SCOTUS Historical Society Event with Justice Alito

April 9, 2014 / Michelle Olsen

The Supreme Court Historical Society held a panel discussion about judicial biographies, hosted by Justice Samuel Alito at the Supreme Court on April 9.

The tweets below are observations from the event, including some interesting comments by Justice Alito during the program, held in the courtroom, and at the reception after.

The Historical Society supports research, programs, and publications about the Court. Justices are often present at the events. Information about membership is here.

The Supreme Court gift shop, which sells autographed copies of justices’ books and many other items, supports the Society’s work. 

Justice Alito recommends http://t.co/NDPCml88HB as a resource for learning about #SCOTUS.
— Michelle Olsen (@AppellateDaily) April 10, 2014

Justice Alito: Both the Historical Society and the Fellows program were the "brainchildren" of CJ Burger. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Alito & his wife went to lecture by a judge some yrs ago that was very boring. Alito guessed boring bc judges limited in what they can say.
— Michelle Olsen (@AppellateDaily) April 10, 2014

...His wife said, "No, it's because judges are very boring people." Alito: "She's never wrong."
— Michelle Olsen (@AppellateDaily) April 10, 2014

#SCOTUS-Justice Alito attended the reception after and spoke with many people.
— Michelle Olsen (@AppellateDaily) April 10, 2014

I asked Justice Alito if he would like to do a book. It was a decided no. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Alito was interested to read, re Heller, that he's a gun "enthusiast." Gun use almost exclusively when in Army, he told small group. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Event itself re judicial biographies. Panelists have written about #SCOTUS justices. Interesting pros and cons of deceased or live subject.
— Michelle Olsen (@AppellateDaily) April 10, 2014

Pro of live subject is the original source; pro of deceased subject is that others more willing to talk about person. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Prof. Stephen Wermiel @AUWCL talked about being chosen by Justice Brennan to write his bio. Met in secret at Court, pored over papers.
— Michelle Olsen (@AppellateDaily) April 10, 2014

Panelist Clare Cushman gave high marks to co-panelist book: Judge John Ferren on Justice Wiley Rutledge: http://t.co/67BmcLltNR #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

...Among the impressive and long list of sources noted at end of the Rutledge book is Justice John Paul Stevens, a Rutledge clerk. #SCOTUS
— Michelle Olsen (@AppellateDaily) April 10, 2014

Facebook Case Tests Scope of ‘True Threat’

This article first appeared in the April 7, 2014, issue of the National Law Journal’s Supreme Court Brief.

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

The petition also notes that at least eight state high courts are in conflict with the federal courts of appeals covering their regions. For instance, the First Circuit utilizes an objective test, while Massachusetts and Rhode Island follow a subjective one. State-federal conflicts are present in the Second and Ninth Circuits, too, the petition reports.

The Third Circuit applied the objective test, the majority view, to uphold Elonis’ Facebook convictions.

In his petition, Elonis argues for the subjective test, submitting that he was just using Facebook therapeutically, as his marriage had broken up and he had lost his job. The Facebook posts, the petition contends, “certainly involve no more violent imagery than songs by any one of scores of popular rappers, including the Eminem songs about the rapper’s ex-wife that inspired several of petitioner’s posts.”

In his Facebook posts, Elonis brought up the First Amendment, linking to a Wikipedia entry on freedom of speech. In one post, he wrote, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

New Appellate Chair at Jones Day, First Woman

Credit: JonesDay.com

Beth Heifetz is the new chair of the Supreme Court and appellate group at Jones Day, known formally as “Issues & Appeals.” She succeeded Glen Nager as of 2014.

Heifetz is the first woman to lead Issues & Appeals, a group of more than seventy-five attorneys in twelve offices throughout the country.

Her career path to chairing a flagship group at a major law firm has been both traditional and non-traditional.

Heifetz is a longtime member of the Issues & Appeals group and a former Supreme Court clerk, working for Justice Harry Blackmun during the 1985 term.

“I learned law, and I learned baseball,” Heifetz said, in an interview Monday.

She and her co-clerks had breakfast with the justice every day during the week, and he would share details about players and statistics.

Blackmun and Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, for whom she also clerked, served as mentors and role models as her career progressed.

The part that is unexpected (and encouraging) in Heifetz’s career trajectory is that she stepped away from practice for five years, while raising young children. She also later worked part-time.

