Category Archives: Courts

Conquerors of the Courts

Source: David Montgomery, Washington Post Magazine, January 2, 2019

Forget Trump’s Supreme Court picks. The Federalist Society’s impact on the law goes much deeper.

…. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett Kavanaugh, whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society. They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events). The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

But having allies on the highest court of the land is just the top layer of the Federalist Society’s expanding sway. For one thing, there is the judicial nomination process itself. When Trump was campaigning in 2016, he made the shrewd and un­or­tho­dox move of publicizing a list of 11 conservative legal stars that he promised to draw from if he got a chance to pick a Supreme Court justice. Leonard Leo, executive vice president of the Federalist Society, played a key role in suggesting the names, along with Trump’s future White House counsel, Don McGahn (also a society member), and the conservative Heritage Foundation. The list was expanded twice to include Gorsuch, Kavanaugh and others. Leo took a leave from his job at the Federalist Society to advise the White House on the confirmation process for Gorsuch and Kavanaugh — reprising a role he played for the George W. Bush White House in putting Roberts and Alito on the court.

The next most important segment of the judiciary — the federal appeals courts — is also filling up with Federalist Society members: Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society ….

How to Save the Supreme Court

Source: Daniel Epps, Ganesh Sitaraman, Vanderbilt Law Research Paper 18-65, Last revised: December 10, 2018

From the abstract:
The consequences of Brett Kavanaugh’s confirmation to replace Justice Anthony Kennedy on the Supreme Court are seismic. The new conservative majority that Kavanaugh completes represents a stunning victory for the Republican party after decades of effort by the conservative legal movement. The result is a Supreme Court whose justices—on both sides—are likely to vote along party lines more consistently than ever before in American history. That development presents a grave threat to the Court’s legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court to render impartial justice, the Court’s ability to reach settlements of important questions that all Americans can live with is serious jeopardy. Raising the stakes even higher, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further tit-for-tat escalation that would leave the Court’s image, and the rule of law, badly damaged.

The coming crisis can be stopped. But preserving the Court’s legitimacy as an institution above politics will require a complete rethinking of how the Court works and how the Justices are chosen. To save what is good about the Court, we must reject and rethink much of how the Court has operated for more than two centuries. In this Essay, we outline a framework for thinking about saving the Supreme Court, evaluate existing proposals, and offer two distinct reform proposals of our own, which we call the Supreme Court Lottery and the Balanced Court. Whether policymakers adopt these precise proposals or not, however, it is imperative that they search for some kind of reforms along these lines. Saving the Court—by transforming the Court—is our best hope.

Caselaw Access Project

Source: Caselaw Access Project, 2018

The Caselaw Access Project (“CAP”) expands public access to U.S. law.

Our goal is to make all published U.S. court decisions freely available to the public online, in a consistent format, digitized from the collection of the Harvard Law Library.

What data do we have?

CAP includes all official, book-published United States case law — every volume designated as an official report of decisions by a court within the United States.

Our scope includes all state courts, federal courts, and territorial courts for American Samoa, Dakota Territory, Guam, Native American Courts, Navajo Nation, and the Northern Mariana Islands. Our earliest case is from 1658, and our most recent cases are from 2018.

Each volume has been converted into structured, case-level data broken out by majority and dissenting opinion, with human-checked metadata for party names, docket number, citation, and date.

We also plan to share (but have not yet published) page images and page-level OCR data for all volumes.

On the Supreme Court, difficult nominations have led to historical injustices

Source: Calvin Schermerhorn, The Conversation, September 28, 2018

Far from being unusual, the hurried and partisan Supreme Court confirmation process for Brett Kavanaugh mirrors several notable examples of similarly politicized confirmations in U.S. history.

Those conflicts, which ultimately placed justices on the court, yielded some of the most damaging civil rights decisions in our nation’s history.

Unlike any other branch of government, Supreme Court justices do not have to face voters at the polls. They have no term limits. Yet the high court is the final arbiter of constitutional rights and protections.

