Category: Supreme Court

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RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

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7 Member Supreme Court Votes 4-1 to Suspend One of its Own

This is ugly.  PA Supreme Court has voted to suspend one of its members for various infractions, including the dissemination of pornographic emails from work computers.  The suspension order issued per curium, but apparently only attracted the votes of 4 of 7 possible justices.  One justice, dissenting, would have sent the matter to a judicial conduct board. The suspended justice didn’t vote, and neither did a justice who just accused the suspended justice of trying to blackmail him over yet more pornographic emails.  One of the four votes comes from a justice appointed by Pennsylvania’s governor, to replace another justice who had been suspended after being indicted.

Still with me? Here’s where the fun starts.  Pennsylvania’s Chief Justice, who has been long-involved in a heated fight with the newly suspended justice over control over Philadelphia’s court system, concurred in the per curium opinion. His “concurring statement,” destined for the headlines, contains the following astonishing paragraph:

wowThat, friends, is what it means to vent your spleen.

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“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

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Marian Anderson & Justice Black, April 9, 1939

Harold Ickes & Marian Anderson

Harold Ickes & Marian Anderson

I was just watching a WETA segment on our national parks when I came upon the Marian Anderson story and how the Daughters of the American Revolution refused to let her perform at Constitution Hall, which they owned.

Upset by the incident, Eleanor Roosevelt urged Harold Ickes (the former president of the Chicago NAACP & then Secretary of the Interior) to arrange for the opera singer to perform at the Lincoln Memorial. Ms. Anderson performed there on Easter Sunday, April 9, 1939, to a crowd of 75,000 admiring onlookers. The event was also broadcast on national radio.

Of course, all of this and more are well known. What is far less known is that invitations were sent out to the all of the Justices of the Supreme Court.  (See Gerald T. Dunne, Hugo Black & the Judicial Revolution 304 (1977)). One Justice accepted, which brings me back to my public television story.

Justice Hugo Black, 9 April 1939

Justice Hugo Black, 9 April 1939

If you go to the YouTube clip of the Anderson concert, you will see Justice Black in the audience (1 minute & 19 seconds into it).

By that time in 1939 Justice Black had been on the Court for some 20 months — this 15 years before Brown. Most likely, word of Justice Hugo Black’s solo appearance made its way to Alabama, his home state. And yet, he was there (see pic) and the newsreels captured it all, too.

For an account of the concert and its historical significance, see Raymond Arsenault, The Sound of Freedom: Marian Anderson, the Lincoln Memorial, & the Concert that Awakened America (2009).

 

 

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F.F. — Make of him what you will, but . . .

Felix Frankfurter

Felix Frankfurter

I want to recommend a relatively new article in the Journal of Supreme Court History. It is impressively researched, commendably thoughtful, and refreshingly balanced. Before doing so, however, permit me to say a few prefatory words.

It is hard to be fair when writing of those with whom we disagree, and harder still when we dislike their personal manner. Arrogant, argumentative, and devious – these are not the words that fair-minded scholars like to use unless the fit is fair. All of which takes us back in time to this man: Felix Frankfurter (1882-1965).

What to make of him?

As a Supreme Court Justice he was, in Mel Urofsky’s words, “a divisive figure whose jurisprudential philosophy is all but ignored today.” Others have been even less kind in their assessment of the temperament and jurisprudence of the Justice from Vienna. While Cass Sunstein has recently labored to revive respect for Justice Frankfurter and his judicial opinions, that effort may prove Sisyphean (save, perhaps, in a few discrete areas involving federal jurisdiction).

Still, there was more to Felix Frankfurter than the life he led on the Court between 1939 and 1962. The trajectory of his career (fueled by hard work, ambition, and brilliance) is an immigrant-come-to-America success story at its best. His work – first with Louis Brandeis and then on his own – to advance the cause of fair and humane labor practices exemplifies the Progressive movement in its glory. Then there was the role he played early on in helping to launch the ACLU. With a mix of courage and insight, he later called for a retrial for Nicola Sacco and Bartolomeo Vanzetti by way of an impressive lawyer-like article he published in the Atlantic in 1927; the article was thereafter expanded into a small book. And, of course, there is more, much more, which brings me back to that article I alluded to earlier.