Heifetz attributes her success in returning to practice and now leading a nationwide appellate group to support from both her family and Jones Day. “Everyone was committed to making it work,” she observed.

Recently, Heifetz made news as the partner in charge of judicial clerk recruiting. In the last two hiring cycles, under her leadership, twelve Supreme Court clerks joined the firm, a jaw-dropping total.

Heifetz is excited about the new hires, “great young attorneys,” as she put it, and the future of the Issues & Appeals group.

“We’ve got a good formula,” Heifetz explained.

Jones Day is always a presence at the Supreme Court. This term alone, the firm has four arguments by four different attorneys. The variety of advocates is a Jones Day trademark, term after term.

Heifetz is currently working on the high-profile Detroit bankruptcy at the Sixth Circuit and in related proceedings, with other Issues & Appeals attorneys. She and Detroit’s Emergency Manager Kevyn Orr, formerly of Jones Day, worked together at the firm on bankruptcy matters. Now, both find themselves with roles in the supersized Detroit bankruptcy.

Heifetz also intends to continue her community involvement. In 2013, President Obama appointed her to the governing body of the U.S. Holocaust Memorial Museum. She works with the museum on its collections: obtaining and preserving evidence of the Holocaust and ensuring that it is accessible to researchers.

Nager, who led Issues & Appeals for fifteen years, maintains an active appellate practice at Jones Day. Just last week, the Supreme Court granted a petition for certiorari that Nager filed in North Carolina Board of Dental Examiners v. FTC. He also recently completed two years as president of the U.S. Golf Association.

Tenth Circuit Same-Sex Marriage Arguments: Letter Requesting Online Audio

This letter was sent to Chief Judge Mary Beck Briscoe of the U.S. Court of Appeals for the Tenth Circuit.

February 22, 2014

Dear Chief Judge Briscoe:

This letter is a request for the Tenth Circuit to consider posting argument audio online, as a routine matter, and for the same-sex marriage arguments in April, specifically. My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and ten federal appellate circuits post argument audio to their websites. Only three circuits, including the Tenth Circuit, do not. The Tenth Circuit is the only one of the three that requires a motion to be filed to obtain audio.

The April arguments about the constitutionality of same-sex marriage bans will be part of American legal history, as the country and the courts weigh this important issue. There will be national and even international interest in the arguments. The Tenth Circuit courtroom cannot accommodate that level of interest, nor can any courtroom. Since the proceedings are public, this presents a meaningful gap in public access.

Posting audio of the arguments online would help fill this gap. It would also reduce the administrative burden on Tenth Circuit judges, staff, and persons requesting audio, as motions would not need to be filed or processed.

The Supreme Court, famously cautious on access, has been posting its audio to the Internet since 2010. The Ninth Circuit recently began live streaming audio of all arguments and video of en banc arguments.

It would be greatly appreciated if the Tenth Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering access to argument audio online, particularly for the April marriage arguments.

Thank you for your consideration.

Kagan: 'Too Soon' for a Bobblehead

This article first appeared in the February 12, 2014, issue of the National Law Journal’s Supreme Court Brief.

*Photo credits below

Speaking to an audience in Washington, D.C., Justice Elena Kagan recently reflected on her future legacy—and a possible Kagan bobblehead.

The occasion was a February 5 luncheon where Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit was honored with the J. Reuben Clark Law Society’s Rex Lee Advocacy Award.

During a question and answer period, I asked Kagan how she would like to be remembered and, on a related, but more whimsical note, what she would like on her future bobblehead. The popular figures of Supreme Court justices, distributed by the Green Bag law journal, feature visual references to justices’ important opinions.

“I don’t have ambitions to lay down some marker in a particular field of law,” Kagan replied. There is no: “I want to be a great First Amendment person,” or “I want to have a legacy in Fourth Amendment” for her. “I am taking the cases one by one” and trying “to decide [them] as well and honestly as I can.”

Kagan wants her opinions to be clear, persuasive, and “not awful to read.”

And about her bobblehead?

“Too soon, too soon, too soon,” the justice indicated. “I hope that none of the things that I have written [so far] will make the cut” because there has not been “anything significant enough.”

Responding to another question, Kagan recalled a conversation with Srinivasan and former Solicitor General Paul Clement about different argument styles. The three were on a plane, traveling back from the Sixth Circuit.

