Archive for the ‘Supreme Court’ Category

Ricci: Color-Blind Standards in a Race Conscious Society?

posted by Michael Zimmer

While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.

The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:

“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”

The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:

“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed.  (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read the rest of this post »

  November 20, 2009 at 8:49 am   Posted in: Civil Rights, Constitutional Law, Employment Law, Supreme Court   Print This Post   One Comment

Ricci and Briscoe as Disparate Impact Cases

posted by Michael Zimmer

UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

Read the rest of this post »

  November 17, 2009 at 4:58 pm   Posted in: Civil Rights, Employment Law, Race, Supreme Court   Print This Post   10 Comments

The Roberts Court (Thus Far) and the Rule of Lenity

posted by Anita Krishnakumar

In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes. 

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four¹ of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three² of the cases; Justice Souter invoked or joined an opinion invoking the rule in two³ of the cases, while Justices Breyer, Roberts, and Thomas did so only once.⁴ Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot:  Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?

————————————————————————————————-

1.  See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2.  See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3.  See Santos (joined plurality), Rodriquez (authored dissent).

4.  Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.

  November 15, 2009 at 1:37 pm   Posted in: Supreme Court, Uncategorized   Print This Post   One Comment

Can There Be An “Undeclared” Canon of Statutory Interpretation?

posted by Anita Krishnakumar

How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed.  Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter.  And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism. Read the rest of this post »

  November 11, 2009 at 5:26 pm   Posted in: Supreme Court, Uncategorized   Print This Post   2 Comments

The Passive Voice in Statutory Interpretation

posted by Anita Krishnakumar

Thanks to Dan et al. for the opportunity to guest-blog this month.  For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999).  Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Defendant Jones had participated in a carjacking with two other men.  While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head.   The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death).  The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119.  If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.

In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).”  While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors.   This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.

Read the rest of this post »

  November 2, 2009 at 1:38 pm   Posted in: Criminal Law, Supreme Court   Print This Post   7 Comments

Me, Justice Stevens, and the Dublin Marathon

posted by Spencer Waller

Here is a sentence I never expected to write. So there I was on Monday in the middle of running the Dublin Marathon when I decided to listen on my Ipod to a C-Span podcast interview with Justice Stevens. I had traveled to Dublin to run the actual Dublin marathon and to co-host Antitrust Marathon IV: Marathon with Authority, a round table discussion co-hosted with the British Institute of International and Comparative Law and the Irish Competition Authority.

Around Mile 11, I was hurting and turned from a combination of Irish rock and random songs to some pod casts. After some short New York Times and NPR pod casts, I remembered that I had downloaded a series of C-Span interviews with the current Justices and Sandra Day O’Connor.

I have a special fondness for Justice Stevens. We are both Chicagoans, Cub Fans, and Northwestern Law grads. More improbably, we even had the same antitrust professor (James Rahl) at Northwestern, albeit about 35 years apart. That plus the fact he was primarily an antitrust litigator before going on the bench was enough to get me to devote the next 30 some minutes, and about 3 miles, to the Stevens interview.

A lot of it was a fluffy discussion of his chambers and personal history. But mixed among the fluff and the questions for non-lawyers (What is certiorari?), there were a handful of interesting tidbits. Justice Stevens talked about the reasons and impact of not participating in the cert pool, the importance of writing his own first drafts, and his interest in having the court hear a few more cases than its current docket. There are no smoking guns or shocking revelations, but Justice Stevens does mention the need for Justices from diverse legal backgrounds, such as veterans and litigators, as an important mix for the Court to have on the bench. Justice Stevens is of course both and as far as I know the only current Justice to actually have made his living as a litigator.

The main thing I came away with was the genuine niceness of the good Justice which was my impression from the only time I ever met him. In 1993, I taught in a summer program in Innsbruck, Austria where Justice Stevens was lecturing. Instead of staying for the three days as promised, he stayed and lectured the entire week and interacted warmly with the students and the rest of the faculty. At one point, a student asked him to sign the packet of course materials which he did after class. Because he did not want to play favorites, he then stayed and patiently signed for more than a hundred students.

