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.

Sixth Circuit Posts Argument Audio Online

I noticed some argument audio on the U.S. Court of Appeals for the Sixth Circuit's website and called the Clerk's Office this morning for details.

Per that call, the Sixth Circuit began posting audio at the end of July and plans to continue, going forward. The court is still deciding how long it will keep the audio up. There was no formal announcement, the Clerk's Office said. A link was simply added to the website.

That leaves only the Second, Tenth, and Eleventh Circuits that do not make argument audio available online. A friendly hint, hint, to those courts.

Find links to the now ten federal appellate courts that post audio here.

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.

Circuit Split Watch: Streaming Live Broadcast Television

This article first appeared in the June 10, 2013, issue of the National Law Journal’s Supreme Court Brief.

Through a service called Aereo, live broadcast television is available on computers in some areas. Many consumers welcome the option, but broadcasters, alleging copyright infringement, do not.

One federal appellate court recently ruled in favor of Aereo, while another is reviewing a contrary result. The U.S. Supreme Court may have the final word.

For eight dollars a month, Aereo subscribers can watch live broadcast television on their computers, tablets and smart phones. Available channels include ABC, CBS, NBC, FOX, PBS and others. Aereo is now in New York City and Boston, as well as surrounding areas. The company plans to expand in the near future to more than twenty cities.

In April, the U.S. Court of Appeals for the Second Circuit, in WNET v. Aereo, Inc., refused to block the streaming service, upholding the lower court’s denial of a preliminary injunction. Circuit Judge Christopher Droney wrote the majority opinion, joined by Judge John Gleeson, visiting from the U.S. District Court for the Eastern District of New York. Circuit Judge Denny Chin vigorously dissented.

Writing for the majority, Droney held that Aereo is essentially an antenna for the new millennium. Over the years, many viewers have used individual rooftop antennas to capture broadcast programming. Aereo uses new technology to do the same thing. Thousands of mini-antennas, about the size of a dime, are installed on boards at Aereo.

“Aereo assigns an individual antenna to each user. No two users share the same antenna at the same time, even if they are watching or recording the same program,” Droney explained.

Not so fast, countered Chin. Aereo transmits “programming without the authorization of the copyright holders and without paying a fee.” And its technology is “a sham,” he said.

Aereo has “no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act.”

The Copyright Act gives copyright holders the exclusive right “to perform the copyrighted work publicly,” which means “in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”

Chin favorably cited a 2012 preliminary injunction order from the opposite coast involving Aereokiller, a not subtly named Aereo competitor.

In that case, Fox Television Stations, Inc. v. BarryDriller Content Systems, PLC, Judge George Wu of the U.S. District Court for the Central District of California blocked a broadcast-TV-to-Internet service. Like Chin, Wu found that the broadcasters’ exclusive public performance rights had been violated.

The California decision is on appeal and currently being briefed at the U.S. Court of Appeals for the Ninth Circuit. Numerous amici have filed briefs.

The Second Circuit is considering whether to rehear the Aereo case en banc. Chin’s forceful dissent and the fact that one of the judges in the majority was visiting make the full court’s review more likely. Numerous amici have also filed briefs in the Second Circuit.

No matter what happens in either circuit (or in related litigation popping up as Aereo and copycat services expand), a Supreme Court petition is likely, given the financial stakes on both sides.

If the split in authority holds, the issue could be attractive to the Supreme Court. It could also warrant review as an important federal issue affecting a significant industry and consumers nationwide.

Congress could also step in to either nix or allow Aereo-like service by amending the Copyright Act.

FOX’s parent company has stated publicly that it would consider making FOX a pay channel if Aereo is allowed to continue. At least one other network is hedging its bets.

In April, CBS announced that it had purchased a minority interest in Syncbak, which streams broadcast programming live to various devices, in partnership with local television stations.

If other networks follow suit and look for new options, consumers could end up winning, regardless of who wins in court.

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

In May, I was at the U.S. Supreme Court for opinion announcements and will also be there in June. Each week is going to get more exciting, and I'll be commenting after each session via Twitter. Here are a few shots from SCOTUS in May. Look forward to bringing you the sights and sounds in June. See you on Monday.

Supreme Court Plaza

Black robes and black cabs: Could go this way, could go that way

Display of confiscated doodles

Spiral staircase

No scrim on the "other" side of the Court

And that's a curtain for now. See you at SCOTUS on Monday!

 Click on any of the photos to enlarge.

Argument Audio: The Four Holdout Circuits

Most federal appellate decisions are final, and arguments are an important part of that process. See "Before Supreme Court TV, How About This?" More and more, courts are opening these public proceedings to the public, via the Internet.