Sujit Raman

Sujit Raman

Sujit Raman (the chief appellate lawyer in Maryland’s U.S. Attorney’s office) has just published an engaging and highly informative article. Its title: “Felix Frankfurter and His Protégés: Re-examining the ‘Happy Hot Dogs.’” It captures Felix in all his complexity and does so with objective nuance. With skilled brevity Raman also sketches the story of the Jewish immigrant’s struggle to assimilate, the Harvard Law student’s meritocratic success, the progressive’s desire to improve government when he went to work for Henry Stimson (first in New York and then in Washington, D.C), and then the Harvard professor’s cultivation of the best and brightest, whom he invited to his Sunday teas.

Above all, Sujit Raman’s real story is about Felix Frankfurter’s “greatest legacy,” namely, the “legions of students he trained and nurtured at the Harvard Law School, . . . who, in their own right, shaped the age in which they lived.” Consistent with that objective, Frankfurter’s “avowed intent as a professor was to instill in his students an interest in public service, and from his earliest days, he began collecting recruits for his crusade.” In time, they would come to be known as Frankfurter’s “Happy Hot Dogs” as Hugh Samuel Johnson tagged them.MTE5NTU2MzE2MjE5NDc1NDY3

Could he be snobbish? Yes. Could he be petty? Yes. Spiteful? Yes. Did he delight in manipulating matters from unseen sidelines? Yes again.

Clearly, F.F. had his psychological warts. Yet, when one steps back and beholds the man and this patch of his life work at a detached distance, he stands rather tall. Why?

Now, to cut to the chase: “Frankfurter was one of the New Deal’s intellectual architects as well as one of its most accomplished draftsmen of policy – yet he had no legislative portfolio or any official position in the Roosevelt Administration.” Moreover, adds Raman, “Frankfurter was the New Deal’s principal recruiting agent. He placed his protégés in all levels of government, and consequently his vision was carried forth, albeit indirectly, by his able lieutenants.” In sum, “the New Deal was in many ways the embodiment and culmination of Frankfurter’s life work.”

James Landis

James Landis

In the span of 28 pages (buttressed by 127 scholarly endnotes), Sujit Raman fills in many of the blanks in the Professor-and-the-New-Deal story. While he is cautious not to exaggerate Frankfurter’s role and influence, Raman’s account makes it difficult to deny the remarkable magnitude of Frankfurter’s unique impact on public law and its operation at a crucial stage in our legal history.

True, the “Happy Hot Dogs” story has been told before and from a variety of perspectives (see, e.g.,  here and here). Even so, Mr. Raman does what others before him have not quite done: he tells the story in a concise yet authoritative way and with enough panache to draw the reader back in history for glimpses into the exciting world of F.F. and his adept protégés – the likes of Thomas G. Corcoran (video here), Benjamin V. CohenJames M. Landis, David Lilienthal, and Charles Wyzanski, among others. They were all part of Frankfurter’s network, all “elite lawyers” hand picked because of their ties to F.F. and their “reformist inclinations.”

Whatever your opinion of Felix Frankfurter, his star may yet brighten anew, though probably not in the universe of Supreme Court history and jurisprudence. His true galaxy was elsewhere – in that realm where the “minds of men” move the gears of government to places only once imagined in classrooms in Cambridge.

Ask your librarian for, or go online or order a copy of, Sujit Raman’s illuminating article in volume 39 (March 2014, #1, pp. 79-106)) of the Journal of Supreme Court History. Better still, join the Supreme Court Historical Society. Either way, it will serve you well.

1

Originalism in Noel Canning, Part II (“Happen”)

My last post talked about the original meaning of “recess.” Next is the “happen” question: For President to fill a vacancy during a recess, must the vacancy arise during the recess, or can it pre-date the recess? The question has been framed as whether “happen” in the Recess Appointments Clause means “arise” or “exist.” (As a reminder,the Clause grants the President power to “fill up all Vacancies that may happen during the Recess of the Senate.”) The majority may have the better of the argument here as well.

To the modern ear, “happen” sounds like it only means “arise.” But what about to the eighteenth-century ear? As the majority observes, Thomas Jefferson opined in 1802 that the phrase was susceptible of either meaning. Perhaps more important, since his direct claim might have been politically motivated, Jefferson actually used “happen” to mean “exist” in his own correspondence. Although Alexander Hamilton endorsed the arise view, he called it only the “most familiar and obvious sense” of the language, which is different from saying it is the exclusive meaning. Likewise, Attorney General Wirt opined in 1821 that, although “arise” was the more natural reading, “exist” was possible as well, “without violence to the sense.”

