The New Republic on Tom Goldstein
The latest issue of The New Republic profiles Tom Goldstein of Goldstein & Howe. (UPDATE: The story is now available online here.) The story, by Noam Scheiber, makes the provocative claim that Tom Goldstein has had a profound influence on the “norms and culture” of the Supreme Court:
Since the death of Rehnquist, legal scholars and pundits have endlessly debated whether or not we’re on the brink of a Roberts Court or an Anthony Kennedy Court (after the swing-voting justice) or even a John Paul Stevens Court (after the liberal icon who is its longest-serving member). And, if the measure of influence is one’s effect on the Court’s jurisprudence, then that’s a debate that rightly continues. But, if the proper measure of influence is the extent to which one has shaped the Court’s norms and culture, then there is no debate at all. It’s not Roberts’s Court, nor even Stevens’s. It is Tommy Goldstein’s.
With all due respect to Tom (and much is due), I think this claim is considerably overstated. Scheiber is confusing the Supreme Court with the Supreme Court bar, and is skipping past other changes like the role of state SGs.
At the same time, Scheiber does make a very interesting claim about Tom’s impact on the Supreme Court’s docket. The claim is that Tom’s aggressive search for circuit splits has led the Justices to grant certiorari in lots of cases that wouldn’t have been granted a decade ago. These days, the thinking goes, appellate lawyers looking for Supreme Court experience try to take worthy cases to the Court regardless of whether anyone can pay the bill. The result is that the Court handles more cases by clients with limited means:
Compare the Court’s docket during, say, the mid-’90s with the docket of the last three or four terms—after Goldstein hit his stride. What you find is an important difference in the kinds of cases that have been appearing before the Court: There are significantly more cases involving private citizens with limited means, small businesses, and cash-strapped institutions like the city of Los Angeles.
These, of course, are classic Goldstein clients. But, these days, he’s not the only lawyer snatching up their cases. A generation of imitators has followed suit. More and more firms are adopting Goldstein’s methods to lure even lowerpaying clients.
This is a very interesting claim. It’s partially tied to the shrinking of the Court’s docket, I think: As the Court takes fewer cases, simply having a case before the Court becomes more valuable. In that environment, any effort to get such a case becomes worthwhile. But Scheiber may be right that Goldstein started the trend. I’d be interested in reader thoughts on this, particularly from readers who have followed the Supreme Court’s docket for a long enough time to compare the pre-Goldstein era to the post-Goldstein era.
Last but not least, congrats to Tom Goldstein for the coverage!
Justice Kennedy, the Separation of Powers, and the War on Terror
Yesterday I linked to what I described as “the key moment in the Hamdan argument,” and today I want to explain why I think that moment is particularly important.
As most readers know, Justice Kennedy is expected to be the critical vote in the Hamdan case. We can pretty much assume that Justices Stevens, Souter, Ginsburg, and Breyer will vote against the Administration. And based on the oral argument, past opinions, and, in one case, a certain speech in Switzerland, it also seems quite likely that Justices Scalia, Thomas, and Alito will vote in favor of the Administration. This means that Kennedy has the key vote; if he votes to reverse, he is probably the fifth vote. With Justice Stevens in control of the opinion (as the most senior Justice in the majority), he would probably assign the opinion to Kennedy.
What kind of opinion would Justice Kennedy write? If you look over Justice Kennedy’s past opinions on the role of the courts in international affairs, Kennedy has charted out a pretty consistent course. In this context, Justice Kennedy tends to eschew bright line rules in favor of a functional and pragmatic framework: The role of the courts is determined by a pragmatic balancing of interests, and the courts play a role to the extent such a role needed to uphold the rule of law value of the courts without unduly interfering with the other branches.
The most obvious example of this balancing approach is Justice Kennedy’s concurrence in Rasul v. Bush, the first Guantanamo opinion in 2004. Justice Kennedy’s opinion is focused on maintaining a balance in which all three branches play a role. On one hand, “there is a realm of political authority over military affairs where the judicial power may not enter,” where executive interests are at the utmost. On the other hand, “there are circumstances in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated.” The difference between the two is a functional one, implicated by context: in the Rasul case, the key issues were whether the place of detention was more like a battlefield and whether there were important judicial issues to resolve. The framework is very much a multi-factor balance, based on whether a judicial function would “align[] with the traditional function of habeas corpus” and whether the military needs could coexist with a judicial role.