On Wednesday, Appellate Daily was able to announce that the D.C. Circuit will post argument audio online, starting in September. The D.C. Circuit joins the U.S. Supreme Court and eight federal appellate courts that post audio online.

That leaves only four holdout circuits.

The Second, Sixth, and Eleventh Circuits offer audio CDs for purchase. The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed. In a phone call this week, the Tenth Circuit clerk's office said those motions are routinely granted.

A few notes on the future:

*The Tenth Circuit seems close to posting online. It already offers free e-audio, just not on its website. It's like the moment when a child is deciding whether to approach or back away from an unfamiliar animal. The Tenth Circuit is curious, but wants to make sure this animal doesn't bite. I think the court will find it doesn't and make the change.

*Perhaps a year ago, I phoned the Second Circuit to inquire about the status of its audio policy. At the time, the clerk's office said that the idea of online access had been floated, but that the court was in the process of a renovation. Once that work was done, the clerk's office said, the court would be in a better position to take up the question. With the renovation now complete, will the Second Circuit increase access?

*The Eleventh Circuit has already made significant progress. Its previous policy was even worse than the D.C. Circuit's: no public access (even for parties and even for closed cases). In 2010, I wrote letters to several circuits, asking for online access to argument audio. Eleventh Circuit Chief Judge Joel Dubina kindly responded that the court would consider the idea, though it did not make immediate change. In 2012, the Eleventh Circuit began offering audio CDs for purchase. With the big leap to public audio already made, perhaps the court will be open to posting online, now just an incremental change? [fn1]

*Posting online would save court staff time in these four circuits. Staff in "CD" circuits would not have to produce CD copies and mail them. The Tenth Circuit could avoid reviewing motions and sending emails. All four circuits could field fewer calls and process fewer forms. Interested parties could just point and click online.

Stay tuned.
____
1) The Fourth Circuit also kindly responded to the 2010 letter and took action within months to put audio on the Internet. As with all courts, the Fourth Circuit undoubtedly had been thinking about changes, independent of outside voices. But it is heartening that the courts do consider citizen viewpoints.

Hypothesis About D.C. Circuit Vacancies

I have a hypothesis (not tested by research yet) that one of the reasons the D.C. Circuit vacancies have ballooned to four, and three of them have dragged on for years, is that D.C. does not have voting Senators.

Other circuits have Senators for the states within them. Voters and others can question those Senators about what they are doing to move the process along. The Federal Circuit is also Senator-less. But its nominees face less opposition, since it is a specialized court and not typically viewed as a farm team for the Supreme Court, as the D.C. Circuit is.

D.C. Circuit Will Post Audio to the Internet

Chief Judge Merrick B. Garland kindly responded today to my letter of yesterday.

The D.C. Circuit has voted unanimously to begin posting audio to its website. The court actually voted last week to make the change, so I can't take any credit. But I do get to announce it!

Here are some of the details:

     *The new policy goes into effect on September 9, the start of the D.C. Circuit's 2013-2014 Term.

     *Audio will be available by 3:00pm on the same day as the oral argument, on the D.C. Circuit website.

     *An archive going back to the 2007-2008 Term will also be available.

This is a great development for public access to one of the nation's most important courts.

Letter to D.C. Circuit Re: Audio Access Policy

This letter was sent today to Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

Dear Chief Judge Garland:

After reading the D.C. Circuit’s new media policy, which welcomes media coverage of cases to inform the public, I am writing to ask for your consideration of a related matter: access to argument audio.  My interest is as a lawyer, freelance journalist, and citizen.

The U.S. Supreme Court and eight federal appellate circuits make argument audio available in pending cases, via their websites, free of charge.  Five circuits, including the D.C. Circuit, do not.

Of those five circuits, the D.C. Circuit’s policy is the most restrictive, granting no public access until a case is closed.  The Second, Sixth, and Eleventh Circuits make audio available in pending cases, via CD purchase.  The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed.  Per a call to the Tenth Circuit clerk’s office this morning, those motions are routinely granted.

The D.C. Circuit hears cases that affect citizens throughout the country; as a current example, the recess-appointments matter.  Members of the media who do not happen to be in D.C. are not able to listen to and report on D.C. Circuit arguments.  There are also interested members of the public and the legal community in other parts of the country who would like to listen to and inform themselves directly of these crucial, public proceedings, but are unable to do so.  The courtroom cannot always accommodate all interested persons in D.C., either.

This gap of public access is particularly notable since the Supreme Court, famously cautious on access, has been posting its audio to the web since 2010.  The nearby Federal and Fourth Circuits both post audio to the web.