In the pod cast interview, Stevens demurred on picking a most important or favorite case. But when asked about a most memorable experience, he didn’t hesitate and proudly mentioned throwing out the first pitch at Wrigley Field before a Cubs game at the age of 85.

With that, I grinned, quickened my pace a bit, and headed up the next of an endless series of hills on my way around Dublin on a surprisingly warm and sunny late October day.

I have not listened to the rest of the interviews. But if anyone else has, please post if there are particularly revealing or interesting moments.

  October 28, 2009 at 2:15 pm  Tags: Antitrust, baseball, Chicago Cubs, Dublin, John Paul Stevens, marathon, Supreme Court, Wrigley Field  Posted in: Antitrust, Interviews, Supreme Court   Print This Post   6 Comments

The Yale Law Journal Online: Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech

posted by Yale Law Journal

 

The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP.  Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.

  October 26, 2009 at 1:30 pm   Posted in: Corporate Law, Law Rev (Yale), Law Rev Forum, Media Law, Politics, Supreme Court   Print This Post   No Comments

The Civil Procedure, Civil Rights, Class Action Connection to the Chicago Olympic Bid

posted by Spencer Waller

By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

  October 6, 2009 at 9:55 am  Tags: Chicago, Civil Procedure, Civil Rights, class actions, Constitutional Law, Olympics  Posted in: Civil Procedure, Civil Rights, Constitutional Law, Culture, History of Law, Race, Supreme Court   Print This Post   One Comment

Mainstreaming Accountability

posted by Dave Hoffman

Ninth Circuit Judge Milan Smith, who just rejected John Ashcroft’s claim of qualified immunity in Abdullah Al-Kid v. John Ashcroft, wrote that the Bush Administration’s alleged practice of abusing of the material witness statute was “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Notably, Judge Smith was quoted last year saying the following about the Ninth Circuit:

[Smith] credits this “mainstreaming” [evidenced in a lower reversal rate] of the Circuit to two main factors: the reduction in influence by Carter appointees and the changing dynamic of the confirmation process.

“It’s very rare anymore that you’re [going to] have three Carter judges sitting together [on a panel],” said Smith.

Smith believes the current composition of the Circuit explains the reduction in extreme opinions: “We have 27 active judges and 22 senior judges [on the Circuit] . . . . Of those, Carter appointed 15 in total.”
Of the 15 Carter appointees, two have passed away, one has retired completely from the court, and nine have moved into senior status, a form of semi-retirement whereby a judge vacates his seat and hears a diminished caseload but keeps his full salary. Almost every Carter appointee is now over the age of 70, and Smith stated that it will not be long before the remainder of them “leave this vale of tears.” Only three Carter appointees remain active, including former Chief Judge Mary M. Schroeder and well-known Judge Stephen Reinhardt. According to Smith, the less critical atmosphere which allowed the appointment of these more strident and ideological judges changed during the Reagan administration.

I wonder how the Carter-holdouts felt about this set of comments when they appeared?  Maybe Judge Smith was misquoted.  But if this article represents his thought, it’s pretty clear that he seems himself as a pragmatic “mainstream” conservative, who wants to be seen as reasoanble and apolitical, making his evident annoyance with the government’s position in the Ashcroft case all that much more remarkable.

