Category: Supreme Court


Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.


Uses of Legislative History: Scalia v. Alito

Today the Supreme Court held unanimously in Zedner v. United States that a defendant may not prospectively waive the application of the Speedy Trial Act and, therefore, a defendant’s agreement to waive the Act’s protections “for all time” in his pending criminal case was ineffective. Justice Alito wrote the majority opinion in which he reasoned that the language and purposes of the Speedy Trial Act led to the conclusion that the Act did not permit prospective waivers and that this conclusion was supported by the Act’s legislative history. Justice Scalia wrote the single concurring opinion, joining the majority opinion except for it’s use of legislative history.

Sharply criticizing Alito’s reliance on legislative history, Scalia wrote:

I believe that the only language that constitutes “a Law” within the meaning of the Bicameralism and Presentment Clause of Article I, §7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. . . .

It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences. To begin with, it accustoms us to believing that what is said by a single person in a floor debate or by a committee report represents the view of Congress as a whole—so that we sometimes even will say (when referring to a floor statement and committee report) that “Congress has expressed” thus-and-so. . . . There is no basis either in law or in reality for this naive belief. Moreover, if legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous. Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face—I do not join this portion of the Court’s opinion.

Given that the decision is 9-0, it’s hard to read it as early evidence of a large difference between Scalia and Alito. For that, we’d need a case in which Alito uses legislative history to buttress a statutory interpreptation with which Scalia does not otherwise agree.


Supreme Court Minimalism And Its Effects On Lower Courts


Cass Sunstein blogged and opined yesterday on Justice Roberts’ Georgetown Law commencement speech. The Chief argued that there were clear benefits to consensus, or near-consensus, in Supreme Court decisions. As a result, he argued for judicial minimalism because “the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground”. He thus concluded that “if it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”

Sunstein seems to approve of this view, on broader social grounds. He contends that minimalism “tries to avoid taking a stand on the most controversial questions and thus shows respect for people with reasonable competing views” and adds that “narrow rulings help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible.”

The cost to minimalism, which Sunstein points out, is that lower courts lack clarity on the law. A 6-3 vote may ruffle more feathers, but at least the lower courts have greater guidance for future cases. But there is another important implication to deciding cases on very narrow grounds: federal courts will increasingly produce circuit splits. And state courts will similarly diverge in their interpretation of federal law.

When the Supreme Court gives broad guidance, lower courts can better predict the “proper” answer to questions outside the narrow facts considered by the Court in the particular case. Lacking such guidance, lower courts will often reach differing conclusions on the scores of subissues that lay just beneath the surface of any Court opinion. The problem is that, because the Supreme Court hears so few cases, many of these disagreements will remain in place for extended periods. Thus, courts reviewing death sentences in Missouri may have a very different concept of “mental retardation” than courts in Florida. This despite the fact that, according the the Supremes, it is unconstitutional to execute a person with mental retardation.

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Lawyer Sophistication in Supreme Court Criminal Litigation

Tony Mauro has a nice article in the Legal Times suggesting that, while the Supreme Court bar has become increasingly specialized, that process has not extended to criminal cases. In criminal matters, it seems, the local lawyer wants to hold on to the case. One possible result: criminal law develops in ways more hostile to criminal defendants. Why might criminal clients be less likely to use a Supreme Court boutique for their Supreme Court argument? Several reasons.

First, and probably most importantly, there is client sophistication. When IBM has a case in front of the Supreme Court, you can be sure that its general counsel – the true client – seeks out the attorney best prepared to win. And since that general counsel knows a lot about the business of law, he or she will surely be able to identify the most appropriate lawyers for the job. Most criminal clients, on the other hand, are relatively poor, relatively uneducated, and relatively unsophisticated. (I use the term “relative” since a recidivist may know more about good and bad lawyers than the average schnook who never got arrested, got divorced, or sued in tort.)

Also, criminal practitioners have every incentive to litigate the case themselves, and little not to. Most lawyers would love to argue a case before the Court. It looks fun, and – prospectively, at least – it offers a big ego boost. (You may not feel so good once Scalia has shaken you like rag doll.) They can also claim big shot status to clients who probably won’t know any different. And the main downside – that you lose, that you’re embarrased publically – will be lost in a market with limited information flow (unsophisticated incarcerated clients spread reputational data, but my sense it that it often relates more to the sizzle than the steak) – and where almost every case is lost on appeal.

