were charged with investigating a bribery scandal, which culminated in a couple of extraordinarily valuable and fraudulent oil leases. Had those leases been allowed to remain in force, they would have transferred billions of dollars in oil wealth from the American people to private interests. So it was very important that the special prosecutors be empowered to challenge those leases, to prevent the central perpetrators of the conspiracy from escaping with their ill-gotten gains. There isn’t really a comparable need for special prosecutor Robert Mueller to bring civil actions in the present case.

What is the difference between a special prosecutor and a special counsel?

The terms “special prosecutor” and “special counsel” are essentially interchangeable. Both of them have been used at various points over the course of American history, and both mean the same thing. Robert Mueller’s formal title under the current regulations is “special counsel” rather than “special prosecutor.” But “special prosecutor” is the generic term for any outside prosecutor appointed to investigate the President and his inner circle. “Independent counsel” is another term you sometimes hear in this context, which refers specifically to the super-strong statutory special prosecutors who were appointed under the Ethics in Government Act that was in force from 1978 to 1998. “Independent counsel” is therefore not interchangeable with “special counsel” and “special prosecutor,” thought it is occasionally used in that way.

If you had written the special counsel regulations back in 1999, how would they look different from what we have now?

I’m not sure whether it would look different if I had written it in 1999, but there are some changes that I would make to it today. Probably the most important change would be to require a much more robust public report of the special prosecutor’s findings than is currently required under the regulations, at least in investigations involving the President, who cannot be charged with a crime. I would also require a more robust reporting of the special counsel’s findings to both the majority and the minority leadership in Congress. And I would explicitly make the evidence underlying the special counsel’s findings, including the grand jury materials, available to the minority and majority leadership in both houses of Congress. I would do this to avoid the real risk we’re facing today, which is that the special prosecutor’s findings about the President could be suppressed by the Attorney General quite effectively. Congress has some tools to pry those materials out of the Attorney General’s hands, but efficacy of those tools is very much an open question, and Congress’s entitlement to access the report and the public’s entitlement to access the report are largely left to the discretion of the Attorney General under the current set-up. I think that is a potentially very dangerous situation. The best defense of the current regulations is that political pressure will force the Attorney General to release the special counsel’s findings when they are of intense public interest. But I would be much more confidence of this if the regulations themselves explicitly required publication of the special counsel’s report.

If a lot of people rally around the changes you suggest, what would the amendment process look like for these regulations?

The Attorney General has the authority to amend those regulations at any time, and he can do so on his own authority. But the new Attorney General, William Barr, has displayed no inclination to modify those regulations or to expand the public’s or Congress’s entitlement to the special prosecutor’s report beyond what is provided in the current regulations. In fact, at his confirmation hearing, he repeatedly indicated that his willingness to make the special prosecutor’s findings public or to make them available to Congress would be constrained by the existing Justice Department regulations, including the special counsel regulations but also a variety of other regulations that govern the confidentiality of internal prosecutorial documents and memoranda. So I think that the prospect of the Justice Department amending the current regulations under the current president’s watch is pretty low.

Congress could also step in and require various disclosures of the kind that I have just advocated by statute. That statute could be challenged in the courts, but I think it’s pretty clear that Congress has the authority to institute a robust set of disclosure requirements if it chooses to do so. I’m not holding my breath on that front either, though, because the Republican leadership of the Senate is unlikely to allow that proposal to come to a floor vote, even if it had the support of a majority of senators. Even in the unlikely event that both houses of Congress pass that sort of proposal, which has actually been drafted in the Senate, it would be subject to a presidential veto. It’s virtually impossible to imagine a two-thirds majority of both houses of Congress voting to override such a veto in these circumstances.

One thing I learned from your book is that special counsels have to comply with the legal opinions of the Office of Legal Counsel. I don’t mean to impugn the independence of lawyers in the OLC, but what stops a president from installing his own lackeys there to write opinions that stifle the special counsel’s mission?