“I forget whether it was Paul or Sri who said some people heat up a room, and some people cool down a room,” Kagan offered, noting that superb advocates fit in both categories.

Srinivasan is on the cool side, Kagan observed, “incredibly forceful and persuasive” in giving justices the unadorned “scoop.” Clement uses his own effective approach, she pointed out, bringing “electricity” to the podium.

It “is really important for young lawyers to remember when they start developing their own advocacy style, that you can be great in a lot of different ways,” Kagan explained.

Accepting the Rex Lee award, Srinivasan joked that he has gone from being “an appellate advocate wanna be” as a new law graduate to “already an appellate has been with my most recent appointment.”

Srinivasan joined the D.C. Circuit in May 2013, after a distinguished career as an appellate advocate. At the time of his confirmation, Srinivasan was the Principal Deputy Solicitor General, the number two position in the office, once held by Chief Justice John Roberts. The Senate confirmed Srinivasan to the D.C. Circuit by a remarkable 97-0 vote, and he is often mentioned as a potential Supreme Court nominee.

Srinivasan praised the thirteen prior Rex Lee award recipients, who include several past solicitors general and other appellate luminaries, as “the best of the best” and expressed gratitude that he had worked with eleven of them.

Judge Thomas Griffith, Srinivasan’s D.C. Circuit colleague, introduced Kagan at the luncheon. Srinivasan thanked Griffith for giving him a warm welcome to the court and for his example as a judge.

The annual Rex Lee award is named for the late solicitor general who served in the Reagan administration. His son, Senator Mike Lee (R-UT), was at the luncheon.

Solicitor General Donald Verrilli, Walter Dellinger, Maureen Mahoney, and other well-known appellate attorneys also attended.

James Rasband, dean of the J. Reuben Clark Law School at Brigham Young University, introduced Srinivasan and presented the award.

The J. Reuben Clark Law Society is associated with BYU’s law school and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and as its founding law school dean.

*Photo credits: Nicholas Jepsen for the J. Reuben Clark Law Society
1-Justice Elena Kagan during Q&A
2-Judge Sri Srinivasan and Dean James Rasband, BYU Law School, with the Rex Lee Advocacy Award
Hyatt Regency Washington on Capitol Hill

Circuit Split Watch: Are 'Boobies' Bracelets the New Black Armbands?

This article first appeared in the January 22, 2014, issue of the National Law Journal’s Supreme Court Brief.

Federal courts are split over whether schools can ban bracelets that say “i ♥ boobies! (KEEP A BREAST).” The bracelets are part of a breast cancer awareness movement targeted at youth, but some middle and high school administrators are crying foul. A petition for certiorari on this free speech issue is pending at the U.S. Supreme Court.

In its 1969 landmark First Amendment decision, Tinker v. Des Moines Independent Community School District, the Supreme Court held that school officials could not bar young people from wearing black armbands to school as a peaceful war protest. In 1986, though, in Bethel School District No. 403 v. Fraser, the high court said that officials could punish student speech that used vivid sexual imagery in a school assembly.

The “boobies” bracelet is a hybrid between the Tinker armband and the Fraser speech: a clothing accessory with a message, which some schools view as double entendre.

So far, courts have not found that the bracelets substantially disrupt the school environment, yet they have reached different results on the bans.

Schools won in Indiana and Wisconsin federal district courts; those decisions were not appealed. Students won at the U.S. Court of Appeals for the Third Circuit, sitting en banc in a Pennsylvania case.

The nine-member Third Circuit majority determined that the “bracelets are not plainly lewd,” looking to Fraser, and comment on “an undeniably important social issue,” applying Justice Samuel Alito Jr.’s concurrence in another student speech case, the Supreme Court’s 2007 Morse v. Frederick.

Five judges on the Third Circuit dissented.

What about “I ♥ vaginas” or “I ♥ testicles,” they asked, if couched as cancer awareness slogans? “[S]chool districts would be powerless to address” them.

The dissent also criticized the majority for treating Alito’s Morse concurrence as controlling and for deepening a circuit split on the weight of Alito’s opinion (separate from the split about the bracelets).

Morse is better known as the “BONG HiTS 4 JESUS” case, quoting a banner that students unfurled at a school event. A five-justice majority said that the banner was not protected speech in a school setting, since it promoted illegal drug use.

