SCOTUSblog

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In the category of “papers I wish I’d written,” I have to recommend one from this month’s issue of Law & Society Review: Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions, by William D. Blake, Hans J. Hacker, and Shon R. Hopwood. The basic premise of the paper is that Supreme Court clerks are cautious when they arrive in the summer, but grow bolder after the feedback they get during the Long Conference in late September. The result is that their early pool memos are much less likely to recommend that the Justices grant review than those that they write later in the year.

What this paper does is investigate that question, with data from five years (OT2008-2012), and quantify the size of the effect, which is substantial. This isn’t the place to go through the statistical analysis, which controls for a wide variety of variables (the pool memo finds a circuit split, participation of the Solicitor General, there is a dissenting opinion below, etc.). The key finding, though, is that, even controlling for all those variables, the likelihood of a grant recommendation is about thirty-six percent lower for the Long Conference at the end of the summer than it is for Conferences later in the Term. Extrapolating from the statistical relation between the pool memo recommendation and the Court’s decision to grant review, the authors estimate that if the Long Conference pool memos were as generous as those written later in the Term, the Court would take about fifteen percent more cases at the Long Conference than it presently does.

The paper isn’t remarkable because of the thesis. Many readers probably will not find the thesis surprising; it certainly resonates with the behavior of clerks during the Term that I was there. What is remarkable, though, is how sharply the clerks’ recommendations shift through the Term, and how big an effect that shift has on the Court’s docket. As if there weren’t enough things for the prudent petitioner to consider, perhaps now we will see strategic efforts to shift a petition’s Conference date into, or out of, the range of the Long Conference. Will the petitioner with a due date in early April file early to try to have the case considered before the Court rises for the summer? Perhaps the respondent in the same matter will waive the right to respond, hoping to delay the due date of the brief in response to the petition long enough to push the matter past the end of the Term. Or perhaps nobody would take this kind of thing seriously enough to react at all. Perhaps it’s just “academic.”

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In The Washington Post, Janell Ross reports on an interview with Justice Stephen Breyer, noting that the interview “did highlight a kind of sleeper issue scarcely mentioned in public since the 2016 presidential campaign began in earnest”: “Assuming that the composition of the court remains unchanged, Breyer will celebrate his 78th birthday by the time the next president takes office in January 2017. And three other justices will be older than 80.”  And in The National Law Journal (subscription or registration required), Tony Mauro reports on the same interview, noting that Breyer “sidestepped questions about Donald Trump’s views on Muslims, but said he doubted anything like the World War II internment of Japanese-Americans would ever occur again.”

Briefly:

• At Hamilton and Griffin on Rights, Jeffrey Stempel looks back at Franchise Tax Board of California v. Hyatt, describing it as a case that “involves difficult areas of law putting several values in tension that has never been clearly resolved by the judicial system.”
• In the Supreme Court Brief (subscription required), Tony Mauro discusses new research which refutes the theory that “Justice James McReynolds, historically one of the court’s least liked members, was said to have been such a dedicated anti-Semite that he refused to sit next to Justice Louis Brandeis for a 1924 group photograph.”
• In the ABA Journal, Mark Walsh previews next month’s argument in Friedrichs v. California Teachers Association, in which the Justices will consider whether public employees who decline to join a union can be required to pay their “fair share” of collective bargaining costs.

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In her column for The New York Times, Linda Greenhouse weighs in on the challenge to the University of Texas at Austin’s consideration of race in its undergraduate admissions policy; she suggests that, although there “is only a remote chance that the case will spell a formal end to affirmative action in university admissions,” “the justices face a crucial choice nonetheless:  to keep the diversity door open or further reduce the court’s equal protection jurisprudence to the caricature it is becoming.”  And at ACSblog, Kimberly West-Faulcon contends that, for the university to prevail, Justice Anthony Kennedy “will also have to reject another common theory long-invoked by critics of racial affirmative action policies—the theory that racial affirmative action is ‘classist.’” 

Briefly:

• In the ABA Journal, Debra Cassens Weiss reports on a study on the “loyalty effect” in Supreme Court Justices – the idea that the Justices “generally make more decisions favorable to their appointing president than they do to subsequent presidents.”
• At Just Security, Steve Vladeck discusses a petition filed by the Electronic Privacy Information Center and “a very important (but little noticed) circuit split over the scope of FOIA’s ‘Exemption 7(F),’ which allows the government to withhold ‘records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.’”
• At the IMLA Appellate Practice Blog, Lisa Soronen discusses the amicus brief that the State and Local Legal Center filed in Heffernan v. City of Paterson, arguing that “a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.”
• And at the NCSL Blog, Soronen notes that the Court “has taken two cases this term from California involving arbitration clauses” and contends that, although “this sample size is small, it seems fair to conclude that the California courts unapologetically disfavor arbitration clauses (which, practically speaking, preclude litigation). So far the Court isn’t having it.”

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Heffernan, DIRECTV, and MHN.  However, I am not affiliated with the law firm.]

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The Obama administration, relying on legal precedents going back more than a century, has urged the Supreme Court to rule that Puerto Rico remains a dependent U.S. territory and does not govern itself as an independent “sovereign.”  It thus challenged the island commonwealth’s claim that since 1952 it has had the status of a self-governing entity with its people free to have their own legislature write the island’s own laws, including criminal laws.