Part of what prevents that is a long tradition of legal independence at the Department of Justice in general and at the Office of Legal Counsel in particular. Among other things, that tradition consists of a set of cultural norms which have been absorbed by the tenured civil servants, who constitute the vast majority of lawyers working in the Justice Department. Only the top level of the Justice Department, or any other federal department, consists of political appointees of the President. And those appointees have to work with a staff which in many cases will not be particularly loyal to any given administration but will be loyal to the longstanding cultural norms of their department. Any political appointee who is interested in pushing the envelope also has to think about the political costs of taking steps that suggest the President has something to hide.

Apart from “Prosecuting the President,” which books do you recommend for people who want to learn more about special prosecutors?

The memoir written by Richard Ben-Veniste and George Frampton of the Watergate task force, which is called “Stonewall,” is a really excellent inside account of the Watergate investigation.

“Final Days,” written by Washington Post reporters Bob Woodward and Carl Bernstein is a great account of the Watergate investigation from inside the White House. It’s much less famous than “All the President’s Men,” which recounts Woodward and Bernstein’s initial breaking of the Watergate story, but in many ways, I think “Final Days” is a more interesting, a more gripping, and a more dramatic book. It provides a great sense of the way a special prosecutor investigation affects decision-making in the executive branch. So those are two of the best. I also think that Ken Gormley’s biography of Archibald Cox, the first Watergate special prosecutor, is a really good one. Gormley’s book on Ken Starr’s investigation of Bill Clinton is another good one.

Benjamin Wittes’s book, “Starr: A Reassessment,” is also very good. It offers a revisionist portrait of Kenneth Starr, whose reputation was very badly tarnished at the end of the Watergate scandal. Wittes quite effectively demonstrates that many of the popular perceptions of Ken Starr at the end of the Clinton impeachment saga were overblown or otherwise inaccurate. He’s not by any means uncritical of Ken Starr but offers a really nuanced and intelligent take on the Ken Starr investigation, which serves as a useful corrective to the conventional historical narrative of that particular case.

But there really isn’t a whole lot written about special prosecutors for a general audience. And apart from Prosecuting the President, there is no other book taking a comprehensive look at the role of special prosecutors in American politics. This is really what motivated me to write the book.

You’re soon releasing another Supreme-Court-related book called “Rationing the Constitution.” What’s that about?

“Rationing the Constitution” is about Supreme Court decision-making in constitutional cases, and in particular, about the Court’s limited capacity. Its central thesis is that the Supreme Court is capable of deciding only a tiny fraction of the constitutional issues generated by the United States government in any given year. This limited capacity, I argue in the book, shapes and constrains the Court’s constitutional decision-making in profound ways. The most important is that it effectively requires the Court to defer the vast majority of constitutional questions to other institutional actors, such as the President and Congress, as well as state governments. For instance, on most questions involving the division of power between the federal and state governments, the Supreme Court is compelled to defer to Congress, even though it’s Congress’s own power that is at issue in these cases. Most questions about the permissibility of government discrimination of various kinds are left to the federal government and the states to answer, because the universe of possible unconstitutional discrimination is so much vaster than the Supreme Court could possibly review. The same goes for the boundaries of personal autonomy and individual liberty.

This, I think, is a really striking picture of the way that American constitutional law functions and the Supreme Court’s role in American society. It will certainly be counterintuitive for most Americans, who think of the Supreme Court as the ultimate authority on constitutional questions. But as I try to show in the book, my thesis is supported by ample historical evidence across many of the most important areas of constitutional law, including federalism, separation of powers, and individual rights. And that thesis has very important implications for some of the biggest and most controversial questions about the Supreme Court’s role in American democracy.

The biggest lesson or take-away from the book is that, in many of the cases where people might want the Supreme Court to do more, it simply lacks the capacity to do so. “Ought” implies “can.” To argue that the Supreme Court ought to do more implies that it can do more. But in fact, in many of the most important domains of American constitutional law, this is just not the case. For this reason, concerns about the Supreme Court taking over American democracy are wildly overblown. In any individual case, there might well be room for debate about whether the Court has overstepped its bounds or whether it should have left a particular question to the democratic process. But sweeping claims about judicial tyranny, which you hear from the Court’s critics on both ends of the political spectrum, have very little foundation in reality. The Court simply lacks the capacity to review more than a tiny fraction of the constitutional questions generated by the American government, making it effectively impossible for the Court to assert the kind of sweeping authority that some of its critics worry about.

