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.

Laughtergate: The Day the Laughter Died at SCOTUS

This article first appeared in the December 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

Laughter can be serious business at the U.S. Supreme Court, especially on the First Monday in October.

As the new term opened this fall, laughter disappeared from argument transcripts and a mild rumpus ensued on social media. Laughter did make a comeback, but not without some unanswered questions.

“When you read Supreme Court argument transcripts,” Justice Elena Kagan explained to a group of Harvard Law School students in September, “they actually tell you when there’s laughter in the Court” and which justice triggered it.

Jay Wexler, a former clerk to Justice Ruth Bader Ginsburg and now a professor at Boston University School of Law, publishes updated laughter counts for each justice at his @SCOTUShumor Twitter feed, along with commentary.

“Ten o’clock,” Wexler tweeted on Monday, October 7. “I guess #SCOTUS has started up. I can feel the laughter coursing through the countryside. If you’re very still, you can too.”

Kimberly Atkins, who also follows Supreme Court laughter, was in the courtroom. From her @DCDicta Twitter feed that morning, Atkins reported that Chief Justice John Roberts, as well as Justices Antonin Scalia, Stephen Breyer, and Samuel Alito had all gotten laughs.

Problem is, when the transcripts went online later that day, the laughter was missing.

Twitter noticed.

Both Wexler and Atkins tweeted about the A.W.O.L. laughter, and Atkins reiterated: “I heard laughs w my own ears. But if it isn’t in the transcript, is it like a tree falling in a forest?”

Other Twitter users, including myself, joined the discussion through comments and retweets.

Laughter at the Supreme Court has a following. To some, it is like box scores, fun to track. To others, it is a digestive aid that helps dull transcripts go down. It is even fodder for scholars, since laughter gives insight into justices’ personalities and Supreme Court dynamics.

Wexler wondered if “they’ve stopped making the notation. Several possible laugh lines in the transcript.”

Not only was the term new that day, but so was the Clerk of the Court, Scott Harris. His predecessor, William Suter, retired over the summer after more than two decades in the position. Had a new, laughter-free day dawned at the Supreme Court?

That afternoon, I contacted Alderson Reporting, which prepares the transcripts. A company representative indicated by telephone the next day that there was not a new policy; however, he did not explain the laughter void. (Responding to a later inquiry for this story, the Supreme Court’s Public Information Office said: “We don’t know why the omission occurred.”)

“Laughtergate deepens,” Atkins tweeted.

The good news is that laughtergate was mostly short-lived. The next day, laughter showed up in a new transcript. The First Monday transcripts remained somber, though. During the next week, I checked for updates several times. Still no laughter.

Another check in early December revealed that the laughter was back: one laugh each for four justices on the term’s first day, consistent with Atkins’ tweet.

When the laughter returned is fuzzy. Neither Alderson nor the Public Information Office provided an exact date. The office did say that Alderson initiated and made the changes as part of its review process.

So, where do the numbers stand now?

After the “laughtergate fix,” as Wexler called it, he tweeted updated numbers for the term, current through the December sitting. Scalia leads with twenty-two laughs; Breyer is not far behind with twenty. Ginsburg and the famously silent Justice Clarence Thomas are tied for last with zero.

“I check sometimes,” Kagan told the Harvard Law students, with a slight grin, speaking of the laughter tallies.

For more justices’ comments on the subject, see Wexler’s collection at his website.

Justice Breyer and Religion

The Huffington Post ran an article on Friday asking: Did Justice Breyer admit to being an atheist?

Short answer, no.

The basis for the article's question comes from last week's Town of Greece oral argument (pp. 18-19).

Justice Scalia asked counsel: "[W]hat is the equivalent of prayer for somebody who is not religious?"

After a brief colloquy between Scalia and counsel, Breyer said: "Perhaps he's asking me that question and I can answer it later." (Counsel's time was about to expire.)

Some people are reading that as Breyer admitting he is an atheist.

Again, no.

A question for Breyer (if that's what it was) does not necessarily mean a question about Breyer or his beliefs. As, in fairness, the HuffPost article points out, Breyer could have been talking about his ability to at least restate other people's "not religious" viewpoints. In any case, "not religious" does not always equal atheist.

Breyer, who is Jewish, is a regular at the Red Mass, a Catholic service held before the opening of each new Supreme Court term. He has attended the last seven, including one just a few weeks ago.

His daughter Chloe, an Episcopal priest, writes in her book, The Close: A Young Woman's First Year at Seminary (2000), that "Church-based activity was more the exception than the rule as I was growing up" (p. 156). But the exceptions are telling. Breyer attended, hosted, and encouraged participation in religious events.