You can see a similar framework 15 years earlier in Justice Kennedy’s concurrence in United States v. Verdugo-Urquidez, which considered whether a Mexican national had Fourth Amendment rights in the search of his home in Mexico arranged by United States officials. Although Justice Kennedy signed on to Rehnquist’s bright-line ruling, Kennedy’s concurrence suggested that the role of the courts in such cases should be flexible and pragmatic. “[W]e must interpret constitutional protections in light of the undoubted power of the United States to take actions to assert its legitimate power and authority abroad,” Kennedy wrote. At the same time, the Court could not eliminate constitutional protections altogether: ”The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution.” A warrant wasn’t required under the Fourth Amendment not because the defendant was entirely unprotected by the Fourth Amendment, but because “[t]he conditions and considerations of this case would make adherence to the Fourth Amendment’s warrant requirement impracticable and anomalous.”
I think we can even see this pragmatic approach when Justice Kennedy was on the Ninth Circuit. In United States v. Peterson, 812 F.2d 486 (9th Cir. 1987), then-Judge Kennedy decided a case involving wiretapping in the Phillipines by a joint U.S-Phillippines task force. I’m not positive about this, but as far as I can tell, there were no prior cases on what type of legal framework would apply to such a case: there was a lot of room to establish new law in the case. Faced with wiretapping abroad by a joint U.S. and foreign investigation, Kennedy did not hold that the Fourth Amendment was completely inapplicable. Nor did he impose a strict warrant requirement. Rather, Judge Kennedy held that the standard was reasonableness, and that the reasonableness of the monitoring was to be determined by reference to the applicable foreign law. The foreign law provided the standard of reasonableness and therefore the legal standard U.S. investigators were required to follow.
Justice Kennedy’s pragmatic separation-of-powers approach explains why I think the exchange I quoted yesterday is particularly important. It suggests that Justice Kennedy sees an important role for the courts in the Hamdan case. When you consider that exchange in light of Kennedy’s prior opinions, it seems likely (at least to me) that he will vote to reverse.
Yale Law Journal Symposium Video Now Online
A video of the Yale Law Journal’s recent symposium on executive power is online. You can find all the links to the individual panels here, at Punch & Judy.
If you’re interested in watching the Kiwi Camara/Cass Sunstein/Ed Whelan panel that included the walkout, watch here. You can watch the panel on “Disempowered Voices in Legal Academia” here.
Great Stuff at SCOTUSblog
The always-excellent SCOTUSblog has been on a roll recently. If you’re not reading it, head over there and just keep scrolling.
The Key Moment in the Hamdan Argument
If I had to guess, the following exchange from yesterday’s oral argument in Hamdan v. Rumsfeld (which I have slightly edited from the court’s official transcript) is the best sign as to where the Court is heading in the case:
JUSTICE KENNEDY: I have trouble with the argument that [Hamdan cannot challenge the] structural invalidity to the military commission, that he brings that before the commission. The historic office of habeas is to test whether or not you are being tried by a lawful tribunal. And he says, under the Geneva Convention, as you know, that it isn’t.
GENERAL CLEMENT: Well, and we disagree with those claims. We think that most of those claims — to the extent that he thinks some procedural requirement is provided either by the Geneva Convention, if applicable –but we don’t think it would be — and that argument would be made; but, if by some other, sort of, principle of the law or that a procedure is required –
JUSTICE KENNEDY: Well, it’s not some procedural [requirement] — it’s the structural requirement of the composition and the appointing origins of the court.
* * *
JUSTICE SCALIA: We don’t — we don’t intervene on habeas corpus when somebody says that the panel is improperly constituted. We wait until the proceeding’s terminated, normally.
GENERAL CLEMENT: That’s exactly right, Justice Scalia.
JUSTICE KENNEDY: Well, is that true? If a group of people decide they’re going to try somebody, we wait until that group of people finishes the trial before the Court — before habeas intervenes to determine the authority of the tribunal to hold and to try?
GENERAL CLEMENT: Well, with respect, Justice Kennedy, this isn’t a “group of people.” This is the President invoking an authority that he’s exercised in virtually every war that we’ve had. It’s something that was recognized in the Civil War, something in the World War II that this Court approved.