The Third Circuit dissent reasoned that since Alito joined that majority opinion, his concurrence is dicta. For plurality rulings, the narrowest rationale controls, but Morse was not a plurality. Justice Anthony Kennedy also signed on to Alito’s concurrence.

The Third Circuit majority responded that Alito and Kennedy cast the deciding votes, but on the condition, spelled out in the concurrence, that Morse not be read to restrict speech that “comment[s] on any political or social issue.” The social commentary language is binding and weighs in favor of allowing breast cancer awareness bracelets, the Third Circuit majority concluded.

A petition for certiorari is pending at the Supreme Court on the Third Circuit decision. Absent extensions, the response is due February 5.

The justices may opt to wait until more federal appellate courts have vetted the bracelet bans or otherwise choose not to disturb the rulings below.

In 2012, the justices declined to review two en banc decisions—also from the Third Circuit—about another free speech battleground for students and schools: online posts. The circuit had sided with students who created fake and vulgar MySpace profiles about their principals, while off school property.

Court Hearing Utah's Same-Sex Marriage Appeal Lags in Public Access

The U.S. Supreme Court today stayed the federal district court's ruling in Kitchen, "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit." The district court ruling had allowed same-sex marriage in Utah.

An argument in the potentially landmark case is coming to the Denver federal appeals court in the next several months.

The Tenth Circuit is one of only three holdout circuits that do not post argument audio online. The others are the Second and Eleventh Circuits, which make audio available via CD purchase. To get Tenth Circuit audio, you need to file a motion stating reasons for seeking access. If granted (which I have been told happens routinely), the court emails an mp3.

Perhaps the Tenth Circuit will make an exception with Kitchen or, perhaps, see this as an opportunity to join most of its sister circuits and post audio online.

Today, the access-leading Ninth Circuit began live streaming audio of all arguments and recently began live streaming video of all en banc arguments.

Links to audio from the ten circuits that post online and the Supreme Court are here.

Appellate Daily has done a series of posts advocating for greater public access to oral argument audio, including Before Supreme Court TV, How About This?, back in 2010. Several circuits have increased access since that time.

Via Twitter: Why Sotomayor Likely to Refer Utah's Stay Request to Full Supreme Court

UPDATED-See end of post

Mon. AM: Keeping an eye on #SCOTUS to see if any movement on Utah's #SSM request. Expecting Sotomayor to refer to full court, but we'll see.
— Michelle Olsen (@AppellateDaily) January 6, 2014

...If she denies, Utah could renew its request to "any other Justice," under #SCOTUS Rule 22.4.
— Michelle Olsen (@AppellateDaily) January 6, 2014

...Another reason referring to the full Court is likely. Denying just passes the buck to another justice. If UT can pick, my $ is on Scalia.
— Michelle Olsen (@AppellateDaily) January 6, 2014

...Would Sotomayor rather pass to the full Court or Scalia on this issue? Again, I think full Court is likely.
— Michelle Olsen (@AppellateDaily) January 6, 2014

The importance of the same-sex marriage issue also makes it likely that Justice Sotomayor will refer Utah's stay request to the full Court.

Update from Adam Charnes, who clerked for Justice Kennedy:

@AppellateDaily By tradition, if 1 justice denies and it is resubmitted to a 2nd justice, the 2nd justice refers it to the entire Court
— Adam Charnes (@AdamCharnes) January 6, 2014

This tradition is one more reason Justice Sotomayor will likely refer the request to the full Court. Why add paperwork when the request will probably end up with the full Court anyway?

Second Update: Justice Sotomayor referred the matter to the full Court, which granted the stay (here).

Third Update:

Re discussion earlier today on #SCOTUS apps, example of tradition bucked (2nd justice didn't refer to Ct) via @EQCF http://t.co/Yf7pD4FCW2
— Michelle Olsen (@AppellateDaily) January 7, 2014

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.)

Circuit Split Watch: Attorney's Fees in Prisoner Litigation

This article first appeared in the November 5, 2013, issue of the National Law Journal’s Supreme Court Brief.

Mary Murguia, one of the newest judges on the U.S. Court of Appeals for the Ninth Circuit, recently took on two of her longest serving colleagues in a dispute over attorney’s fees in prisoner litigation. Murguia has another appeals court, the Sixth Circuit, on her side. The U.S. Supreme Court could be asked to resolve the split.