The last big takeaway is that advocates of an expanded judicial role should be careful what they wish for. Often, when the Court does take on a bigger role, its limited capacity compels it to do so in the form of really crude categorical rules, which are at best a very rough proxy for the underlying constitutional principle that the Court is seeking to vindicate. Where this is the case, the Court may well do best by doing nothing at all.

It seems pretty straightforward why you wrote “Prosecuting the President,” as special counsels are on the forefront of the national conversation. Why did you want to write “Rationing the Constitution”?

It’s a culmination of the work that I’ve been doing as a law professor over the course of ten years. In a much more direct sense than “Prosecuting the President,” “Rationing the Constitution” grew out of my teaching. As I taught the first-year constitutional law course, it increasingly dawned on me what a large fraction of the most important constitutional questions the Supreme Court was deferring to other branches of government, and how small the Court was relative to the institutions whose output it is routinely called upon to review. I gradually put these ideas together and read more widely about the institutional structure of the Court. Through conversations with my students over a period of years, I began to develop the theoretical model of Supreme Court decision-making which I lay out in the book and apply to many of the most important questions in American constitutional law.

When does this book come out?

This book will be out from Harvard University Press in the end of April. It’s not quite as accessible as “Prosecuting the President” – it’s definitely an academic book. But I think some of your readers are probably big enough Supreme Court geeks (a term of approbation in my book!) that they might enjoy it.


Other interviews conducted by Anna Salvatore: UChicago law professor Justin Driver, SCOTUSblog founder Tom Goldstein, 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, Princeton professor Robert Georgeformer 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. 

On this day…

One hundred and forty years ago today, President Rutherford B. Hayes signed a law allowing women to argue cases before the Supreme Court. Scott Bomboy wrote a nice article about this for Constitution Daily, an offshoot blog of the National Constitution Center. Here’s a brief excerpt:

Suffragette, teacher, lawyer and presidential candidate Belva Lockwood championed [this] cause with Congress after the Supreme Court ruled that women – and specifically Lockwood – could not practice law before it. In November 1876, Chief Justice Morrison Waite curtly replied to Lockwood’s request to be admitted to the Supreme Court bar. “By the uniform practice of the Court from its organization to the present time, and by the fair construction of its rules, none but men are permitted to practice before it as attorneys and counselors,” Waite said. The Chief Justice added the Court wouldn’t change its mind unless “required by statute.”

Undaunted, Lockwood spent three years after her 1876 rejection lobbying Congress and former President Ulysses Grant (who had presented Lockwood with her law degree) for a law that would force the Supreme Court to recognize the right of women to appear before it. President Hayes signed “An act to relieve certain legal disabilities of women,” which read that “any woman who shall have been a member of the bar of the highest court of any State or Territory or of the Supreme Court of the District of Columbia for the space of three years, and shall have maintained a good standing before such court, and who shall be a person of good moral character, shall, on motion, and the production of such record, be admitted to practice before the Supreme Court of the United States.”

Shout-out to Ms. Silverman, a great history teacher at my school, for telling me about Mr. Bomboy’s article.

— Anna Salvatore

Friday, February 15, 2019

Preview: Kisor v. Wilkie

By Joe Hanlon

Earlier this week, while studying for an AP Government quiz, I began thinking about the power of our country’s executive branch. The subject of constant debate in today’s political climate, executive power has real effects on American life. In fact, one of the most contentious aspects of Justice Kavanaugh’s nomination was his take on presidential power: would he vote on the side of an expanded executive or place limits on the power of the presidency? Although this question can’t be answered yet, we will soon have a better understanding of another important executive power question; that is, how much leeway do federal agencies get when interpreting and enforcing their own regulations?

In the coming months, the Supreme Court will hear arguments in Kisor vs. Wilkie, a case arising from a veteran’s benefits claim. The veteran, James Kisor, is seeking compensation from the Department of Veterans Affairs because he got post-traumatic stress disorder in the Marines. He unsuccessfully sought benefits in 1983, so he tried again in 2006.

According to its regulations, the VA will reconsider one of its earlier decisions if the claimant files “relevant” documents that already existed, but were not used in the department’s earlier decision. Kisor’s claim was denied again in 2006 because the VA found that his documents were not relevant.

