This week at the court

This week at the court

We expect orders from the February 16 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m. The court will hear oral argument on Tuesday in Currier v. Virginia and City of Hays v. Vogt and on Wednesday in Rosales-Mireles v. United States and Dahda v. United States. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their February 23 conference; our list of “petitions to watch” for that conference will be available soon.

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Petition of the day

Petition of the day

The petition of the day is:

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issues: (1) Whether, under the first-to-file bar of the False Claims Act, 31 U.S.C. § 3730(b)(5), later actions may proceed without refiling once all earlier action have been dismissed, or whether later actions must be dismissed and refiled; and (2) whether the first-to-file bar of the FCA is jurisdictional, and, if so, whether the bar applies only at the time of filing, or whether it may be lifted by amendment, supplement, or later events.

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Justice Thomas pleads for less “myth-making” of the court and justices

Justice Thomas pleads for less “myth-making” of the court and justices

In an op-ed Thursday in the Los Angeles Times, law professor Rick Hasen suggested that “there is something disconcerting about Supreme Court justices becoming political rock stars.” He cautioned against turning the justices into gods and devils. Hasen isn’t the only commentator addressing the hagiography of the justices. Speaking on Monday at the University of Pennsylvania Law School as part of a panel that included Justice Ruth Bader Ginsburg, Slate’s Dahlia Lithwick encouraged members of the media to reconsider recent portrayals of Ginsburg. She suggested that depictions of her as cultural icon and judicial celebrity reduce the complexity of her personality and contributions to the law.

Yesterday at the Law Library of Congress, Justice Clarence Thomas weighed in, echoing Hasen’s and Lithwick’s thoughts. Thomas said he regretted the “myth-making around the court and who we are” as justices and people, which has created a contrast between the “real world” of the Supreme Court and how it is portrayed outside the court. Judges and justices “don’t have the time, energy, or ink to engage in the narrative battles” ascribed to them by some in the media, Thomas said.

Journalists might write that a justice decided a case “callously” – especially a death penalty case – but “those are people who’ve never stayed up in the middle of the night voting on it,” Thomas continued.

Several times in his remarks with Judge Gregory Maggs of the U.S. Court of Appeals for the Armed Forces, Thomas spoke about Justice Antonin Scalia. He said that Scalia and he “trusted each other so much” because “getting it right was important to both of us.”

Thomas attributed this similarity with Scalia to their shared Catholic educations. He said that the “beauty of having gone to parochial schools is that they taught us that there was a right way to think about things,” whether physics, history, or other subjects.

Before turning to law, Thomas expected to become a priest. Discussing his decision to leave the seminary, Thomas explained that “it was 1968.” “Anyone here who was around in 1968 knows what that means. The wheels were coming off the wagons in a lot of ways.”

Although he never became a priest, Thomas said that “the sense of vocation never leaves you.” He approached the law as his new “calling.” Although he expected to practice law in Georgia after graduating from Yale Law School, he didn’t receive any job offers in Savannah or Atlanta.

He moved to Jefferson City, Missouri, “and if it weren’t for that I wouldn’t be on the Supreme Court,” Thomas said. “I’d be a tax lawyer or something.”

Thomas said of being a justice, “everything I do is in preparation for doing this job. If you’re called to do it, it consumes you.”

The reason for such effort stems from the justices’ duty to explain the court’s reasoning to the public. Thomas recalled his grandfather’s simple but wise admonition to him in childhood: “If it don’t make no sense, it don’t make no sense.”

Thomas compared judging to climbing a mountain. One sees more of the surrounding area at each higher elevation. The elevation in Thomas’ metaphor refers to experience. With each year, he said, “you see more, you understand more, not because you’re smarter, but because you’ve been doing it longer.”

Returning again to Scalia and the effort they and the other justices apply to their work, Thomas said simply, “we took an oath to do it.”

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Event announcement: The Supreme Court and wisdom of the crowds

Event announcement: The Supreme Court and wisdom of the crowds

On February 21 at 12:45 p.m. PST, Stanford University’s CodeX will host a presentation by Daniel Martin Katz entitled, “How Crowdsourcing Accurately and Robustly Predicts Supreme Court Decisions.” More information about this event, which will include remote access, is available at this link.