Judge Stephen Reinhardt, joined by Judge John Noonan, wrote the majority opinion in Woods v. Cervantes. Both have served on the Ninth Circuit since the 1980s. Reinhardt is still active; Noonan has taken senior status. Murguia joined the Ninth Circuit in 2011, though not as a rookie. From 2000 until her elevation, she served as a federal district judge in Arizona.

In the Ninth Circuit case, a California prison official improperly denied dental care to prisoner Earnest Woods, causing him pain and suffering for more than a year. A jury awarded Woods $1,500 in compensatory and punitive damages. After also winning on appeal, Woods sought attorney’s fees totaling $16,800.

The Prison Litigation Reform Act caps attorney’s fees at 150 percent of a money award for “any action brought by a prisoner.” Beyond that limit, “fees shall not be awarded.”

Reinhardt ruled that Woods was entitled to collect his attorney’s fees,** finding that the cap applies only to fees for a trial, an action brought by the prisoner, but not to appeals brought by prison officials.

Murguia, the former district court judge, disagreed, calling the majority’s attempt “to evade the statute’s clear meaning…unconvincing.” The trial and appeal are parts of the same action, she stated.

Citing a unanimous 2004 decision by the Sixth Circuit, Riley v. Kurtz, Murguia urged that the attorney’s fee cap apply to both the trial and appeal. The Supreme Court declined to review the Sixth Circuit case at the time.

“The majority has created a circuit split by awarding attorney fees the statute says ‘shall not’ be awarded,” Murguia concluded.

Reinhardt acknowledged the circuit split, but countered that “we are not required to follow the initial circuit to decide an issue if our own careful analysis” yields a “contrary result.”

The state of California, representing the prison official, filed a petition for rehearing en banc in August. California argued that the majority opinion “blows the lid off the statutory attorney’s fee cap that Congress enacted to lessen the financial burden of prisoner litigation on governmental officials and, ultimately, taxpayers.”

In September, the University of Montana Law School’s Criminal Defense Clinic responded for Woods, accusing the petition of “overriding hyperbole.” The response suggested allowing the issue to percolate through additional circuits.

The Ninth Circuit had directed the clinic to respond to the petition, indicating some level of interest in taking up the matter en banc. Responses to en banc petitions are not automatically allowed.

If the en banc court declines to step in, the case could reach the Supreme Court soon.

Attorney’s fees are already on the high court’s radar.

In the new term, the Supreme Court will hear two cases about fees in patent disputes. Companies have complained that they are forced to settle infringement lawsuits, even frivolous ones, because the costs of litigation are too high. They hope the justices will make it easier to collect attorney’s fees, to deter so-called patent trolls.

Last term, the Supreme Court decided an attorney’s fee case in the context of the National Childhood Vaccine Injury Act and another, without argument, in an abortion protest clash.

Murguia’s brother Carlos is a federal district judge in Kansas, their home state. The two are the first brother and sister pair of federal judges. Another sister, Mary’s identical twin Janet, is the president of the National Council of La Raza, the largest national Hispanic civil rights and advocacy organization in the United States.

____________________

**On the exact amount of attorney's fees to award, the majority referred the matter to its Appellate Commissioner.

RBG's Greatest Hits (on the Majority)

"And though she be but little, she is fierce."
William Shakespeare, A Midsummer Night's Dream

As the Supreme Court issued some of its last decisions of the 2012-2013 term, Justice Ruth Bader Ginsburg took the unusual step of reading three dissents from the bench, showing her strong feelings about them. The number is actually four, because one of her statements covered two separate cases.

Here, as she sounded live in the courtroom during the last week of June, are Justice Ginsburg's Greatest Hits (on the majority). Hearty thanks to Oyez for making them available online last night.


Shelby County v. Holder (Voting Rights Act)
"What has become of the Court's usual restraint...?"




Vance v. Ball State University & University of Texas Southwestern Medical Center v. Nassar (Title VII)
"The Court's disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy."




Fisher v. University of Texas (affirmative action, a solo dissent)
"I have several times explained why government actors, including state universities, need not blind themselves to the still lingering, everyday evident effects of centuries of law-sanctioned inequality."



Could the Supreme Court's next step to greater public access be live broadcast or same-day audio release of opinion announcements or arguments? I think that is a realistic target.