His case made its way to the United States Court of Appeals for the Federal Circuit, where the United States government relied on precedent in Auer vs. Robbins and Bowles vs. Seminole Rock. In both cases the Supreme Court ruled in favor of federal agencies, allowing the agencies to interpret their regulations how they liked so long as their interpretations were reasonable. Here the Federal Circuit ruled against Kisor because it considered the VA’s interpretation “reasonable.”

Now in front of the Supreme Court, Kisor is asking the justices to rule squarely on whether Auer deference should be scrapped. His case presents a major opportunity to overturn a pillar of the administrative state, since some conservative justices believe that the Constitution prohibits executive agencies from enjoying so much power. Indeed, Justice Kavanaugh wrote several opinions limiting federal agencies’ power while on the D.C. Circuit.

However, disdain for ‘the fourth branch’ —  the world of departments and agencies — is different from disdain for the  entire executive branch. In fact, many people who call for deregulation of federal agencies also advocate for the expansion of presidential power.

The Court’s decision in Kisor vs. Wilkie will be one of the most consequential of the term. Much like Weyerhaeuser, this case could lay the groundwork for major shifts in the canons of administrative law. Kisor argues, and many scholars agree, that if agencies continue having such wide deference in the interpretation of their rules and regulations, they will arbitrarily interpret texts to mean what they want them to mean. Opponents of this view stress that this has not been the case and may never be true. What is for certain, though, is that the justices granted this case for reason, meaning that Auer may be on the way out.

Thursday, February 7, 2019

Domineque Ray is a death row inmate in Alabama. Convicted of raping, robbing, and murdering a teenage girl in 1999, Ray was set to be executed today. About two weeks ago, he met with a prison official to discuss the terms of his execution. He asked, among other things, that a Muslim imam be present with him in the execution chamber for spiritual guidance. The prison official explained that only a Christian chaplain can witness executions from inside the chamber. Inmates can bring along their own witnesses, including a spiritual adviser if they so choose, but these extra guests must stay in a sealed-off room.

Ray argued that the prison’s policy was unconstitutional under the Establishment Clause of the First Amendment, which says that the government can’t officially prefer one religion over another. Here, Ray asserted, Alabama was preferring Christianity over Islam. The Court of Appeals for the Eleventh Circuit held that his argument was “substantially likely to succeed on the merits,” and it temporarily suspended his execution.

Tonight the conservative wing of the Supreme Court voided the Eleventh Circuit’s suspension. The Court held that Ray had waited too long to seek relief, which, in Alabama’s view, should have happened when his execution date was set in November. He will probably be executed very soon.

In response, Justice Kagan penned her most full-throated dissent in a religious freedom case since Town of Greece v. Galloway (2014). Joined by Justices Breyer, Ginsburg, and Sotomayor, she called the majority’s decision “profoundly wrong” for a couple reasons. Here’s a (cleaned up) excerpt:

“The clearest command of the Establishment clause,” this Court has held, “is that one religious denomination cannot be preferred over another” (Larson v. Valente). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate of a different religion – whether Islam, Judaism, or another other – he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.

Usually, state policies that seem to prefer one religion over another must pass strict scrutiny. If the policy isn’t “justified by a compelling government interest” and narrowly tailored to achieve that interest, then it must fail under Larson v. Valente. Justice Kagan found that Alabama’s policy belonged in this category, and she expressed skepticism about the state’s rationale for excluding imams from the execution chamber.

Her second point of disagreement is that Ray was justified in seeking relief so soon before the execution.

The State contends that Ray should have known to bring his claim earlier, when his execution date was set on November 6. But the relevant statute would not have placed Ray on notice that the prison would deny his request. To the contrary, that statute provides that both the chaplain of the prison and the inmate’s spiritual adviser of choice ‘may be present at the execution’ (Alabama Code). It makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear).

Here is the link to her full dissent, from which I copied-and-pasted quite heavily. You may also be interested in the Court’s other order tonight in June Medical Services v. Gee, where the four more liberal justices plus Chief Justice Roberts prevented a restrictive Louisiana abortion law from going into effect. Justice Kavanaugh dissented from their decision.

— Anna Salvatore