Controversial appointees who were rammed through hearings, or political careerists nominated for strategic reasons and confirmed despite scant vetting, handed down decisions that expanded slavery and rolled back civil rights.

Bad processes do not by themselves yield bad decisions. There have also been thinly vetted justices who have protected and extended civil rights, but such cases are in a minority.

Records, Papers, Decisions: Kavanaugh Records and the Presidential Records Act

Source: Meghan M. Stuessy, Congressional Research Service, CRS Insight, IN10959, August 27, 2018

Since Judge Brett Kavanaugh’s nomination to be an Associate Justice of the Supreme Court was received on July 10, papers detailing his activities in the George W. Bush Administration and the Office of Independent Counsel Kenneth W. Starr have been the subject of ongoing congressional interest. Specifically, many Members of Congress have discussed the public release of Judge Kavanaugh’s records and whether the scope and volume of records released is similar to the records of previous Supreme Court nominees.

The release and maintenance of records pertaining to Judge Kavanaugh’s tenure in these offices is governed by the interaction of the Federal Records Act, the Presidential Records Act (PRA), and the Freedom of Information Act (FOIA). While the Federal Records Act applies to all federal records, such as Judge Kavanaugh’s attorney work files from his tenure with the Office of Independent Counsel, the PRA applies only to records created on behalf of a president, such as records created during the George W. Bush Administration….

Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change

Source: Michael A. Foster, Congressional Research Service, CRS Legal Sidebar, LSB10191, August 24, 2018

Central to the calculation of a federal criminal defendant’s sentence under the United States Sentencing Guidelines (Guidelines) is the defendant’s “relevant conduct.” That term, while encompassing conduct found by a jury or admitted by the defendant, can also include conduct that was not charged, as well as the conduct underlying charges of which the defendant was acquitted. The lower federal courts have almost uniformly approved of the use of acquitted or uncharged conduct at sentencing, so long as a judge finds by a preponderance of the evidence that the conduct occurred. The Supreme Court has also held that the use of acquitted conduct pursuant to the Guidelines presents no double jeopardy issue under the Constitution. Judicial fact-finding at sentencing has not been without its critics, however; legal commentators and multiple Justices have expressed misgivings about the continued judicial reliance on such conduct to increase sentencing ranges under the Guidelines, largely focusing on the constitutional right to a jury trial. In fact, both of President Trump’s nominees to the Supreme Court— Justice Gorsuch and, most recently, Judge Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit— have suggested during their tenures as Circuit judges that they may view judicial fact-finding at sentencing to be constitutionally problematic. Two bills have also recently been introduced in the House of Representatives that would alter the practice legislatively. Given the possibility of judicial or legislative changes in this area of criminal sentencing law, this Sidebar provides an overview of the issue by briefly describing the use of relevant conduct under the Guidelines and tracing the Supreme Court case law that has informed the practice, before addressing judicial commentary and recently proposed legislation regarding the use of acquitted or uncharged conduct at sentencing….

Calling Balls and Strikes: Ethics and Supreme Court Justices

Source: Cynthia Brown, Congressional Research Service, CRS Legal Sidebar, LSB10189, August 20, 2018

At his confirmation hearing in 2005, Chief Justice Roberts famously described his view of judges as umpires, pledging that, if confirmed, he would “call balls and strikes” when applying the law. Chief Justice Roberts emphasized the constitutional structure that underpins the Supreme Court and the rest of the federal judiciary, which is based on independence from political influence. The Court’s independence and its insulation from political influence is a perennial issue, which has received heightened attention with Judge Brett Kavanaugh’s pending nomination. What mechanisms ensure the integrity of Justices as federal officials? Are Justices subject to any rules of ethical conduct? How might such ethics rules be enforced? This Sidebar examines these questions and Congress’s potential role in regulating the ethics of the Supreme Court Justices…..