Relatedly, this blog is collaborating with Good Judgment to offer the SCOTUS Challenge, which invites forecasters to predict the outcomes of Supreme Court cases from this term. This opportunity for readers is available on the SCOTUS Challenge page.

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Friday round-up

Friday round-up


  • For the New Republic, Matt Ford suggests that by agreeing to review Gonzalez-Badillo v. United States, in which the petitioner argues that under the Fourth Amendment, “[h]is general acquiescence to a search of his bag … did not extend to the destruction of his personal property,” the court could “bring greater clarity to one’s constitutional rights during a consensual search.”
  • Constitution Daily reports that yesterday was the anniversary of the signing in 1879 of “a new law that would admit women as members of the Supreme Court bar and allow them to submit and argue cases at the high court.”
  • At Reuters’ On the Case blog, Alison Frankel explains why the Trump administration’s request to hear a challenge to a district-court order blocking the administration’s attempt to unwind the Deferred Action for Childhood Arrivals program before the court of appeals has ruled on the issue may be more of a long shot after the issuance this week of “a second nationwide injunction barring rescission of the DACA program.”
  • In an op-ed at The Hill, Anne O’Connor weighs in on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services, arguing that the Supreme Court should “take this opportunity to ensure that government cannot compel anyone to speak a message that violates their reason for being — especially when fundamental First Amendment rights are at stake.”
  • In an op-ed for the Los Angeles Times, Richard Hasen finds “something disconcerting about Supreme Court justices becoming political rock stars, particularly in this polarized era,” and suggests that “[m]aybe, just maybe, the left should tone it down with the worship of Supreme Court Justice Ruth Bader Ginsburg — a.k.a. ‘Notorious R.B.G.’”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

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More to Fortas than scandal – Timothy Huebner on a justice “made in Memphis”

More to Fortas than scandal – Timothy Huebner on a justice “made in Memphis”

There are two primary biographies of Justice Abe Fortas — Bruce Allen Murphy’s 1988 “Fortas: The Rise and Ruin of a Supreme Court Justice” and Laura Kalman’s 1992 “Abe Fortas: A Biography.” Neither of these works devotes much attention to Fortas’ life in his hometown of Memphis, Tennessee.

Murphy – writing after the discovery of President Lyndon Johnson’s papers relating to Fortas, which Johnson ordered destroyed but which his staff secretly preserved – focused on Fortas’ downfall as a result of ethical scandals that surfaced during and after his nomination for chief justice. Kalman wrote a more comprehensive work, but still gave Fortas’ Memphis life only six pages before turning to his time at Yale Law School.

In a recent article in the Journal of Supreme Court History, “Memphis and the Making of Justice Fortas,” Timothy Huebner fills that void in historians’ understanding of Fortas’ early life. Through research in archives at Memphis public libraries, Temple Israel in Memphis, local newspapers, the University of Memphis and Rhodes College (where Huebner teaches and which Fortas attended when it was known as Southwestern), Huebner provides history that “none of us have gotten” before, as Kalman wrote in an email.

Huebner’s new research presents a different side to this man, who “grew up in an immigrant Jewish family of modest means in Memphis,” but who is “often portrayed as a consummate Washington insider,” as Huebner writes.

Huebner argues that experiences and relationships in Memphis “helped to shape some of Fortas’s specific attitudes about law and justice.” In particular, Huebner focuses on the Tennessee roots of Fortas’ approach to three constitutional values – justice for the poor, freedom for religious minorities and civil rights for African-Americans – that “have been obscured by the ethical scandals that ended his brief tenure on the Court.”

Huebner’s approach – focused on biographical more than doctrinal history of the Supreme Court – has marked his entire career as a scholar. For Huebner, any study of constitutional law “has to come with an understanding that law is shaped by institutions made up of individuals with their own backgrounds and experiences,” he said in an interview. To understand Chief Justice John Marshall, he explained, one needs to know that Marshall’s interest in a strong national government was shaped in part by fighting for American independence alongside General George Washington at Valley Forge.

In an interview, Fortas biographer Murphy said that Huebner’s insights into Fortas’ early life – including the future justice’s popularity, involvement in college affairs and close relationships with mentors – “fills in a lot of gaps and explains the man later involved in the culture of the White House” as a “close friend” of Johnson’s. For Murphy, the question of Fortas’ “rule-bending” remains open; he posited that it rested in Fortas’ association with New Deal politics. However, that inquiry was outside the scope of Huebner’s analysis, which sought simply to root some of Fortas’ jurisprudence in his early life experiences.

