Event announcement

By on Sep 19, 2016 at 10:55 am

On October 13 at 12 p.m., the State & Local Legal Center will host a webinar on cases for the next Term that involve state and local government. Speakers will include Misha Tseytlin, Deepak Gupta, and this blog’s Amy Howe. More information is available on the center’s website.

 
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Monday round-up

By on Sep 19, 2016 at 8:03 am

The intersection between the Supreme Court and the upcoming elections continues to take center stage. In The Hill, Alexander Bolton reports that if Hillary Clinton is elected in November, her choice to fill the vacancy on the Court could affect the political fate of congressional Democrats, noting that “Democrats facing tough races in the next cycle don’t want Clinton” “to spend her political capital on a messy fight over the court — and the hot-button social issues under its jurisdiction — during her first 100 days in office.” Chris Geidner at Buzzfeed notes that the Court has fallen “to the wayside” as an election issue, and outlines occasions over the next few months that might bring it back into the spotlight.

Coverage of the Senate’s refusal to act on the nomination of Judge Merrick Garland comes from Lydia Wheeler in The Hill, who reports that “Senate Democrats are blasting their Republican colleagues for not only blocking the confirmation of Supreme Court nominee Merrick Garland, but also 53 other judges in the lower courts.” Ken Jost at Jost on Justice also weighs in on the Senate’s refusal to act on judicial nominations, noting that “Garland’s supporters rallied this month in front of the Supreme Court urging the Senate to ‘do its job,’” but that to the detriment of “the short-staffed federal courts, Garland is only one of the victims of the Senate’s Republican leadership’s decision to turn deaf ears to the plea.” Additional commentary on the confirmation issue comes from LeRoy Goldman at BlueRidgeNow.com, who argues that if Democrats regain control of the Senate in November under the leadership of Senator Chuck Schumer, they may employ the “nuclear option” to muscle though Supreme Court nominees should Hillary Clinton be elected; he argues that “Hillary Clinton will have everything to gain and nothing to lose if Schumer acquiesces to the pressure and the temptation to further transmogrify long-standing Senate tradition and procedure by pulling the nuclear trigger again.”

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Petition of the day

By on Sep 16, 2016 at 11:19 pm

The petition of the day is:

16-240

Issue: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. His new book, The Constitution Today, contains much more material on several of this essay’s themes: the constitutional wrongness of the exclusionary rule, the principled power of originalism, the pending Supreme Court vacancy, and the complex legacy of Antonin Scalia.

“You despise me, don’t you?” simpers Peter Lorre’s character, Signor Ugarte, to Rick Blaine, played by Humphrey Bogart. Bogie’s blunt response in this early scene from Casablanca remains a great line in a film filled with great lines: “If I gave you any thought I probably would.”

Think of the modern Supreme Court as Bogart, and the exclusionary rule as Lorre. Although the Court excludes evidence all the time, a Court majority probably despises the exclusionary rule while almost never thinking about it. In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion. But in almost none of these cases was the exclusionary rule as such at issue. Rather, in these cases the Court granted review, and the Justices opined, only on the scope of the Fourth Amendment right that underlies the rule. But whenever the modern Court has squarely focused on the exclusionary rule itself – giving express thought to whether the rule’s contours should be widened or narrowed – the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.

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Orin S. Kerr is a Professor at George Washington University Law School, where he teaches criminal law and procedure. His scholarly work focuses on the Fourth Amendment and computer-related crimes.

Justice Antonin Scalia was a strong opponent of the Fourth Amendment exclusionary rule. When the Court heard a case about its scope, Scalia’s vote was easy to predict. Scalia took the government’s side every time. His votes made him part of a conservative majority that consistently chipped away at the exclusionary rule over Scalia’s thirty years on the Court. Scalia’s death, and the possibility that he will be replaced by a very different Justice, raises the possibility that further chipping away may now stall – and may, over time, be reversed.

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Friday round-up

By on Sep 16, 2016 at 8:27 am

Coverage of the Court again centered on the prospects for filling the vacancy caused by the death of Justice Antonin Scalia. Ben Walsh and Ryan Grim reported yesterday in The Huffington Post that Donald Trump is seriously considering nominating venture capitalist and billionaire Peter Thiel to the Court should Trump win in November; representatives of both Trump and Thiel denied the report. Additional coverage comes from Dahlia Lithwick at Slate and Caroline Bankoff at New York.