Supreme Court Nomination: CRS Products

Source: Andrew Nolan, CRS Legal Sidebar, LSB10160, August 24, 2018

On June 27, 2018, Justice Anthony M. Kennedy announced his retirement from the Supreme Court, effective July 31, 2018, ending a thirty-year tenure on the Court. On July 9, 2017, President Trump nominated Judge Brett Kavanaugh of the federal Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court created by Justice Kennedy’s retirement.

Below are key CRS products on the judicial decisions of Justice Kennedy and Judge Kavanaugh, as well as information on Supreme Court vacancies and nominations…..

Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court

Source: Andrew Nolan, Caitlain Devereaux Lewis, Congressional Research Service, CRS Report, R45293, August 21, 2018

This report provides an overview of Judge Kavanaugh’s jurisprudence and discusses his potential impact on the Court if he were to be confirmed to succeed Justice Kennedy. In particular, the report focuses upon those areas of law where Justice Kennedy can be seen to have influenced the High Court’s approach to certain issues or served as a fifth and deciding vote on the Court, with a view toward how Judge Kavanaugh might approach these same issues if he were to be elevated to the High Court. Of particular note, the report includes an Appendix with several tables that summarize the nominee’s rate of authoring concurring and dissenting opinions relative to his colleagues on the D.C. Circuit, and how Judge Kavanaugh’s opinions as an appellate judge have fared upon review by the Supreme Court.

Compelled Subsidies and the First Amendment

Source: William Baude, Eugene Volokh, Harvard Law Review (2018 Forthcoming), Date Written: July 29, 2018

From the abstract:
Sometimes the government compels people to pay money to organizations they oppose. A lawyer may be forced to fund a bar association, a college student to fund student group activities, a public employee forced to fund a labor union. Unsurprisingly, people may bristle at such compulsion. Nobody likes having their money taken, and knowing that it will be spent on causes one opposes seems to add insult to injury. But when is it unconstitutional? For forty years, the Court has unanimously concluded that being required to pay money to a union, or to a state bar, is a serious burden on one’s First Amendment rights. This burden, the Court has held, is generally unconstitutional when the money is used for most kinds of political advocacy. In Janus v. AFSCME, a majority of the Court went further, and held that requiring public employees to pay union agency fees is categorically unconstitutional, even when the money is used for collective bargaining. Such public-sector collective bargaining, the majority held, is itself inherently political. And the government interests in mandating such payments don’t suffice to justify such requirements. There was a strong dissent by four Justices, but as we discuss in Part I, we think the majority had the better argument on both of these two points. But we think the majority — and for that matter the dissent, and the unanimous opinions in Abood v. Bd. of Ed. and Keller v. State Bar — erred on the preliminary point. The better view, we think, is that requiring people only to pay money, whether to private organizations or to the government, is not a First Amendment problem at all. The employees in Janus were not compelled to speak, or to associate. They were compelled to pay, just as we all are compelled to pay taxes; our having to pay taxes doesn’t violate our First Amendment rights, even when the taxes are used for speech we disapprove of — likewise with having to pay agency fees. If we are right, as we argue in Part II, then the result in Janus was wrong. In Part III, we turn from evaluating the decision to anticipating its consequences. We doubt Janus will have significant effects on government speech rights (Part III.A), but it will likely bar the funding of other forms of private speech. Janus will likely extend to a prohibition on state bar dues, at least so long as the bar is seen as sufficiently removed from other government agencies (Part III.B). It might also include constraints on public university student governments’ use of student activity fees, though universities can create accounting workarounds that will practically allow such student activity funding to continue (Part III.C). Finally, and perhaps most consequentially, Janus may lead to massive liability for unions that have collected the agency fees that are now viewed as unconstitutional. (Part III.D). Though the fees were seen as valid when collected, the Supreme Court’s precedents say that constitutional reversals in civil cases are generally retroactive, so everyone in Janus’s shoes can get agency fee refunds just as Janus himself could (at least so long as the statute of limitations has not lapsed). Moreover, private organizations such as unions are generally not entitled to qualified immunity or similar defenses. While the unions do have some possible arguments to mitigate the damages or try to claim a special form of good faith, those defenses are speculative, and cannot be counted on.