Another factor may be the degree to which lawyers care about the broader implications of an individual case for the entire doctrinal area. In many areas of civil practice, the lawyers align their own interests very closely with clients. This is particularly true for activist lawyers who are suing as much for themselves as clients. But it’s also true in private practice. I would expect a management side labor lawyer to want to win for Client A because it will be good for Clients B-Z and because, over time, that lawyer is likely to find the positions of his or her clients preferable, as a normative matter. Part of this is good business, but part is that lawyers have close professional, and sometimes social, relations with their clients. The blurring of the lawyer/client line is less common for criminal lawyers. While many criminal lawyers do care deeply about the issues they litigate, it is usually in the activist lawyer sense. And in any case, my sense is that this passion is more common among indigent defense lawyers (and particularly public defenders) who do the work, and pass up income, in the interest of social change. And I wonder if these passion-defenders are the lawyers least likely to showboat at the Supremes to the deteriment of their client.

I’m curious what others think about this.


Google Trends

alito.pngVia Andrew Sullivan, I see that Google has a new tool up to distract us in our time of need. Google Trends. It shows the relative popularity of search terms over time, over regions, and over languages. For example, the graph to the right reflect the searches for the term “Alito“. (Point “C” is when the Justice was nominated.) Unfortunately, you’ve apparently got to be somewhat popular to be trended: Volokh is, but I’m not. Jennifer Aniston, needless to say, is trended (and point “F” explains something like 10-20% of our total traffic.) Best of all, you can use google trends as a rankings supplement: here’s a Harvard, Yale, Stanford Law ranking metric you haven’t seen before!


Supreme Court Clerk Feeder Judges And Snaring Those Clerkships When You Didn’t Go To Yale

ladder.jpgFor the many of us who teach at solid, but not top 10, law schools, one big challenge is figuring out a way to get our graduates Supreme Court clerkships. Each year, a handful of students – and sometimes a very small handful – from the law school hoi polloi find their way into a Supreme Court clerkship. How do they get there?

The first thing any aspiring clerk needs is a list of feeder judges. Stuart Buck provided this list. Note that it covers a long period – 1989 to 2005 – and there have been shifts over time. Still, it gives insights into highly desirable clerkships (for Supreme Court feeding purposes) and shows particular hiring patterns.

But what else can a student do to make the move from, say Alabama (or any other similar school) to a Supreme Court clerkship? The first requirement, naturally, is that the student do exceptionally well – probably top two or three in the class. It also helps if they pile on the achievements; relatively few valedictorians are also Editor-in-Chief of the Law Review. While they’re at it, they might work with a law professor, assuring an excellent, detailed letter of recommendation. And it wouldn’t hurt to publish a note (or two.) That’s all for starters.

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Big Judicial News: Michael Luttig Resigns


The Supreme Court has lost its biggest law clerk feeder. Michael Luttig, a conservative Fourth Circuit judge who many expected to receive a Supreme Court nod, is leaving the bench to become general counsel to Boeing.

This is big news in many respects. For law students, the single most reliable path to the Supreme Court has closed. While I do not have hard numbers on this, I believe that for at least the last six or seven years, all – or virtually all – Luttig clerks have landed Supreme Court clerkships. This is an awesome statistic. There are always a few judges with very high rates of law clerk placement, but I am not aware of a single judge who has offered the certainty of Judge Luttig. Of course, the Luttig trail was not open to all comers. Luttig vetted his clerks to make sure they were in tune with him ideologically.

For Supreme Court watchers, this means that the odds of a Luttig nomination have just dropped measurably. I suspect that once Roberts and Alito took places on the Court, Luttig recognized that he could not be next. It seems virtually impossible to imagine that, if he gets another nomination, Bush will name a white male. Even if Bush gets two chances, Luttig’s odds have gotten long. Notwithstanding his experience on the Fourth Circuit, Luttig looks much less logical coming from a corporate slot then from a circuit court.

Fourth Circuit enthusiasts (and, as a former Fourth Circuit clerk, I count myself as one) will all watch to see if Bush actually manages to find and pick a nominee as conservative as Luttig. I think it will be awfully difficult to do, but it will be even harder to pick someone as ideologically consistent.