Justice for the poor: Gideon v. Wainwright

In this unanimous 1963 decision, the Supreme Court “held that the right to counsel was included among the rights incorporated by the Fourteenth Amendment to apply to the states.”

Fortas argued the case for the prevailing defendant, Clarence Gideon, at the request of the Supreme Court. As Anthony Lewis, author of the famous book on this case, “Gideon’s Trumpet,” wrote at the time in the New York Times Magazine, Fortas’ “oral argument was as thorough, as dramatic, as suave and—most important to the Justices—as well-prepared as anything that could have been done for the best-paying corporate client.”

Huebner argues that the poverty Fortas experienced as a child “affected Fortas’s ideas about protecting the legal rights of the poor and marginalized.” A 1991 study by sociologists E. Digby Baltzell and Howard G. Schneiderman, “From Rags to Robes: The Horatio Alger Myth and the Supreme Court,” found that up to that point, Fortas and Justice Thurgood Marshall were the two most “underprivileged” justices in history.

Huebner also suggests that “perhaps Fortas knew that in 1917, during his childhood, Memphis had established the first public defender east of the Mississippi River, only the third public defender office in the nation at the time.”

Freedom for religious minorities: Epperson v. Arkansas

In this 1968 decision, the Supreme Court held that an Arkansas statute forbidding the teaching of evolution violated the establishment clause of the First Amendment. As Fortas wrote in the opinion, “It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.”

Huebner writes that Fortas concluded his opinion “by citing not the words of the Arkansas statute, but the Tennessee statute under which Scopes had been convicted” in the famous Scopes Trial. “Growing up Jewish in Memphis during the 1920s—a fundamentalist place at a fundamentalist time”—”influenced his view of the appropriate place of religious doctrine in public policy,” Huebner argues.

As Huebner notes, Memphis newspapers had praised the conviction of John Scopes, and the city’s political boss, Edward Hull Crump, had advocated banning Clarence Darrow from Tennessee. Fortas’ first college debate as a freshman was a mock trial about the teaching of evolution.

Huebner reports that the “Justices were united in wanting to strike down the statute,” but not as a violation of the establishment clause. Fortas “took the lead” in grounding the court’s ruling against the government in that constitutional provision. As he wrote to a clerk who advised that the court not grant the case, “I’d rather see us knock this out.”

Civil rights for African-Americans: Brown v. Louisiana

In this 1966 decision, the Supreme Court “struck down as a violation of the First Amendment a Louisiana breach of peace statute that had been used against African-American civil rights protesters in a public library.” Huebner writes that Fortas also “voted with the majority in cases upholding the Voting Rights Act, striking down the poll tax, and advancing the desegregation of public schools.”

Huebner maintains that “Fortas’s experiences of seeing segregation and racial oppression in Memphis affected his outlook on matters of racial justice and civil rights.”

Throughout his career Fortas spoke out against racial injustices. In a 1946 speech in Memphis at his alma mater, Southwestern, eight years before Brown v. Board of Education and 18 years before the first black student enrolled in the college, he told a white audience, “It seems to me that our domestic problem and specifically the problem of the South must also be dealt with … We must realize that in this country of ours the democratic and constitutional promises of happiness are not the exclusive possessions of a few. They are the rights of all.”

As Fortas would write more explicitly in a 1972 op-ed in the New York Times, “as a Southerner—born and brought up in the Mississippi Delta—I recall the outrages of the Ku Klux Klan, directed against Jews, Catholics, and Negroes.”

Freedom of speech

Gideon, Epperson and Brown v. Louisiana do not represent the only areas of the law in which Fortas exerted some influence, although they are the cases Huebner said he found most rooted in Fortas’ early life experiences. Fortas was also involved in landmark rulings involving the freedom of speech. In Tinker v. Des Moines Independent Community School District, Fortas wrote an opinion holding that students wearing armbands did not lose First Amendment rights to free speech at school. Kali Borkoski reported for this blog on a lecture about this case given by Kelly Shackelford at the Supreme Court in 2013.

