I am positive that Biden's first priority is to choose a Justice who will vote essentially the way Breyer has been voting on politically sensitive matters. After all, 3-6 is not a great hand, but it is better than 2-7. He has said that he will pick a black woman because it helps him with much of his base and because he is confident he can do it without compromising that prime directive. None of this is complicated, though it seems to have set off the predictable conniptions among those for whom having conniptions is part of a business model. There is nothing distinctive about specifying demographic classifications in this way. LBJ nominated Thurgood Marshall, the first black Justice, in August 1967. His key Civil Rights legislation, won by breaking filibusters, were fresh memories and for some fresh wounds. Nobody bothered pretending the Marshall nomination was not race conscious. To make this a bipartisan point we need only note that Ronald Reagan said during the 1980 presidentia...
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The United States seems to have lost a comforting illusion. The Republican trickery of keeping a seat open for a year until their own guy could fill it, then four years later rushing through a confirmation because ... the next guy couldn't be allowed to fill it -- this has been rather hard on the notion that Supreme Court Justices are in some important sense above the grubby world of politics. Should we regret the loss of that illusion? In a book I wrote decades ago, about the history of the politics of the Supreme Court, focusing on the period from FDR to George H.W. Bush, from the court-packing plan to the Clarence Thomas hearings, I took a broad position I called "minimal formalism." A full-blooded or maximalist formalist would answer "yes" to this question. Indeed, he would probably say, "It has not always been an illusion, for important parts of American history it has been the truth -- we should regret, first, the fact that it became an illusion and...
It now appears that the electoral college may be effectively undermined without the need for invoking the cumbersome constitutional amendment process. The process is underway, and the late term decision this year by the US Supreme Court helped. After all, what would happen if each state bound its electors to vote for whichever candidate won the largest number of popular votes? SCOTUS' decision suggests (although this cannot be described as the res judicata) that the states can do pretty much whatever they want in this respect. If every state does this, then every subsequent electoral college outcome will be the same: a unanimous ratification of the popular vote. I'm not sure how long the institution will survive as a purely ceremonial matter once this outcome becomes obvious, but it hardly matters. There are surely people who will consider it an honor to be one of those casting these pre-ordained ballots, the constitutional letter will be observed, and the actual popular ...
A few days ago the US Supreme Court refused to take an appeal from a 9th Circuit case that took a constitutional stand for homeless people. The 9th Circuit sad that it is cruel and unusual punishment for the city of Boise, pursuant to authority from the State of Idaho, to criminalize sleeping in outdoor public places such as parks and sidewalks. SCOTUS refused to take that up. What are we to make of this? I offer the following thought. This is yet another piece of evidence that the deliberations of SCOTUS are not what the ideologues always make them out to be. Ideologues of left and right count heads -- five appointed by Presidents of Party left, 4 appointed by members of Party right. Ah, the decisions will naturally be leftward, as ideologues understand it. Or, if the count comes out the other way, so will the results. Even most ideologues will sometimes admit that there are lots of issues before the court that don't offer themselves neatly as left-versus-...
The US Supreme Court is back to hearing cases. On its very first day of the new session, it heard a dandy. KAHLER v. KANSAS asks whether, especially in the context of capital punishment, a state can constitutionally take the insanity defense off the table. The 14th amendment to the US Constitution provides that “no state shall … deprive any person of life, liberty, or property, without due process of law.” The Supreme Court has long held that the due process requirement is most stringent for the first of those threats, a proposed deprivation of life: that is, there is a “super due process” required for application of the death penalty. In a matter that the Court will hear Monday, lawyers for a death row inmate will argue that a Kansas law abolishing the insanity defense in a capital matter deprived their client of this necessary super due process of law, and they will ask that his sentence be overturned. You might say, "ah, surely with the two new Trump appoi...