  September 5, 2009 at 2:41 pm   Posted in: Privacy (National Security), Supreme Court   Print This Post   No Comments

Conference: Important Questions of Federal Law—Assessing the Supreme Court’s Case Selection Process

posted by Yale Law Journal

The Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online, the forthcoming online platform of The Yale Law Journal, will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process, on September 18, 2009, at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process. The conference is made possible by the generous support of the Oscar M. Ruebhausen Fund. Practicing attorneys, judges, academics, and students are invited to attend. There is no charge for the conference, but space is limited, so all attendees must pre-register here. Breakfast and refreshments will be provided. If you are unable to attend, podcasts of conference sessions and downloadable papers from the panelists will be made available by Yale Law School’s main website. Select papers will also be published by The Yale Law Journal Online. Information on the conference can also be downloaded by clicking here.  For more information on The Yale Law Journal Online and the conference, please contact YLJ Online Editor Kathleen Claussen here.

  August 31, 2009 at 7:14 pm   Posted in: Conferences, Constitutional Law, Law Rev (Yale), Law Rev Forum, Supreme Court   Print This Post   No Comments

Unilateral Disarmament

posted by Frank Pasquale

David Fontana and Micah Schwartzman complain in TNR that President Obama has failed to appoint young judges to federal appeals courts:

The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.

I think Fontana and Schwartzman are right that older appointees are a mistake for the Democratic party, even though they are probably better for the nation as a whole. (I favor more seasoned judges, particularly as life spans lengthen.)

This is one of many examples where Democrats are trapped in a difficult dilemma by Bush administration practices. If they appoint older judges, they let the circuit courts’ current rightward skew persist longer. But if they retaliate with relative youngsters, we lose the experience and insight that only age can bring to the courts. Same goes for executive appointments: many transparently political appointees of the Bush era have “burrowed in” to permanent positions at agencies, and balance probably requires similar strategies close to the end of the Obama administration — even if long-serving bureaucrats could do a better job in such positions.

Similar dynamics affect government transparency policies. For example, the Brennan Center recently “gave the Obama administration an F for its use of State Secrets” and has criticized it for continuing several Bush era policies of opacity. Here, again, a change would probably be for the better — but we all know that if a terrorist attack occurred, Dick Cheney’s acolytes would be on TV the next day declaring that Obama’s openness helped cause the carnage.

The health reform debate provides a final example. Bush’s plan for Medicare Part D was essentially an unfunded benefit. Rather than take on the tough task of real cost containment, he and the Republican Congress delegated it to fragmented private insurers with little power to make it happen. Conservatives now complain about a dodgy cost curve in Obama’s plans, but denounce virtually every proposed effort for cost containment as “socialized medicine.” Obama’s political fortunes probably rise if he follows the Bush path, but the country will be better off if he and Congress embrace fiscal responsibility.

In light of these examples, I think Fontana and Schwartzman have shed light on a larger phenomenon of the dangers of unilateral disarmament in an increasingly partisan age. If rules of cooperation like the filibuster exist at any less a status than constitutional norm, perhaps the Dems should think deeply about the proper deployment of the “constitutional option” pioneered by those on the other side of the aisle.

  July 20, 2009 at 8:37 pm   Posted in: Politics, Privacy, Supreme Court   Print This Post   2 Comments

In Favor of Wise Latinas

posted by Kaimipono D. Wenger

It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.

Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population! Read the rest of this post »

  July 15, 2009 at 12:06 pm  Tags: Sotomayor, Supreme Court  Posted in: Supreme Court   Print This Post   25 Comments

Truthseeking and Criminal Procedure in the Supreme Court’s Last Term

posted by Jenia Turner

Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.

  July 2, 2009 at 7:55 pm  Tags: Osborne and DNA  Posted in: Criminal Procedure, International & Comparative Law, Supreme Court, Uncategorized   Print This Post   8 Comments

CJRA Records Before 1998?

posted by Dave Hoffman

Though open government is a priority of the administration, the court system is taking a decidedly different, slower, path.  Here’s one example.  I’d like to collect the CJRA Reports from the Southern District of New York from 1992-1998, when Judge Sotomayor was sitting on that bench. Those Reports would tell us how many motions “pending” Judge Sotomayor had at six month intervals — i.e., how efficient & quick she was in dispensing justice.  Unlike reversal rates, measures of activism based on hierarchical standards,  and citation studies, CJRA motion  statistics would shed light on Judge Sotomayor’s time as a district court judge, and also have the virtue of being easy to translate for the public.  Some judges allow motions to sit on their dockets. Others don’t.  (Discounting for the first year or two on the bench, as many new judges are given a biased set of cases by their colleagues – the dogs of the other judges’ dockets.)