I grew up in an interfaith, academic household, the daughter of an American Jewish father and an English Anglican mother, and I was baptized into the Church of England as a young child. During the few years my family and I attended an Episcopal church in Cambridge, each of us had different reasons for going. My mother liked singing the traditional Anglican hymns she had grown up hearing in England. My father respected the old Irish American rector and thought my brother, sister, and I should have some exposure to organized religion—even if it wasn't his own Jewish faith. We came to know more about our Jewish heritage when my father began holding annual Passover Seders and attending Rosh Hashanah and Yom Kippur services (Introduction, xiii).

One end note: Justices, like all judicial and executive officers, need to take an oath to support the Constitution; however, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Art. VI, para. 3.

Since the Constitution says justices' religion shouldn't be an issue, why bring it up? (But, of course, we do.)

Breyer Reacts to Affirmative Action Decision: 'Phew'

The U.S. Supreme Court’s latest affirmative action decision has been criticized as anticlimactic and even inconsequential. Justice Stephen Breyer doesn’t think so.

Speaking earlier this month in Aspen, Colorado, Justice Breyer explained why Fisher v. University of Texas at Austin matters and expressed relief at the result.

Breyer shared the stage with Margaret Marshall, retired chief justice of the Massachusetts Supreme Judicial Court, and moderator Elliot Gerson, a former clerk to U.S. Supreme Court Justice Potter Stewart. Gerson now serves as an executive vice-president at the Aspen Institute, a think tank that sponsored the presentation, the Susman Conversation on Individual Constitutional Rights (pictures).

Gerson asked Breyer about the Fisher affirmative action case, noting “that the media seemed to dismiss [it] as insignificant.” The Supreme Court in Fisher returned the dispute to the lower court, eight months after argument, with little commentary.

Dressed casually and still wearing a sling due to a serious bicycle accident in April, Breyer gave a brief history of affirmative action at the Supreme Court, as background. He touched on Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher.

Bakke and Grutter held, in Breyer’s admitted shorthand, that “you can use affirmative action, but be careful, don’t go too far.”

When the same issue reached the Court again in Fisher, “there was a lot of speculation,” Breyer told the audience. “Would there be a change? Would [the justices] say no affirmative action? What would the Court do?” Breyer asked, repeating the questions on many people’s minds.

“I can tell you what the Court did do,” Breyer continued, with his characteristic verve.

“Seven members of the Court said Grutter is the law. So, what do I say? ‘Phew,’” drawing laughter. “I say that’s right; that was my view. Grutter is the law.”

With each case, Breyer pointed to numbers. Justice Lewis Powell’s solo concurrence in Bakke became a five-justice majority in Grutter, which became a seven-justice majority in Fisher.

In other words, five is better than one, and seven is better than five. Fisher was not meaningless; affirmative action left the Court stronger this term than it came in.

“So, that’s why I think it’s an important case,” Breyer concluded. “Sometimes an important case is simply reaffirming another case, which reaffirmed another case.”

The Court has already agreed to review affirmative action again in the upcoming term, which will test Breyer’s optimism. The new case is about a Michigan constitutional amendment that prohibits preference based on race or gender in public university admissions decisions.

Breyer acknowledged an ongoing “war” in the law related to affirmative action, including a close division among the justices.

Under one view, Breyer observed, the Fourteenth Amendment’s Equal Protection Clause is colorblind, meaning no discrimination for or against because of race. Another view, “closer to my own,” Breyer stated, is that the Amendment was intended to be inclusive, that is, to include African Americans, who had been slaves, into society.

Breyer discussed the role of dissents and how they can improve the majority opinion, perhaps an insight into Fisher. The only thing the public sees are “failed dissents,” as Breyer put it, the ones that didn’t persuade.

Breyer explained that justices sometimes work for months on dissents, only to scrap them when their persuasive points change the majority. “That is a common experience,” according to Breyer.

A veiled reference to Fisher? Maybe, maybe not. If so, it could partially account for the long delay between argument and decision in Fisher.

Breyer spoke the day before at another Aspen Institute event, an interview with Professor Noah Feldman of Harvard Law School, on the last day of the annual Aspen Ideas Festival. The week before, Justice Elena Kagan also spoke at the festival.

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.

Before Supreme Court TV, How About This?

As requests intensify for the Supreme Court to televise its arguments, see here, here, here, and a list here, some food for thought on access at the circuit court level.

"[M]ost determinative legal interpretations occur [not in the Supreme Court, but] instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts."  Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006).  Since the Supreme Court's docket is discretionary, less than 100 cases per Term in recent years, most federal courts of appeals decisions are final.

And yet, only seven of the thirteen federal appellate courts post oral argument audio to their websites, let alone video.  The Ninth Circuit leads the way, posting audio, as well as select video.  Permanent links are here (Appellate Daily's right sidebar: Resources, Oral Argument Audio).