Circuit Split Watch: Patricia Millett's Last Supreme Court Case?

This article first appeared in the August 14, 2013, issue of the National Law Journal’s Supreme Court Brief.

Patricia Millett, one of President Obama’s three pending nominees to the U.S. Court of Appeals for the D.C. Circuit, is a counsel of record in Samantar v. Yousuf, now making its second trip to the Supreme Court.

The petition in the case, which Millett opposes, highlights a circuit split in the lower courts about immunity for foreign officials. The Supreme Court has already shown interest in the petition twice and may decide to hear the case in the upcoming term.

During a recent Senate Judiciary Committee hearing on Millett’s nomination, Senator Chris Coons (D-Del.) asked her about Samantar, which she argued and won at the high court in 2010. Millett, who co-heads the Supreme Court practice at Akin Gump, represents individuals who allege that Mohamed Ali Samantar is responsible for atrocities, including torture and murder, committed under his command as defense minister and then prime minister of Somalia. He currently lives in Virginia.

In 2010, the justices found that Samantar was not entitled to immunity under the Foreign Sovereign Immunities Act, but left open the question of whether common law immunity might apply. That is the issue in the latest case.

On remand, the Fourth Circuit rejected common law immunity for Samantar. The court noted that “crimes or human rights violations” contrary to international norms, also called jus cogens, can wipe away immunity.

The pending petition, filed by Shay Dvoretzky, a partner at Jones Day and former Scalia clerk who represented Samantar at the Supreme Court in 2010, contends that three federal appellate courts disagree with the Fourth Circuit.

Most recently, the Second Circuit held in 2009: “A claim premised on the violation of jus cogens does not withstand foreign sovereign immunity.”

Millett, for the respondents, disputes that a circuit split exists, in part because the cases the petition identifies as splitting from the Fourth Circuit predate the 2010 Samantar decision. In other words, they did not incorporate the Supreme Court’s latest statement on immunity for foreign officials.

In addition, the response brief points out that, after the Court’s 2010 decision, the U.S. State Department rejected immunity for Samantar. The State Department determined that he “is a former official of a state with no current government formally recognized by the United States.” As a result, no recognized government can “assert or waive any immunity Samantar might enjoy.” The United States recently recognized a government in Somalia, which requested immunity for Samantar, but the State Department has not, to date, changed its recommendation.

The case has the Supreme Court’s attention.

On June 24, after briefing by both sides, the justices called for the views of the Solicitor General (CVSG). According to research published in a 2009 George Mason Law Review article, “the grant rate is considerably higher following a CVSG,” but it does not guarantee that the Court will hear a case.

Earlier, the Court requested a response to Samantar’s latest petition, after that opportunity was initially waived. Though less of an indicator than a CVSG, the response request also increases the odds of a grant, according to the 2009 research.

The fact that the question at issue is one the Court itself left open earlier is another factor favoring review.

Will Samantar be Millett’s last Supreme Court case (or one of the last) in her history-making career as an advocate before the Court? The Senate Judiciary Committee already approved her nomination, along party lines, but the full Senate has not yet voted.

For most of her career, Millett served in the U.S. Department of Justice in the Solicitor General’s Office and in the Civil Division’s Appellate Section, under administrations of both parties. As Senator Ted Cruz (R-Tex.) told Millett at her hearing, she finds herself in the midst of a larger battle over the D.C. Circuit, which is not about her qualifications.

Millett and fellow Solicitor General office alum Lisa Blatt, who heads Arnold & Porter’s Supreme Court practice, made history in recent years by passing the thirty-argument mark, the most ever for female advocates before the high court. Blatt now holds the lead with thirty-three arguments to Millett’s thirty-two.

The author assisted with the briefs in the 2010 Samantar case as an attorney at Jones Day.

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.

Senator Lee Criticizes Chief Justice in New E-Book

This article first appeared in the July 17, 2013, issue of the National Law Journal’s Supreme Court Brief.

Since joining the Senate in 2011, Mike Lee has gained a reputation for criticizing President Barack Obama. In his new e-book, though, the junior Republican from Utah takes on a fellow conservative, Chief Justice John Roberts, and his 2012 opinion upholding the Affordable Care Act. I recently spoke with Senator Lee about the project.

Why John Roberts Was Wrong About Healthcare: A Conservative Critique of the Supreme Court’s Obamacare Ruling does not hide its political leanings. The title tells the story.