In discussing what would happen to Justice Antonin Scalia’s unfinished opinions after the justice’s sudden death two years ago, Steve Wermiel wrote for this blog (as Murphy did in his biography) that “one of the most important free speech rulings in the Court’s history,” Brandenburg v. Ohio, “originally belonged” to Fortas before he left the bench. Justice William Brennan “used most of the opinion that Fortas had prepared, but he revised the most important part, the First Amendment test,” and released the opinion as an unsigned, per curiam decision. ­

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Thursday round-up

Thursday round-up

The spotlight stays on the high-profile union-fees case that will be argued this month, Janus v. American Federation of State, County, and Municipal Employees, Council 31, in which the court will consider whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. At The Daily Caller, Kevin Daley reports that “[t]he U.S. Conference of Catholic Bishops filed an amicus brief at the Supreme Court supporting a pro-choice labor union in a dispute over mandatory union fees,” and that “[t]he case … places the Church’s historic support for organized labor in direct tension with its opposition to abortion.” At The Atlantic, Garrett Epps laments that the argument by two libertarian-leaning scholars in an amicus brief in the case that “the agency fees paid by objectors simply do not implicate their First Amendment rights at all” is unlikely to “slow the court’s stampede to overturn Abood,” the precedent holding the fees to be permissible. In an op-ed in The Washington Post, Charles Lane observes that “[i]f they lose, unions … should look in the mirror,” noting that “[a]utomatic dues are a mixed blessing for any union, since they relieve leaders from the responsibility to persuade rank-and-file members of the union’s value.”


  • At the Stanford Law Review Online, Evan Zoldan discusses Patchak v. Zinke, in which the justices are considering the separation-of-powers limits on Congress’ ability to direct the outcome of litigation, suggesting several approaches through which “the Court can reaffirm Congress’s primacy in lawmaking and, at the same time, preserve some level of independence for the judiciary.”
  • In an op-ed for The New York Times, Linda Greenhouse argues that the justices’ disposition of the Trump administration’s “urgent and highly unusual” request that the Supreme Court hear a challenge to a district-court order blocking the administration’s attempt to unwind the Deferred Action for Childhood Arrivals program before the court of appeals has ruled on the issue will determine whether “the Roberts court serve[s] as Donald Trump’s enabler” or “see[s] itself … as a firewall between the president and the rule of law.”
  • At Casetext, David Boyle offers his take on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about, among other things, the availability of publicly funded family-planning services, arguing “for a form of ‘balance’, i.e., exempting the clinics from the obligation to post the ‘abortion number’, but not exempting them from having to admit any unlicensed status.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

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Petition of the day

Petition of the day

The petition of the day is:


Issue: Whether a misstatement claim that does not meet the elements set forth in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent scheme claim.

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Argument preview: Should courts read statutory exclusionary rules broadly?

Dahda v. United States arguably poses a clash between two of the Supreme Court’s recent passions: strict adherence to statutory texts and cutting back on the exclusionary rule. This tension is unusual because the court’s exclusionary-rule decisions typically involve Fourth Amendment violations. By contrast, this case involves Title III of the Omnibus Crime Control and Safe Streets Act of 1968. And that statute contains an explicit exclusionary rule.

The case arose from a Kansas district court order that authorized surveillance of certain cellphones even if they were transported out of Kansas. The parties agree that the order violated Title III’s general requirement that district courts authorize intercepts only within their own territorial jurisdiction. And Title III provides in part that evidence is suppressible when it results from a wiretap order that “is insufficient on its face.” In Los Rovell Dahda’s view, those simple facts prove that any evidence collected under the defective order must be suppressed. Unless the Supreme Court is prepared to revise the regulatory scheme that Congress enacted, Title III’s express exclusionary rule must apply.

In suppression cases, government briefs often read like a series of interstate signs, relentlessly marking one off-ramp after another on the road to application of the exclusionary rule. The government’s brief in this case fits that pattern. The first opportunity to exit has to do with the statutory term “insufficient.” In the government’s view, the wiretap order at issue was overbroad in that it authorized too much surveillance — namely, interception outside of Kansas. But that overbreadth doesn’t make the order “insufficient” under the statute. As the government puts it, “Adding more usually does not give an order less of something necessary.” That point seems a bit too clever. Calling something “insufficient” invites the question, “Insufficient for what?” And if we ask whether the order in this case was “insufficient” to authorize intercepts outside of Kansas, as it purported to do, the natural answer is “yes.”