Of the courts not posting audio to their websites, the Second, Fourth, Sixth, Tenth, Eleventh, and D.C. Circuits, perhaps the most surprising is the last.  The D.C. Circuit hears cases originating from all states, via its jurisdiction over administrative agency appeals, creating effects and interest nationwide.  Why, then, no nationwide web access to its arguments?  In addition, the Supreme Court and Federal Circuit, also in D.C., post audio to their websites (a new development this Term for the Court).

The other holdout circuits also issue crucial, final decisions.  For instance, the Second Circuit frequently decides securities cases with national implications.  And when the Supreme Court does grant certiorari in cases from these circuits, readily accessible argument audio would be a helpful tool for the public and media to understand the dispositions below.

But, beyond the internet, can't a person obtain audio from these circuits?  In many cases, yes, but not without paperwork, conditions, and/or cost, as shown, for example, in the D.C. and Tenth Circuits' procedures.  The Eleventh Circuit is the least open, restricting audio to internal court use only, per a telephone call to the Clerk's Office.

So, as efforts go forward to move the Supreme Court to TV, with some federal circuit courts (the source of "most determinative [federal] legal interpretations"), even huddling around the radio, so to speak, is not a given.

Justice Breyer's Law Review Article Revisited

Next Thursday, November 4, George Washington University Law School will hold an event called: Justice Stephen Breyer's "The Uneasy Case for Copyright": A 40th Anniversary Symposium.

The title in quotations is a 1970 law review article written by then-Harvard professor Stephen Breyer (84 Harv. L. Rev. 281) and he will speak at the symposium.  Per an event description, "The article both articulated a theoretical framework for assessing copyright law, and conducted a study of the publishing industry to provide empirical grounds for such an assessment.  Forty years later, debate over the goals and efficacy of copyright and of other forms of intellectual property has only increased, and Justice Breyer's article continues to occupy a prominent place in that debate."  The presenters, in addition to Justice Breyer, include "distinguished legal academics and economists from the United States and abroad."

Professor Robert Brauneis (rbraun@law.gwu.edu) is listed as the contact.

Video: Justice Breyer Interviewed on ABC and NBC

During the past 24 hours, ABC and NBC ran interviews with Justice Stephen Breyer about his new book, Making Our Democracy Work: A Judge's View.

ABC Interview with George Stephanopoulos, here (7:12)

• Breyer will attend the State of the Union, even if he is the only one.  The speech shows a visual image of the different branches of government and judges should be included.
• Bush v. Gore was a self-inflicted wound.
• First Amendment debate is protected, but, per Justice Holmes, one cannot shout fire in a crowded theater.  What is the crowded theater today?  The context of the question related to the globalization of communication via the Internet, including the Koran-burning controversy. 

NBC Interview with Brian Williams, here (4:08 summary; other portions of interview available from same link)

• Breyer is not concerned that only 1% of Americans know his name.  He is concerned if people do not know about the three branches of government.
• When asked whether the President should appoint some justices from state schools, Breyer saw no problem with that.  But he remarked that it is like asking the chicken about the recipe for Chicken a la King.  He does not do the appointing.
• As in the other interview, Breyer was asked about Bush v. Gore—in this one, whether it hurt the Court's credibility (yes).  But, as also mentioned in the other interview, even when a decision is wrong, our system is preferable to anarchy and violence.

Quote: Tip of the Iceberg

Last week, the Supreme Court took center stage with Justice Stevens' retirement, the Term's final decisions, and the Kagan confirmation hearings.  Tomorrow, Appellate Daily will turn its attention to the other appellate news around the country.  Hope everyone has had a great holiday weekend.
________________________

[T]he eighty cases that the Supreme Court hears annually represent the small tip of a vast iceberg. . . . [R]ather than the Supreme Court of the United States deciding every important question of law, most determinative legal interpretations occur instead in the federal courts of appeals, in the state supreme courts, and in state appellate courts.

Stephen G. Breyer, Reflections on the Role of Appellate Courts: A View from the Supreme Court, 8 J. App. Prac. & Process 91, 93 (2006).

There Are Always C-SPAN2 and C-SPAN3

Joe Wong likes that if C-SPAN does not help him fall asleep, there are always C-SPAN2 and C-SPAN3.

Tonight at 7pm (ET), C-SPAN will televise a panel discussion on the current Supreme Court term, moderated by Elena Kagan, before her nomination, and including former Solicitor General Paul Clement. This is part of C-SPAN's America and the Courts series, televised every Saturday night at 7pm. This link has recent programs available, including presentations by Supreme Court justices, among them a joint discussion with Justices Scalia and Breyer about their views of the Constitution.  Recent programs also include a speech by Fourth Circuit Judge Roger Gregory, as well as a Moot Court on health care and immigration status.