Make no mistake, though. This is big news. Judge Luttig was an important nominee for George G.W. Bush back in 1991. At 37, his appointment was a beachhead for movement conservatives. He was supposed to be on the Supreme Court. Bush’s two recent picks received strong support from the right. But a Luttig nomination would have triggered an entirely different sort of jubilation. For many judicial conservatives, Michael Luttig was a fellow traveler. He will be missed.

Hat tip to Howard Bashman.


Alito’s First Death Decision

Alitocollege.jpgSam Alito’s first SCOTUS opinion arrived yesterday and – if you see the world through Cass colored glasses – it’s a liberal one: the defendant won. The issue in Holmes v. South Carolina was whether:

a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

The trial court excluded evidence suggesting that a third party had confessed to killing 86 year old Mary Stewart. Why? On the grounds that the evidence against the defendant was so powerful that any evidence implicating the third party could not raise a reasonable inference that the defendant was innocent. To put it another way, the case against Holmes was so good that the state was allowed to exclude evidence that another guy did it. No need to bother the jury with messy details. The South Carolina Supremes thought this was a fine idea as well.

This didn’t look like a hard case to me and the 9-0 vote thankfully confirmed that feeling. If a defendant possesses reasonably relevant evidence on the issue of guilt, we generally let the jury hear it. When, as here, a judge keeps this information from the jury, he or she effectively decides the outcome of a case. In rejecting this policy as unconstitutional, Justices Alito and Roberts proved that whatever their ultimate ideological place on the Court, they are not completely off the deep edge.

More interesting to me, though, is what was missing from the decision. Alito did not note that this was a death penalty case. His opinion stated that Holmes received a death sentence after his first trial, and that this trial and sentence were reversed by a state court. But nowhere in the opinion did he say that this new appeal was also from a death sentence. Why is that? Perhaps it was an oversight. Or maybe Alito thought the underlying sentence was an unnecessary fact. If so, why did Alito note Holmes’ capital sentence after his first trial? Perhaps he didn’t want to highlight this as a death case. He might have felt uncomfortable reversing a death sentence in a heinous killing. Or maybe he didn’t want the case framed as a “death decision” – with all the attendant baggage – and instead cast it as a plain old evidence ruling.

This is a small detail to be sure, but Alito surely knew his first opinion would go under a microscope. The odds are that this omission was not strategic. But if it was, I certainly hope that it does not portend a broader willingness to omit uncomfortable facts.


Roberts’ And Alito’s Pragmatic Turn

In an otherwise mundane decision yesterday, Day v. McDonough, Justices Alito and Roberts joined a surprisingly pragmatic habeas corpus decision penned by Justice Ginsburg. The case involved a state prisoner who filed his habeas papers 23 days after the federal statute of limitations had run. A negligent attorney for the State of Florida, however, had miscalculated the time and the state conceded in briefs to the district court that the petition was timely. Fortunately (or unfortunately, depending on your perspective) a johnny-on-the-spot federal magistrate took out his abacus and discovered the error. He then dismissed the petition sua sponte.

The Supreme Court affirmed the per curiam decision of a conservative 11th Circuit panel (Pryor, Dubina and Tjoflat) holding that the district court was permitted to dismiss the case sua sponte on statute of limitations grounds. It held that the State’s waiver of the issue did not forfeit its statute of limitations claim. The issue is controversial because the Federal Rules of Civil Procedure generally provide that statute of limitations defenses are forfeitable. As Justice Scalia pointed out, the majority opinion “disregards the Federal Rules of Civil Procedure in habeas corpus cases chiefly because it believes that this departure will make no difference.” Scalia describes the holding as “novel presumption against” applying these rules.

On its face, the decision might be termed “conservative” because, well, the criminal defendant loses. (That is how Sunstein, at least, would probably classify it – based at least on his methodology in Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation.) But in fact this relatively loose play with the Federal Rules of Civil Procedure is pretty darn pragmatic. Scalia makes a good case that precedent and Congressional action both cut against this snubbing of the Federal Rules. Based on everything we’ve heard to this point, I wouldn’t have been surprised to see Roberts and Alito share Scalia’s skepticism. (And what about the uber pragmatist, Breyer? What’s he doing in bed with his nemesis?)

I’m neither a Supreme Court scholar nor a civil procedure buff. (I learned civil procedure from John Sexton, which means that I’d be an AWESOME law dean!) But does this configuration provide a hint – if only that – that Rolito (can I trademark that term, kind of like Three-peat?) will be more Rehnquist than Scalia? I guess we’ll just have to see.

Hat tip to a former student.