It would be a meaningful step forward for public information, if the D.C. Circuit would review its current policy and join the Supreme Court and most of its sister circuits in offering free access to argument audio online.

Thank you for your consideration.

Victoria Nourse: D.C. Circuit Nominee?

A few weeks ago, Senator Harry Reid said that he expected President Obama to nominate three more people to the U.S. Court of Appeals for the D.C. Circuit soon.

That hasn't happened yet, but it got me thinking about the people he might nominate.

Could Victoria Nourse be in that group?

In July 2010, Obama nominated Nourse to a Seventh Circuit seat in Wisconsin. She was then a law professor at the University of Wisconsin, as well as former counsel to the Senate Judiciary Committee and its chair, then-Senator Joe Biden.

After one of the home state senators blocked her nomination by not returning his blue slip, she withdrew in January 2012.

Subsequently, Nourse left Wisconsin Law, where she had been a professor since 1993, and became a professor at Georgetown Law in Washington, D.C. (She had also been a visiting professor at Georgetown previously.)

See where I am going with this?

Info
*Nourse's current bio is here.
*A 2011 letter from a bipartisan group of scholars supporting her Seventh Circuit nomination is here.

Circuit Split Watch: Will the Court Bury Casket Cases?

This article first appeared in the April 23, 2013, issue of the National Law Journal’s Supreme Court Brief.

The Benedictine monks of St. Joseph Abbey in southern Louisiana make and sell wooden caskets to support their monastery. State regulators are not happy about it, though, because they say the monks need a license.

The U.S. Court of Appeals for the Fifth Circuit recently ruled for the monks, adding to a circuit split on licensing for casket sales. The U.S. Supreme Court could be asked to weigh in soon.

For more than a century, St. Joseph has been making caskets to bury its monks. In response to requests and a need for more income, the monks began offering wooden caskets for sale to the public in 2007, at below the national average cost. They come in two simple designs; one is no more than a nice wooden box with handles.

“My husband really wanted to have a simple burial. He lived life simply, and he wanted to have just a simple wooden coffin. And so, the monks were able to provide that service for us,” explains a customer in an Institute for Justice (IJ) video. IJ, a libertarian public interest law firm based in Arlington, Virginia, represents the monks.

The Louisiana State Board of Embalmers and Funeral Directors ordered St. Joseph not to sell the caskets. Under Louisiana law, only a licensed funeral home with a licensed funeral director can make such sales. Violators can be fined and even jailed.

To be licensed, funeral homes must have facilities for embalming and preparing bodies, while directors must be apprentices for a year, among other requirements.

The monks admit they are not licensed, but argue that they do not embalm or provide other funeral-related services. They just want to sell caskets.

The regulating Board has nine members, eight of whom are either funeral directors or embalmers. “The State is going after the monks because licensed funeral directors want the casket market to themselves,” Jeff Rowes, an attorney for the monks, contends in an IJ video.

St. Joseph sued the Board in federal court, alleging that the requirements for casket sales are unconstitutional.

On March 20, the monks won in the Fifth Circuit. St. Joseph Abbey v. Castille said that states can regulate business. The court “insist[s] only that Louisiana’s regulation not be irrational—the outer-most limits of due process and equal protection.” The Board “offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none.”

Granting funeral homes “an exclusive right of sale adds nothing to protect consumers and puts them at a greater risk of abuse including exploitative prices,” the Fifth Circuit held. The court also noted that Louisiana does not regulate the construction or design of caskets. In fact, a person can be buried with no casket.

IJ also represented casket sellers in challenges to similar laws in Tennessee and Oklahoma, winning in the Sixth Circuit in 2002 and losing in the Tenth Circuit in 2004. The sellers in those cases were not monks, but business people who, like the monks, wanted to sell caskets, but were not licensed.

In Powers v. Harris, the Tenth Circuit upheld Oklahoma’s casket-sale law, mainly out of deference to the legislature. The court was uncomfortable “substituting [its] view of the public good or the general welfare for that chosen by the states.” A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks’ Fifth Circuit win and a refreshed circuit split.

IJ attorneys assert in a recent op-ed that the issue goes beyond caskets to the broader question of how far states can go to favor certain businesses.

A petition for rehearing en banc in the Fifth Circuit was recently denied.

The Big Week at SCOTUS: What Stands Out Most

I did one final guest post about the historic U.S. Supreme Court arguments on same-sex marriage over at Above the Law, linked here.

DOMA Arguments at SCOTUS: Five Money Quotes

I did another guest post for Above the Law, linked here. This one is a short piece with some quotes from the Defense of Marriage Act arguments today at the U.S. Supreme Court.