JUSTICE KENNEDY: I had thought that the historic function of habeas — one of its functions — is to test the jurisdiction and the legitimacy of a court.
Thanks to Howard for the link to the oral argument transcript.
Quote of the Day
There are lots of classic quotations from Supreme Court cases that every lawyer and law student knows. I for one am very glad that the following line hasn’t become one of them:
“Yet, happily, all constitutional questions are always open.”
Source: Gideon v. Wainright, 372 U.S. 335, 346 (1963) (Douglas, J., concurring).
U.S. News Rankings and Copyright Law
Over at PrawfsBlawg, Dan Markel notes that his decision to post a scanned copy of the U.S. News ranking led to a call from the General Counsel’s office at U.S. News asking him to take down the .pdf he had scanned (which he has). There’s more in the comment thread at Concurring Opinions.
Here’s a question for the copyright types out there: Between the question of what is copyrightable under Feist, and what is fair use under 17 U.S.C. 107, how much information can a non-profit website (such as this one) post about the U.S. News rankings without running afoul of the copyright law? Assume the information is retyped and reorganized, not scanned in. Is just a list of the rankings permissible? The rankings with the overall scores? Rankings with the overall scores and peer assessment scores? Rankings with the overall scores, peer assessment scores, GPA range, LSAT range, and faculty-student ratio? I don’t know if the answers to these questions are clear, but I assume lots of people are wondering about them. If copyright experts out there can shed some light, the rest of us would appreciate it.
Sentencing Order in State v. Herchenbach
Last week, the Drudge Report picked up on a story in the Lincoln (Ne.) Journal-Star of a very interesting criminal case involving a college student sent to jail for 30 days for hosting a big party at his house. From the story:
Mike Herchenbach was sure he would get a fine. He’d pay a couple hundred dollars, like his roommates, and go on with his life, even though he wasn’t at the party that got out of hand at his rental house. After all, his name was on the lease.
But what he didn’t expect, and hardly believed, was what Lancaster County Court Judge Gale Pokorny had in mind as his punishment for maintaining a disorderly house last Oct. 2.
Herchenbach remembered his attorney from the University of Nebraska-Lincoln reaching for a work-release form, which would get him out of jail so he could work while serving his sentence.
He didn’t need it. It’s only a weekend, he remembered saying.
But Pokorny didn’t say three days in jail. He said 30.
The story indicated that the sentencing judge issued a written sentencing order explaining her decision, and so I contacted the journalist, Lori Pilger, asking if she might have a copy of the order that she could share. She very graciously agreed, and mailed me a copy of the 3-page order. I had it scanned in as a .pdf, and have posted it here: State v. Herchenbach Sentencing Order.
The sentencing order is probably of primary interest to other criminal law professors out there. Written sentencing orders applying the theories of punishment to a criminal case are rare, and first-year law students are likely to have unusually strong and deeply felt views about what kind of sentence is appropriate in a case like this. The opinion is not exactly the work of Learned Hand, but it’s a quick read and should lead to very engaging class discussion.
New U.S. News Law School Rankings
The new U.S. News & World Report law school rankings are out.
The folks at U.S. News always manage to change the numbers around just enough so that the rankings change and you need to buy the magazine to find out the latest. This year is no exception.
UPDATE: Original link via xoxohth.com, the #1 source for leaked U.S. News rankings three years running. Current link via Dan Markel.
Equal Justice Under Law?
It’s always hard to second-guess a state sentencing decision based only on press reports. You don’t know the details of the sentencing scheme, or the details of the factual findings. But I wonder what sentence this defendant would have received if she had been an African-American male who had dropped out of high school?
UPDATE: Brooks Holland weighs in with a very helpful comment here.
Hamdan audio on C-Span 3
The audio of the Hamdan argument is on C-Span 3 right now, and will be posted at C-Span (and elsewhere) later today for listening and subsequent mulling.
Ticketed for an Anti-Bush Bumper Sticker
Via Raw Story, I see the Atlanta Journal-Constitution is reporting about a woman in DeKalb County, Georgia, who received a $100 ticket for having an anti-Bush bumper sticker on her car:
It was 9:30 on a recent Friday night when Denise Grier saw blue lights in her rearview mirror.
“The officer asked if I knew I had a lewd decal on my car and I thought, ‘Oh gosh, what did my kids put on my car?’ ”
As it turns out, the decal was an anti-Bush bumper sticker Grier slapped on her 2001 Chrysler Sebring last summer. The bumper sticker — “I’m Tired Of All The BUSH—” — contains an expletive.