Next, the government contends that only a “fundamental defect” in a wiretap order can render it facially insufficient under the statute. This claim represents the government’s main argument, and it finds some support in case law. In a subsection of Title III adjacent to the one at issue in this case, Congress provided for suppression of communications that are “unlawfully intercepted.” That language seems quite broad, yet the Supreme Court has adopted a narrowing construction: For suppression to occur, the transgressed requirement must “directly and substantially implement” Congress’ objectives. Under that test, merely technical violations of Title III do not trigger suppression. The government argues that a similar approach should apply in this case, even though it involves a different statutory provision. In referencing orders that are “insufficient,” perhaps Congress meant to demand only reasonable adequacy, not perfection.

To reinforce that textual point, the government argues that the order at issue resulted from a reasonable error of statutory interpretation. Though district courts are generally prohibited from authorizing extraterritorial intercepts, there is a statutory exception for any “mobile interception device.” The government now concedes that the exception applies only when investigators use a mobile surveillance tool, such as by bugging a car. But the district court may have believed that the exception applied simply because the devices being monitored were “mobile” cellphones. In fact, some case law supports that broad view of the exception. Because the order seemed reasonably lawful at the time it issued, the government denies that it was “insufficient on its face.” That argument parallels Fourth Amendment suppression case law, under which judges’ and investigators’ reasonable mistakes are often overlooked.

In response, Dahda insists that the statute is “unambiguous” in requiring suppression when an order authorizes surveillance that the statute prohibits. Of course, Dahda acknowledges that the Supreme Court has already read implied limitations into nearby suppression provisions in Title III. But Dahda contends that the court adopted that narrow reading precisely to preserve a unique role for the provision now at issue. Building on that point, Dadha tries to move Title III case law onto his side of the board by observing that the government’s position comes close to reading the “insufficient on its face” provision out of the statute. Dadha also makes a forceful case that he should prevail even under the government’s test. Because the statutory rule against extraterritorial intercepts is key to preventing forum shopping, violations of that rule play an important role in safeguarding individual privacy, even if (as the government contends) the surveillance at issue could lawfully have been authorized by a different district court.

Finally, the government points to perhaps the most interesting of its off-ramps — namely, the possibility that there can be lawful applications of admittedly unlawful wiretap orders. This important issue has widespread currency in Fourth Amendment cases heard in the courts of appeals but has largely escaped the Supreme Court’s attention. Sometimes, a warrant will contain a defect that seems “severable” from the rest of the warrant. For example, the warrant might authorize a search in two locations, even though there is probable cause to search only one location. Courts will then admit evidence discovered in the location where the police had probable cause to search. A similar principle could apply in this case. Though the order at issue was wrong to authorize interception outside Kansas, the only evidence admitted at trial was intercepted within Kansas. So, no harm, no foul. Dahda responds by returning to his central theme: Title III is different. If the district court’s admitted error really rendered its order unlawful “on its face,” then the entire order must be invalid. Further, Congress plausibly desired Dahda’s approach in order to encourage strict adherence to Title III.

What makes this case interesting is that it invites the Supreme Court to think about the exclusionary rule in a context in which Congress has explicitly provided for it. That changed context creates room for arguments that aren’t available in Fourth Amendment cases. For example, there may be good reason to construe statutory exclusionary rules broadly, on the theory that the government has more ability than criminal defendants to lobby Congress and fix any judicial misinterpretations. That line of reasoning could support a “canon in favor of statutory suppression” as a criminal-procedure counterpart to the rule of lenity.

Further, the presence of a statutory exclusionary rule could alleviate some of the legitimacy concerns that have led the Supreme Court to cut back on Fourth Amendment suppression. Although some judges and writers (myself included) argue that the Constitution requires an exclusionary rule, the court has long expressed qualms about whether the rule has a firm legal foundation. So perhaps the court should be more willing to suppress when the political branches have explicitly chosen to put suppression on the table. Yet there is at least some wiggle room in the statutory text. And when searching for Congress’ aims, the justices may be drawn to their own views of when suppression is appropriate.

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