Unfortunately, PACER records CJRA information from 1998 onward, and I can’t seem to figure out where (online or off) the old reports are housed.

Any ideas?

  June 23, 2009 at 5:11 pm   Posted in: Current Events, Government Secrecy, Supreme Court   Print This Post   No Comments

Profile of SCOTUS Blog’s Tom Goldstein

posted by Daniel Solove

Today’s Washington Post has an interesting profile of SCOTUSBlog’s Tom Goldstein, a partner at Akin Gump and founder of SCOTUSBlog. From the article:

What makes the brash and balding 38-year-old such a hot media property is Scotusblog.com, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like “the world’s biggest idiot. I was out there on a limb.”

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site’s host. Despite the unorthodox arrangement, Goldstein says his staff, which includes veteran Supreme Court reporter Lyle Denniston, has complete independence. “Lyle could write that our clients are completely insane and evil and there’d be nothing to stop him,” Goldstein says in his 12th-floor office with a sweeping view of the Washington Monument. . . .

A graduate of American University’s law school, Goldstein founded a small firm — soon joined by his wife — in the third bedroom of their Northwest Washington home. He pursued his goal, to become a Supreme Court practitioner, by cold-calling lawyers in cases that might be headed for high court review. Goldstein was denigrated by more credentialed members of the bar as an overeager ambulance chaser, but the strategy worked: He has argued 21 cases before the Supreme Court. (Goldstein still finances his old firm, which includes his wife and remains at his home, now in Chevy Chase, a few doors down from Chief Justice John Roberts. The firm is an Akin Gump subcontractor.)

White House officials had asked to consult Goldstein on the court vacancy, but by the time he returned from a weekend in Paris, Obama had made his choice. Determined not to miss the action, Goldstein canceled a meeting in Los Angeles with a top producer about a reality series based on his life, the rights to which were bought by Sony Pictures Television. (”They must be smoking crack,” Goldstein says.) A poker fanatic who plays with pots as large as $100,000, he also delayed plans to compete in the World Series of Poker in Las Vegas.

For more, read the article.

  June 1, 2009 at 8:32 am   Posted in: Blogging, Constitutional Law, Supreme Court   Print This Post   No Comments

The Yale Law Journal Online: Sonia Sotomayor’s Note

posted by Yale Law Journal

The Yale Law Journal Online* is pleased to present the Note published by Sonia Sotomayor in Volume 88 (1979).  Judge Sotomayor, who has been nominated by President Obama to the Supreme Court of the United States, was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal.   If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman.  Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75.

Judge Sotomayor’s piece, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, analyzed issues regarding Puerto Rico’s ability to maintain rights to its seabed if it pursued statehood.   The Note can be accessed here.

*Effective Fall 2009, The Pocket Part will be integrated into The Yale Law Journal Online, the new online companion and platform of the Journal.  Further details will be forthcoming.

  June 1, 2009 at 7:07 am   Posted in: Law Rev (Yale), Law Rev Forum, Supreme Court   Print This Post   No Comments

Politicians and Justices

posted by Gerard Magliocca

As I’m stuck at the airport, I think it’s blogging time.  (I guess that that’s the legal equivalent of “clobbering time” in the Fantastic Four.)

Every time there is a Supreme Court vacancy, lots of thoughtful people say, “Gee, what the Court really needs is someone with major electoral experience.  A Governor or a Senator.”  But it never happens. Indeed, you have to go back to Earl Warren to find that sort of nominee.  Why does this idea always flame out (no pun intended)?