The officer “said DeKalb had an ordinance about lewd decals and wrote me a ticket” for $100, said Grier, an oncology nurse at Emory University Hospital who lives in Athens.
Grier said she thanked the officer — and vowed to see him in court
“This is all about free speech,” Grier said in a telephone interview Monday. “The officer pulled me over because he didn’t agree with my politics. That’s what this is about, not whether I support Bush, not because of the war in Iraq, but about my right to free speech.”
Officer Herschel Grangent Jr., a spokesman for the DeKalb County Police Department, confirmed the incident Monday but said he couldn’t “speculate on or discuss another officer’s decision to write a citation.”
I wonder what would have happened if the bumper sticker had read, “Fuck the Draft.”
Aaron Burr and Antonin Scalia, Acting Chief Justice
Today Justice Scalia was Acting Chief Justice, cracking jokes and posing tough questions as he sat in Chief Justice Roberts’ chair at the Supreme Court. No, you didn’t miss a palace coup — Scalia was literally “acting,” playing the role of Chief Justice John Marshall in a reenactment of portions of the Aaron Burr treason trial as part of the Tenth National Heritage Lecture hosted in part by the Supreme Court Historical Society.
It was a pretty entertaining event: former OLC head Chuck Cooper explained the historical setting of the case, former Department of Labor Solicitor and son-of-Nino Eugene Scalia represented the United States, and Bob Fiske represented Burr. Justice Scalia presided, playing the part of John Marshall.
For those who aren’t American history buffs, former Vice-President Burr was charged with plotting an insurrection designed to lead to a new independent nation in the Western territorities. At President Thomas Jefferson’s urging, Burr was indicted for the capital crime of treason. Article III, Section 3 of the Constitution states:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The most important legal issue in the Burr prosecution was figuring out what evidence the government could use to establish its case. The key problem was that the indictment was poorly drafted: It charged Burr with the overt act of leading an insurrection on a particular island where his troops were located, even though it turned out that Burr was hundreds of miles away at the time. Chief Justice Marshall had to decide whether the government could establish the overt act required for treason based on Burr’s conduct hundreds of miles away, or whether the government could only offer evidence of Burr’s conduct on the island.
After the arguments, Scalia discussed and commented on the opinion that Chief Justice Marhall wrote in the case, published as United States v. Burr, 25 F. Cas. 55 (Circuit Court, D. Virginia 1807). Scalia aptly described the opinion as discursive, indirect, filled with unneeded asides, but ultimately correct: Marshall held that the United States could only try to prove its case based on the evidence at the island, as otherwise it would gut the overt act requirement imposed by Article III, Section 3. According to Chuck Cooper’s post-argument wrap-up, Marhsall’s ruling effectively ended the government’s case. The United States had no evidence of an overt act on the island, so the jury had little choice but to acquit.
Interesting stuff. I knew that the Burr case was the first testing ground for a number of constitutional provisions relevant to criminal procedure, and I knew that Burr had been acquitted by the jury. I hadn’t known that the main reason for the acquittal was a poorly drawn indictment. For more about the trial, read here.
A few amusing moments from the reenactment: 1) Justice Scalia, instructing counsel for the United States (that is, his son) to proceed: “You may proceed, Mr. SCALL-yah. Am I pronouncing that correctly?” 2) Justice Scalia, responding to Eugene Scalia’s tongue-in-cheek comment that the Court should rule in the government’s favor because ‘it is a constitution we are expounding’: “That’s a good line. I need to write that down.”
Oh, and in case you’re wondering, counsel for Burr did not bring a recusal motion on the ground that opposing counsel was the presiding judge’s son.
Justice Jackson’s Unpublished Opinion in Ex parte Quirin
Jack Goldsmith has this fascinating article (.pdf) in the latest Green Bag. Thanks to Howard for the link.
Moussaoui Testifies
Al-Qaida conspirator Zacarias Moussaoui testified Monday that he and would-be shoe bomber Richard Reid were supposed to hijack a fifth airplane on Sept. 11, 2001, and fly it into the White House.
Of course, it’s hard to know whether he is telling the truth.
Inside the Minds of Articles Editors
Paul Caron has a preview of survey results forthcoming in the University of Pennsylvania Law Review on how student articles editors select pieces for publication.