Lee, a former Howrey partner, writes that Roberts had “distinguished himself as a fair-minded jurist and a true constitutional scholar—a man seemingly committed to the rule of law and to core constitutional principles.” This “hard-earned distinction was turned on its head” after healthcare, according to Lee.

Roberts’ decision, in Lee’s view, smacks of an improper, split-the-baby compromise, a nod to both limited and big government. It put up a gate with the Commerce Clause, but opened it with the taxing power, invalidated, but then changed the Medicaid provisions to save them.

This was “contrary to what we expected from and thought we knew about Chief Justice Roberts,” the book states.

Lee acknowledges the possibility that Roberts made the decision because he ultimately believed the law required it. At the same time, Lee, who clerked for Justice Samuel Alito, strongly infers that statements from the media and political leaders swayed Roberts.

In the book’s foreword, Lee mentions his late father, former Solicitor General Rex Lee, and includes an interesting factoid: One of the last of Rex Lee’s 59 Supreme Court arguments, a 9-0 victory, was against a young Roberts.

“My dad held John Roberts in the highest regard,” Lee recalls, “and recognized how unusual it is to find in one person so much intellectual horsepower, professional talent, refined interpersonal skill, and genuine decency.”

I asked Lee how his father might have reacted to Roberts’ healthcare decision.

He would have been “disappointed and surprised,” for sure, but probably would not have written a book, Lee mused. Lee felt motivated to write because he saw a direct intrusion on Congress and, more personally, his job.

Although the title puts the focus on Roberts and there is a polemic flavor throughout, the book reads, overall, more like a primer on the healthcare case, from a conservative’s perspective.

As Lee told me, he wanted “to explain, in lay terms, what happened.” Consistent with a general audience, the book defines terms like “id.” and “Slip Opinion.”

Regarding the e-book format, Lee noted in our interview that political publishing is moving in that direction. He compared e-books to online singles in the music industry; he liked the idea of getting the book out quickly.

Also, Lee had in mind about 70 pages for the topic, which fits an e-book. That was as much as people would like to read about one case, he guessed, except for those who have already read the hefty healthcare decision itself.

Lee’s book ends with a lead balloon, a proposed bill attempting to nullify the healthcare decision’s tax ruling, which has little chance of passing in the Democrat-controlled Senate.

The book does not discuss the fact that prominent conservative judges who sit on federal appellate courts also voted to uphold healthcare. That being the case, why should Roberts be singled out and his motivations questioned?

Lee responded in the interview that Roberts’ approach was uniquely convoluted and more damaging, because it spoke for the Supreme Court.

The book currently tops Amazon’s best-seller lists for the judicial branch and for Kindle e-books about the legal system.

Good Morning from the Supreme Court of the United States (June Photos II)

Just a few of the scenes from the last week of decisions at the U.S. Supreme Court. Previous pictures are here and here.

"I don't know if I am in the cave or out of the cave; I see these shadows."
Justice Anthony Kennedy referencing the scrim and Plato's cave

Jan Crawford of CBS and Melanie Alnwick of Fox5 DC have the right idea
for a scorching summer AM: bare feet and flip-flops.

Part of the public line. Anyone have some huge chess pieces?

Scene outside after the same-sex marriage decisions.

The winning Prop 8 plaintiffs and attorney David Boies.

SCOTUSblog hard at work in temporary digs at the Court cafeteria;
there was a second table, as well. On the right (blue shirt) is Dan Stein,
gold medalist in the "Running of the Interns" and star of Vine.
Thanks to the whole team for keeping us so well informed
this week and throughout the Term.

Good Morning from the Supreme Court of the United States (June Photos I)

Here are a few photos from my visits to the U.S. Supreme Court for June opinion announcements. May pictures are here.

This makes a nice tweeting perch.

Twitter's mascot agrees.

Pete Williams from NBC entering a report.
The press has a room in the Court building and a seating section in the courtroom.

For fixing marble or making decisions at the Court, you need five.
(And six doesn't hurt.)

From this Court display, comes this Twitter favorite....

The male neck floof! (Worn by Chief Justice Hughes)

Where will the Court come out on same-sex marriage, affirmative action, and the Voting Rights Act?

I will be at the Court for all remaining opinion announcements, starting tomorrow. You can follow @AppellateDaily.