Mike Dorning and Greg Stohr at Bloomberg report that in a radio interview yesterday, Hillary Clinton declared that “she wouldn’t be bound by President Barack Obama’s nomination of Merrick Garland to the Supreme Court, hinting that she would consider a bolder choice if she takes office in January with the seat still unfilled.” At Law.com (subscription required), Zoe Tillman surveys the factors potentially influencing prospective nominations to the Supreme Court and other federal benches by the presidential candidates; she remarks that the “courts have been a flashpoint in this election, more so than usual because of congressional gridlock on vacancies, the fight over the late Justice Antonin Scalia’s seat, and Trump’s invocation of the Supreme Court in trying to persuade moderate Republicans to support him.” Steven Mazie comments in The Economist on the significant consequences even one Supreme Court appointment will have for the Court’s constitutional jurisprudence over the next few years; although “the justices seem stuck in standby mode” and the “docket for their upcoming term is looking wan,” he asserts, disputes “over presidential power, administrative leeway, freedom of speech, abortion, race, religion and discrimination against gays and lesbians—to name a few—are sure to arrive at the justices’ doorsteps.”

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Petition of the day

By on Sep 15, 2016 at 11:37 pm

The petition of the day is:

16-206

Issue: Whether the filing of a putative class action serves to suspend as to putative class members a period of repose such as the three-year period applicable to claims brought under Section 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78n(a).

Dawn Johnsen is Walter W. Foskett Professor of Law at Indiana University Maurer School of Law.

The effect Justice Antonin Scalia’s eventual successor will have on women’s reproductive rights depends on the outcome of November’s presidential election – an election, of course, that also will determine any other Supreme Court vacancies. Since Justice Scalia joined the Supreme Court in 1986, the dominant reproductive rights question has been straightforward: will the Court uphold or overrule Roe v. Wade? That remains today the vitally important, correct starting point. But that stark, basic question would be followed by more complex and uncertain ones if the election brings Justices who would not follow Justice Scalia’s lead in opposing Roe or its progeny – which notably includes Lawrence v. Texas, Windsor v. United States and Obergefell v. Hodges, five-four decisions that build on Roe’s constitutional understandings in the context of LGBTQ protections.

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James Bopp, Jr., and Richard E. Coleson are attorneys with The Bopp Law Firm, PC.

The topic is how Supreme Court jurisprudence on “reproductive rights” might change if a “conservative nominee” succeeds Justice Antonin Scalia. We focus on abortion jurisprudence because that was at issue in Whole Woman’s Health v. Heller­stedt and other “reproductive rights” are less litigated. We understand “conservative” to mean having Scalia’s judicial philosophy.

While current Court members remain and the “undue burden” test reigns, a conservative successor would change the outcome of an abortion case where Justice Anthony Kennedy (i) sees no undue burden and (ii) is the swing vote. For example, in Stenberg v. Carhart, Kennedy saw no undue burden but was not the swing vote, being with Scalia in the five-four dissent against striking Nebraska’s partial-birth-abortion ban. In Gonzales v. Carhart, Kennedy saw no undue burden and was the swing vote, so he wrote a five-four opinion upholding a federal partial-birth-abortion ban. In Hellerstedt, Kennedy saw an undue burden and was the swing vote, so he joined a five-three opinion striking Texas’s regulation of abortionists and abortion clinics.

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Thursday round-up

By on Sep 15, 2016 at 8:42 am

Briefly:

  • In The National Law Journal (subscription or registration required), Tony Mauro reports that “Supreme Court Justice Ruth Bader Ginsburg on Wednesday chided law firms for not taking more steps to improve the balance between home and work for lawyers with young children.”
  • Georgetown University Law Center’s Supreme Court Institute has released its preview of the Court’s argument docket for October Term 2016.
  • In Supreme Court Brief (subscription required), Tony Mauro remembers the late Frank Wagner, long-time “reporter of decisions” at the Supreme Court, who “put the justices’ decisions into publishable form for more than 23 years and in 2000 helped to put them online.”
  • In The National Law Journal (subscription or registration required), Tony Mauro discusses how the death of Justice Scalia has slowed the Court’s “pro-business momentum” in business-related areas of the law, such as arbitration and class actions, and how his replacement could alter the legal landscape in those areas.
  • In Cato at Liberty, Trevor Burrus and David McDonald argue that the Court should grant review in Foster v. Vilsack, which involves the Department of Agriculture’s interpretation of what constitutes a protected wetland, noting that the case offers the Court an opportunity to “make it clear to administrative agencies that they cannot avoid judicial review by refusing to promulgate clear, unambiguous regulations.”

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