It’s somewhat hard to know what to make of the preview, because (as I read Paul’s post) Paul is only providing a glimpse of a few results of the survey rather than an overall summary of its findings. Still, the preview is interesting: it suggests that lots of articles editors are influenced by proxies for article quality, such as prior publishing record and the author’s home institution. I trust none of this is surprising to most authors, many of whom have been law review editors themselves. Nonetheless, it will be helpful to have more solid data on these issues.
One important piece missing from the preview is the role of expedited review. My sense is that expedited review can act as an equalizing factor for authors with fewer proxies working in their favor. Articles editors often pay much closer attention if an article has offers from another journal, and (as a general rule) less prestigious journals are less demanding in terms of the proxies they seek. As a result, expedited reviews can be more meritocratic than the process of initial reads. That’s my impression, at least.
Finally, the heavy reliance on proxies by many student articles editors creates a significant opportunity for other editors. The proxies are imperfect, obviously (and some are even weaker than others.) This means that if an editor puts in the work and reads articles carefully, asks for faculty input, and doesn’t rely as much on proxies, she’ll have a good shot at picking up articles that are significantly better than the pieces published by competitor journals.
Will the Justices Divide 4-4 in Hamdan?
Over at SCOTUSblog, Lyle Denniston has an interesting post on the possibility that the Justices will reach a 4-4 tie in Hamdan v. Rumsfeld. (Chief Justice Roberts has recused himself, as he was on the D.C. Circuit panel below.) I think a tie is unlikely. Given the importance of the case, I think the Justices will go out of their way not to end up 4-4.
I revved up my SCOTUS 330CLe Model Crystal Ball (patent pending, with optional CD player), and it’s telling me that the Court will reverse 5-3. We’ll see if it’s accurate.
Scalia’s Comments on Guantanamo Detainee Rights
Marty Lederman has an interesting post on a recent talk by Justice Scalia in which he discussed the rights of Guantanamo detainees. I tend to agree with Ed Whelan that Scalia won’t recused himself in Hamdan based on this talk, as the comments he made were general and not directed at a specific lower court ruling.
WiFi Crime in Illinois
The Rockford Register Star has a story about a man who was convicted of a crime for using the unencrypted wireless network of a nearby non-profit agency without first obtaining the agency’s permission. The article doesn’t say, but I gather the prosecution was brought under the Illinois computer misuse statute, which prohibits unauthorized access to a computer. The prosecution appears to have been a largely symbolic one for deterrent effect: the defendant pled guilty and received a $250 fine plus a year of court supervision, and the prosecutors released statements to the press about how this should be a warning to others.
I have written a long law review article on when access to a computer network should be consider “unauthorized,” and I won’t repeat the argument here. But one of the interesting stories in criminal law in the last decade or so is the remarkably expansive interpretation courts have given to these new computer misuse statutes. Much of the problem is that the federal statute has civil remedies, and businesses have used these remedies to get federal jurisdiction in all sorts of spats over competitors and opponents. Courts are much more likely to construe the language broadly in civil cases than in criminal cases: it takes a lot less to convince a judge to stop a sneaky business practice than it does to convince a judge to put someone in jail for that practice.
A good example is the recent Posner opinion in International Airports v. Citrin, which adopts the remarkable position that an employee who uses his employer’s computer with a subjective intent to help his employer’s competitor is committing an unauthorized access under federal law. Under Posner’s view, the statute acts as sort of a nationwide employee loyalty test. Maybe there is an argument that this makes sense in civil cases, but it seems like an astonishing interpretation for a criminal statute.
Breyer on O’Connor
In a just-published law review tribute to retired Justice Sandra Day O’Connor, Justice Stephen Breyer offered this summary of Justice O’Connor’s approach to important cases like Grutter and Hamdi:
As these and many other O’Connor opinions make clear, the institutional considerations she has in mind are constitutional in nature. They arise out of the Framers’ efforts to create a Constitution that will in practice secure its permanent values for generations to come. In my view, Sandra O’Connor has an often unerring sense of how our nation’s democracy works. And that means that, whatever the debates that arise out of our Court’s decisions in any particular case, her opinions, taken as a whole, are properly seen to embody a balance, common sense and sound judgment necessary for our Court — and for the Constitution — to function well.