Read the rest of this post »

  May 27, 2009 at 11:39 am   Posted in: Supreme Court   Print This Post   One Comment

Some Supreme Court Trivia

posted by Gerard Magliocca

The White House says that Judge Sotomayor has more experience on the federal bench than any Supreme Court nominee in the last one hundred years.  Does anyone know who the last nominee with more was?  (Holmes was on the Massachusetts Supreme Judicial Court for twenty years before TR picked him, but I guess they are referring to someone else.)

  May 26, 2009 at 6:12 pm   Posted in: Supreme Court, Uncategorized   Print This Post   6 Comments

What Should a Judge’s Reversal Rate Be?

posted by Dave Hoffman

Via TPM, I found that critics of Judge Sotomayor have made some hay of her reversal rate in the Supreme Court (50% of 6 cases heard).   Though I like data more than the next guy, I will freely admit that this use of quantitative empirical legal studies is demonstrably silly.  I’m going to try to demonstrate to you in this post that a reversal rate of fifty percent is exactly what the state-of-science would predict to be ordinary [or even below average], and a rate of zero (which some might think of as emblematic of a law-abiding judge) tells you that the judge in question might be departing quite severely from precedent.

Let’s start with the obvious.  Most appellate court opinions aren’t subject to a cert petition; almost no cert petitions are granted; only some granted cert petitions end up in full argument and a written opinion by the Supreme Court.  Throughout this long process, parties may settle their cases and exit the system.  They may do soduring briefing before the appellate court or after argument (with some limitations), they may settle after an opinion issues but before a cert petitition is filed, and they may settle thereafter until the Court rules (again, with some limitations based on mootness doctrine).  This potential for settlement after the appellate court issues its mandate creates selection effects.

Though such selection effects are likely less predictable & more dominated by wealth & party characteristics than the immense selection that occurs in the district court, it remains that case that the universe of cases that survive the decision to appeal and the decision to grant certiorari is significantly winnowed.  That winnowing produces a distinct set of cases.   Cases before the Supreme Court contain legal & factual issues more finely balanced than those that issued from the courts below.  To put it another way, cases are argued (usually) because the parties both believe they are going to win.  If the parties are rational & wealth neutral, an assumption that sometimes holds, we should expect that the resulting decisions from the Court will be a bit of a random walk.  (See my earlier post on bankruptcy scholarship for more on this hobby-horse of mine.  Also, note that much of this applies to civil cases, not criminal cases, which create unique settlement patterns.  The actual rate of reversal, over all cases, ranges between 60 and 75%.)

What’s the upshot?  An appellate judge’s “reversal statistic” tells you less than you think about the “merits” of her opinions, or even how such opinions stacked up against governing Supreme Court precedent.  Ironically, when a judge significantly departs from precedent either for or against the plaintiff, settlement may be particularly likely, as the parties’ chances above are quite clear: thus a judge who convinces her colleagues to depart from precedent often will almost never be reviewed or reversed by the Supreme Court. Cases where the judge stuck with precedent, by contrast, may face appeal and reversal, especially if the precedent shifted due to ideological change on the Court itself.

There’s lots of good work on this, much of it recent.  And what it teaches me is that we have no idea what an appropriate reversal rate for an appellate judge ought to be.  It also suggests that there is no way to evaluate the quality of an appellate judge’s work except to read her opinions and decide for yourself what you think of them.  This is a clear instance where statistics mislead.

  May 26, 2009 at 3:20 pm   Posted in: Empirical Analysis of Law, Supreme Court   Print This Post   5 Comments

The Best Post about Sotomayor That You’ll Read This Week

posted by Dave Hoffman

Is by Paul Horwitz.  Seriously.  Best part?

“[T]here is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all — unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I’ve already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on.”

Would write more, but am listening to people chat during a background briefing about Sotomayor for bloggers. And the band plays on.

  May 26, 2009 at 10:30 am   Posted in: Supreme Court   Print This Post   No Comments

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