The US Supreme Court decided three cases this term that speak to the issue of mandatory arbitration clauses. Two of them arose in the context of employment. The "odd case out" here, a piece of commercial arbitration between two businesses, came down on January 8, when SCOTUS announced its opinion in Henry Schein v. Archer. This was a unanimous opinion saying that there is no "wholly groundless" exception to the general rule that the arbitrator gets to decide the threshold question of arbitrability. Henry Schein arose out of a dispute between a business that distributes dental equipment and one that manufactures such equipment. I mention this -- indeed I mention the case itself, chiefly to encourage reflection over a sort of knee-jerk reaction one encounters to employment arb cases. "Oh, there is such a gross disparity of bargaining power here! The employer needed a job and signed the contract of adhesion they put in front of him to get it!" I...
Once again I pick up a weighty mantle and place it upon my willing shoulders -- I will again review for you, my beloved readers, the term of the US Supreme Court just passed. This one will be remembered as the term that began with credible rape allegations against President Trump's nominee for an open position on the court, and that ended at about the same time a woman was publishing credible accusations of rape by President Trump himself. It is perhaps weirdly appropriate then that this term, more than other recent terms, has been concerned with issues of the constitutional questions raised by criminal procedure. We'll get to some of them Saturday. This term, too, began with a sense in many quarters that a fatal balance had been tipped. With Kavanaugh, there are now two Justices appointed by Donald Trump, who presumably are inclined to combine with the three who were appointed by one or another of the Presidents Bush. That adds up to five votes. But Supreme Court de...
From a discussion of the Garza case recently argued before SCOTUS, I see this passage: http://www.scotusblog.com/2018/10/argument-preview-can-a-criminal-defense-lawyer-refuse-to-file-an-appeal-from-a-guilty-plea-because-of-an-appeal-waiver/ "In support of its underlying objective of promoting the broad enforceability of appeal waivers, the state strongly implies that this case is governed by a simple syllogism. Ineffective assistance of counsel presumes the existence of a right to counsel. The right to counsel has to be attached to some underlying procedural right, such as the right to trial or the right to appeal. Here, however, Garza waived his right to appeal. Thus, his attorney could not possibly have rendered ineffective assistance with respect to any appeal." I don't see the syllogism in that passage, though there is clearly a claim that a "simple syllogism" is involved. The syllogism that the author has in mind might be a modus ponens , thu...
I haven't done a lot of research into the particulars of his life and work. What I know, I know third hand. But I once did a fair amount of research into the history and politics of SCOTUS confirmations in general, and on that basis I have an opinion. But I do hope that a majority can be found to vote against his confirmation to SCOTUS. Why? Well, largely because intriguing things happen when a Republican POTUS gets rejected twice running in an effort to fill a SCOTUS spot. So I hope Kavanaugh is rejected, then whoever else is nominated is also rejected, then ... we'll see who number three is. Intriguing things happen in that circumstance. Nixon tried Haynesworth. Didn't get confirmed. Tried Carswell, didn't get confirmed. Third try ... Harry Blackmun. Reagan tried Robert Bork. No confirmation, Then tried Doug Ginsburg, No confirmation, Third try ... Anthony Kennedy. Hey, Dems, the goal isn't to imitate the obstructionism you (rightly) criticized in 20...
As noted yesterday, today we'll discuss Wisconsin Central v. US, the SAS Institute case, and Chavez-Meza v. US. These deal, respectively, with the definition of "compensation" for tax purposes, patent law administrative challenges, and the use of the sentencing guidelines. Coming off of the dispute we discussed yesterday, which placed employees and management in stark opposition, Wisconsin Central may seem refreshing and even wholesome: a private company and its employees working together to oppose a government encroachment on their dealings (successfully, it turns out.) Actually, various subsidiaries of the Canadian National Railway Company sued the United States for a $13 million tax refund. Their attorneys argued on the basis of the language in the Railroad Retirement Tax Act, which says that the compensation to be taxed includes "any form of money remuneration paid to an individual for services rendered as an employee." The US has been tax...