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.

Judge Kopf's Attire Post Was Just Awful

My reactions to Judge Richard Kopf's recent post on women's attire were first, shock, and second, concern, for the attorney being described and for all women appearing before the judge. Frankly, I also felt concern for the judge. The post is so clearly out of bounds that it made me wonder about his state of mind.

One part of the post reads like a numbered paragraph in a sexual harassment complaint, which might look something like this (the judge's words are in red):

23. The supervisor wrote:

"My employee is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes."

That kind of statement promotes discouragement and even, hopelessness: No matter how good you are, no matter how hard you work, it doesn't matter. I wondered if there was enough detail that local attorneys knew who was being described. If so, it's humiliating.

It got worse. The judge also wrote:

"Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down."

Via Muses of his own making (more on that below), the judge has just labeled a capable officer of the court "an ignorant slut."

Let's review all of the women described in the post:

1-Ignorant slut (who can write a heck of a legal brief, though!!)

2-Backstabbing gossips

3-Wicked stepmother (appearing to cite his daughter/s on this point)

4-Inept daughter in need of parental guidance

5-Teary daughter upset by events beyond her control

That's a good number of pejoratives and stereotypes related to women, in a relatively short post.

In the comments to the post, there was some feedback: female law clerks in the building had no idea what the post was talking about.

Responding, the judge said that he had taken "literary license, the example I gave in the post was an amalgam of more than one person and more than one event and did not necessarily relate to the same place or person. That said, the essence of the example was accurate."

If the example was "essence" or "an amalgam," and not real, that should have been noted in the original post, because real people get wrongly ID'd otherwise.

The next day, the judge attempted to justify the post as giving insight into the foibles of federal judges. I didn't need that post to realize that judges are human. I do expect that judges will treat people with courtesy, which the post did not.

If there is a general point on which I can agree with the judge, it is that attire does matter. But that universe is bigger than specific items of clothing, and it applies to everyone.

For example, Judge Carla McMillian of the Georgia Court of Appeals recently tweeted that she has seen "too casual dress" as a problem for both men and women. "Real life examples would be wearing a jogging suit to try a jury case or wearing 'boat shoes' with no socks. It just stands out," she wrote.

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.

Follow-Up re Letter to Chief Judge Briscoe About Argument Audio

The Tenth Circuit announced today that it will bypass normal procedure and post audio online from the historic argument on Utah's same-sex marriage ban, to be held April 10 in Denver. Presumably, the same will be allowed for the April 17 argument on the Oklahoma ban.

As noted in my recent letter to Chief Judge Briscoe requesting that change, persons wanting to hear argument audio must, under court rules, file a motion (stating reasons).

Thank you to Chief Judge Briscoe and the entire Tenth Circuit for opening the proceedings to all interested persons, including the public, as well as national and international press.

My guess is that the Tenth Circuit cases have the best shot of getting Supreme Court review because they present the clearest "case or controversy." Unlike other states, Utah and Oklahoma are defending their laws with no mixed messages from high state officials.

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.