Top Appellate Daily Posts of 2013

Laughter beat caskets for the top Appellate Daily post this year.

Below are the most viewed articles of 2013. Four appeared first in the National Law Journal's U.S. Supreme Court section.

Thanks to everyone for reading in 2013 and for all of the follows, links, retweets, and mentions on Twitter. Happy 2014!

1-Laughtergate: The Day the Laughter Died at SCOTUS
          *Something went awry on the First Monday in October.

2-Circuit Split Watch: Will the Court Bury Casket Cases?
          *David-and-Goliath facts with an important legal issue stoked interest.

3-Justice Breyer and Religion
          *An ill-founded assumption prompted this post.

4-Circuit Split Watch: Patricia Millett's Last Supreme Court Case?
          *Prominent counsel and a second trip to the high court made this case one to watch.

5-Justice Souter: Working in Reverse, by Choice
          *Souter retired from the Supreme Court, but not from judging.

6-Breyer Reacts to Affirmative Action Decision: 'Phew'
          *Would have been a Top 5 list, except this piece came in at #6. One of my favorites to write this year. Candid and fascinating insights from Breyer on strategy.

A 2012 post on how Paul Clement prepares for oral argument is still the all-time champ.

Justice Souter: Working in Reverse, by Choice

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

Justice David Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a judge.

In January, Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit and eight more in February. As a retired associate justice, he has participated in approximately 170 First Circuit opinions, writing nearly fifty, far surpassing his previous experience as a court of appeals judge.

The First Circuit “is extremely grateful to Justice Souter for his invaluable contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit Executive, in response to an email inquiry for this article.

Even fully staffed, the First Circuit has only six active judges, the fewest of any circuit. One of those seats has been vacant since the end of 2011, when Judge Kermit Lipez took senior status. President Barack Obama nominated William Kayatta to the position in January 2012 and re-nominated him in January 2013. Kayatta was finally confirmed this month.

After serving on the bench for twelve years in New Hampshire, Souter’s home state, he sat on the First Circuit for just a few months, beginning in April 1990. He was nominated to the Supreme Court in July and confirmed in October. On that timetable, he heard argument, but authored no opinions.

Post-retirement, Souter’s numerous authored opinions for the First Circuit cover, among other topics, business, immigration, education, and employment.

In 2012, Souter was part of a unanimous decision in United States v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim and identified a circuit split on the issue, is currently before the Supreme Court on a petition for certiorari. Another retired federal judge, Paul Cassell, filed a pending petition on behalf of victims in related litigation out of the Ninth Circuit.

One of the First Circuit appeals Souter heard recently involves a request to disqualify the district court judge in the case of accused mobster James “Whitey” Bulger. On the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen years before being captured in 2011.

At argument, Bulger’s attorney asserted that the federal government had given his client immunity, but declined to say when, despite the panel’s interest in the question. The district judge had been a federal prosecutor, so the date could be relevant to his alleged knowledge of the Bulger case.

Souter pressed the attorney twice, noting that his brief implied a particular time period. The attorney eventually confirmed Souter’s reading and offered, “You’re the first person to get that out of me.”

So, why would Souter retire from the nation’s highest court only to be so involved at another court?

As the other justices expressed in a farewell letter read from the bench by Chief Justice John Roberts on Souter’s last day: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake,’” references to a region in New Hampshire and the words of Robert Frost from his 1923 anthology, New Hampshire.

Put less poetically, the Associated Press quoted Souter as telling acquaintances that his was “the world’s best job in the world’s worst city.”

Solution: Keep judging at a high level, but from a different location.

First Circuit arguments are generally held in Massachusetts, an hour-and-a-half drive from the justice’s New Hampshire home. The court hears cases from those two states, as well as Rhode Island, Maine, and Puerto Rico.

In his resignation letter, Souter told President Obama: “I mean to continue to render substantial judicial service as an Associate Justice.”

By all accounts, he has succeeded.

Unlikely Lame-Duck Vote in 1980 Still Reverberates

This article first appeared in the December 19, 2012, issue of the National Law Journal’s Supreme Court Insider.

Thirty-two years ago this month, one day after John Lennon was killed, the Senate confirmed Stephen Breyer to serve on the U.S. Court of Appeals for the First Circuit. Looking back, this 1980 vote on a future U.S. Supreme Court justice was remarkable and historic in its timing, speed, and long-term consequences.

In November 1980, Jimmy Carter lost a landslide election to Ronald Reagan, and Republicans won control of the Senate. Just days later, though, President Carter nominated Breyer to the First Circuit, and the lame-duck Senate confirmed him in December.

Citing the Congressional Research Service in a press release two weeks ago, Senator Chuck Grassley noted that, in addition to 2012, “the Senate has confirmed judicial nominees during a lame-duck session in a presidential election year on only three [other] occasions since 1940” (1944, 1980, and 2004).

Breyer was the only judge confirmed in the 1980 lame-duck session; in other words, he was in a category by himself between 1944 and 2004.

Breyer moved from nomination to confirmation in less than a month, which was not completely out of the norm then. Other circuit judges confirmed earlier in 1980 had gotten votes in short order. The Senate confirmed Breyer’s future colleague, Ruth Bader Ginsburg, only two months after her nomination to the D.C. Circuit. Ninth Circuit Judge Stephen Reinhardt was the exception with a nine-month gap.