Dictionaries suggest that “exist” was a valid, albeit minority, meaning of “happen.” One ratification-era dictionary gives the definition “to be” (others provide only the arise meaning). The Oxford English Dictionary’s third definition is “to chance to be,” and it provides usage examples from before and shortly after the late eighteenth century. Ratification-era constitutions also give some support to the “exist” reading. Most, if not all, of the constitutions that grant recess appointment powers do not restrict them to vacancies that arise during a recess. If there was a gestalt sense of how recess appointment powers should operate, then, it appears to have reflected the “exist” view.

There’s more, but let’s move on to the concurrence. To support the “arise” view, it cites two early attorneys general, an 1803 scholarly interpretation, and early congressional practice. Not bad. One can quibble with some of this evidence—I’ll pick on one piece in a moment—but for now let’s assume it’s sound. Does it establish that the “arise” view was the sole meaning of the word happen? It seems hard to reach that conclusion unless one is compelled to choose an exclusive meaning for the term. Otherwise, it’s hard to justify dismissing the contrary evidence, which includes the views and usage of Thomas Jefferson, hardly an unlettered member of the founding generation. (The concurrence, in an unfortunate moment of overstatement, says that “no reasonable reader” would have understood the Clause the way Thomas Jefferson apparently did.)

If one must choose a single definition, then of course it’s reasonable to conclude that “arise” was the more natural or majority meaning. Was the Court compelled to choose? I don’t see why it was, and the concurrence doesn’t offer a reason. The Clause’s drafters had to balance the need for expediency against the desire for Senate involvement—the potential need to fill offices urgently, regardless of when vacancies arose, against the possibility of less Senate involvement than one generally might desire. It is not clear that they must have erred one way or the other. Neither choice is unreasonable, much less absurd.

Ultimately, then, I think the majority’s conclusion better reflects what we know of original meaning. The evidence suggests that the word was ambiguous, susceptible to two different readings. One seems clearly to have been a minority meaning, to be sure. But in the absence of a compelling reason to pick an exclusive position, it seems the proper approach as a matter of original meaning is to recognize that the text had two possible meanings, and leave it at that.

Now for the evidentiary quibble. As a general matter, I think the evidence for the “exist” view is weaker than commonly believed, and originalists should consider it more carefully. But here I’ll mention just one point: The concurrence leads with the opinion of Edmund Randolph, the nation’s first attorney general, and it seems to rely on him heavily. In an apparent attempt to bolster Randolph’s value as a source, the concurrence says that Randolph was “a leading member of the Constitutional Convention.” What the concurrence fails to note is that Randolph refused to sign the Constitution in part over objections to the presidential appointment power and recess appointment power. By the Virginia Convention, he had come to support ratification, but he still expressed hope that the appointment power and recess appointment power would be excised from the document, at least with respect to judges.

Is Randolph a reliable source of original meaning? Maybe. Or maybe when he had the opportunity to set precedents as the first attorney general, Randolph pursued his private agenda—including his opposition to recess appointments—irrespective of original meaning. Perhaps even contrary to original meaning.

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Whatever Happened to Harriet Miers?

Miers_Harriet_newpgWith Justice Alito writing the last two opinions of the Term, I was overwhelmed by a sense of curiosity about what happened to Harriet Miers–President Bush’s first pick for Justice Alito’s seat.  Turns out that after she left the Administration she went back to her old law firm–here is her firm bio.  It’s interesting that the profile does not list “Nominated to be an Associate Justice of the Supreme Court” as one of her accomplishments (after all, how many other people can say that?)

In my draft article (almost done!), I note that Justice Fortas’s ethical problems made it much harder for presidents to appoint a close advisor to the Court without getting hit with the charge of cronyism.  The Miers nomination reinforced that understanding, though she had other issues.

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Abe Fortas and the Chief Justiceship

120px-Abe_fortas_hand_in_airI’ve posted previously about how the attempted retirement of Chief Justice Warren in 1968 and the failed nomination of Justice Fortas as his replacement caused a significant change in how people think about what the appropriate relationship is between the Justices and politics.  After Fortas went to the Court in 1965, he helped draft the President’s 1966 State of the Union Address, sat in on White House meetings about Vietnam, and gave his input on a host of other topics that we would now consider completely improper.

My favorite anecdote is that when Warren announced his retirement, LBJ called Clark Clifford and Fortas to the White House to discuss who his successor should be.  In other words, Fortas was in the meeting to decide that Fortas should be nominated!  (Needless to say, Fortas was for picking Fortas.)

stairway-to-heaven-1319562-m
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FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government. . . . False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

Read More

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FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.

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Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.

Counsel

  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.