Today, Breyer’s one-month lag time would be almost unthinkable, particularly for a circuit nominee. President Obama nominated William Kayatta in January of this year for a Maine seat on Breyer’s former court, the First Circuit. Despite support from Maine’s two Republican senators, Kayatta has not yet been confirmed. Two pending circuit nominees have been on hold even longer.

Without the quick, once-in-a-blue-moon vote in 1980, Breyer would have had a long wait for another opportunity. Republicans controlled the White House for the next twelve years.

Breyer served on the First Circuit during that time and beyond, eventually presiding as chief judge when President Clinton nominated him to the Supreme Court in 1994.

Clinton could have nominated Breyer to the Supreme Court without circuit experience, but the odds are against it. The last ten nominees to join the Court, except Elena Kagan, were all circuit judges.

Perhaps Breyer could have been nominated to a circuit court soon after Clinton’s election and had a short stint below. David Souter sat for only five months as a circuit judge before being confirmed to the Supreme Court, as a nominee of President George H.W. Bush.

No one can know for sure what would have happened, because lightning struck for Breyer in 1980, and the rest is history.

So, why did Breyer’s 1980 nomination go through?

Boston Globe articles at the time point to at least two reasons.

Breyer, who was serving as chief counsel to the Senate Judiciary Committee when nominated, impressed senators from both parties.

“It’s a rare personality that can survive two years in Washington and gain the admiration of a liberal Democrat like Edward Kennedy and an arch-conservative like Republican Strom Thurmond,” the Globe explained. However, “Breyer managed to do it.”

The Globe also reported that the two parties may have struck a deal. Republicans would support the Breyer nomination, while Democrats would not push a stack of other pending judicial nominees. Republicans helped force a vote on Breyer when a block was attempted and then helped confirm him.

First Circuit: Justice Souter on Class Size/ADA

Can smaller class size be a "reasonable accommodation" for disabled teachers under the Americans with Disabilities Act? Late last week, retired Supreme Court Justice David Souter, sitting by designation and writing for a unanimous First Circuit panel, said yes (at least at the motion to dismiss stage).

The appellants "are [two] public school teachers in Ponce, Puerto Rico." One allegedly "suffered a stroke while teaching and required heart by-pass surgery." The other allegedly has "a throat condition," which causes "excessive coughing and shortness of breath." The teachers' impaired health was medically certified and both were given small classes (between fifteen and twenty students) for a period of several years.

However, after the Puerto Rico Education Department Secretary raised the minimum to twenty students, both teachers' class sizes went up—actually beyond the minimum, to thirty students. One was given a team teacher to assist, but that person was new and required supervision. Both teachers brought suit, alleging that the increased class size caused "emotional and physical stress requir[ing] treatment."

The district court dismissed the complaints for failure to state a claim, but the First Circuit, with Justice Souter writing for the panel, disagreed and vacated the lower rulings.

Citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a decision he authored, and other cases, Justice Souter found that the district court required too much. Viewing the allegations in the plaintiffs' favor, "one would infer that there probably is some causal connection between the work of a doubled class size and the physical and emotional deterioration of the disabled teacher." Under Twombly, "[a] plausible but inconclusive inference from pleaded facts will survive a motion to dismiss," Souter wrote.

Previous Appellate Daily coverage of Justice Souter sitting on the First Circuit is here.

Highlights: Stevens on 60 Minutes ("He Knows How to Throw a Punch")

A few highlights from Sunday's 60 Minutes piece on retired Justice John Paul Stevens (linked here):

1-Retired Justice David Souter, in a cameo appearance, said, "John Stevens plays by the rules, but he knows how to throw a punch." And with respect to Stevens standing up for detainee rights: "That's what you've got courts for. He was earning his salary. . . . That made him one of the great judges."

2-When asked if he thought the Citizens United majority "legislated from the bench," Justice Stevens responded, "Yes."

3-However, he declined to impute political motives to the Bush v. Gore majority, stating instead that it was "unwise" and "profoundly wrong."

4-Justice Stevens, at age 12, and his family were robbed at gunpoint in their home. The robbers had threatened to shoot the family, but fled when a neighbor came to the front door unexpectedly.

Stevens' father, who had been very wealthy, but lost his fortune in the Depression, was convicted of embezzlement. The Illinois Supreme Court later reversed the conviction for lack of evidence. Stevens said that this experience "may well have" shaped his view of the system, i.e., that it sometimes convicts innocent people.

5-Debated legend has it that in a 1932 World Series game at Chicago's Wrigley Field, Babe Ruth pointed to center field and then hit a home run there. Stevens was at that game and says it is no legend. It happened.

Also check out the "Web Extras" (Stevens on Gay Marriage and the Death Penalty).

Souter, Associate Justice (Ret.), Sitting by Designation

This week, the First Circuit issued a decision that combined a psychologist's report, a divorce, and jurisdictional issues.  As Judge Bruce Selya wrote, "This appeal compels us to weave a decisional tapestry from several doctrinal strands that help define the margins of federal-court jurisdiction, including Eleventh Amendment immunity, abstention, and standing."  Retired Supreme Court Justice David Souter sat on the unanimous panel.