The Court has agreed to review the constitutional status of Puerto Rico, and will hold a hearing on that issue in Puerto Rico v. Sanchez Valle on January 13 in a case on the power of its criminal prosecutors.  That will be the first of two cases on Puerto Rico’s status, with a second case coming up later in the Term on how it can handle its current debt crisis (Puerto Rico v. Franklin California Tax-Free Trust).

In the Sanchez Valle case, Puerto Rico is seeking treatment as a self-governing entity so that it would be free to prosecute two individuals for gun crimes even though they previously were convicted in federal court of crimes based on the same incidents.  Ordinarily, two prosecutions for the same crime would violate the Constitution’s ban on “double jeopardy.”  But the Supreme Court has ruled that the ban does not apply if the same crime is punished in the courts of separate “sovereign” entities — in the usual case, that would be the federal government and a state government.

Puerto Rico has no authority to stage its own prosecution after a federal conviction, the government argued in a new amicus brief filed on Wednesday.  It could become a sovereign only if it could acquire U.S. statehood, or be split off as a separate nation.  The federal government conceded, as the Supreme Court has previously said, that Puerto Rico has had a measure of self-government “comparable to that possessed by the states.”  But it remains a territory, subject to Congress’s control under the Territories Clause in the Constitution, the federal government said in the new filing.

While Congress gave it permission to write a new constitution and achieve a degree of self-government in 1950 — carried out two years later — that did not confer upon its people the degree of independent autonomy that the U.S. states have.  This degree of self-government, the federal government contended, has yielded many benefits to the island’s people, and there is no indication that Congress is prepared to cut back on that governing authority.  The federal government chose to enter the case as a supporter of the two men Puerto Rico prosecutors want to charge with gun crimes.  The federal government said that, because it has many dealings with Puerto Rico, it has a keen interest in its legal status.

It noted that the people of the island have voted several times on whether to seek a change in its constitutional status, but they have not sought statehood or an opportunity to be spun off as a separate nation.  The Commonwealth in its appeal is seeking to have the Justices overturn a ruling by its own supreme court against the sovereignty claim.

The federal government, in urging the Court to uphold the island supreme court on the constitutional point, recounted the history of Puerto Rico since the U.S. took it over from Spain in 1898 as one of the prizes of the Spanish-American War.  That came at a time when the U.S., until then mostly an isolated entity in the global community, first began to have ambitions to become a colonial power like Britain and Spain.   That period is important in U.S. constitutional history partly because the Court, in a series of rulings early in the 1900s called the Insular Cases, began developing doctrine on whether the U.S Constitution would apply in the newly acquired possessions abroad.

In fact, the government repeatedly cites the Court’s ruling in 1907 in Grafton v. United States, declaring that the Double Jeopardy Clause applied to territories because they were not sovereigns separate from the U.S. government.  That case involved the Philippine Islands.

The government contrasted the constitutional status of Puerto Rico with that of the fifty states and of Indian tribes in the United States.  The states were sovereign following Independence, and retained that status after the Union was formed, and tribes had their own sovereign  status as Indian nations before the U.S. government took them in under its own protection, and they remain sovereign. the brief noted.

In a footnote, the government said that the Justice Department had taken the position in briefs filed in federal courts “two decades ago” that Puerto Rico was sovereign for purposes of the Double Jeopardy Clause.  Those briefs, it commented, “do not reflect the considered view of the Executive Branch.”  That appears to suggest that the remainder of the new brief explores that question more fully.

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The petition of the day is:

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UPDATED 8:42 p.m.with a link to the calendar in the first paragraph.

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The Supreme Court on Wednesday released the schedule of oral arguments for the sitting that begins on Monday, February 22.  The case testing the constitutionality of abortion clinic restrictions in Texas is scheduled for argument on Wednesday, March 2.  It is the only case set for that day.

All hearings in this sitting will be in the mornings, with the first case at 10 a.m.  Each will be set for one hour.  Following the jump, the daily listing shows the issues in each case.

Monday, February 22:

Kingdomware Technologies v. United States — challenge to the management of contract preferences for veteran-owned small businesses by the Department of Veterans Affairs (Case rescheduled for argument after mootness issue arose)

Utah v. Strieff — need to suppress evidence seized under an outstanding warrant discovered during an investigatory stop later found to be illegal

Tuesday, February 23:

Taylor v. United States — duty of federal prosecutors to prove the interstate-commerce connection of a charge under the Hobbs Act

Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer — need for clarification of federal district judge’s authority to award enhanced money damages for patent infringement (Cases consolidated for one hour of argument)

Wednesday, February 24:

Hughes v. PPL EnergyPlus and CPV MD v. PPL EnergyPlus — federal preemption of state-directed contract for retail utilities to join in federally regulated energy auction market (Cases consolidated for one hour of argument)

MHN Government Services v. Zaborowski — whether the Federal Arbitration Act preempts the California state law providing a different form of severability of terms for arbitration disputes, compared to other contracts

Monday, February 29:

Voisine v. United States — constitutionality of treating a misdemeanor crime requiring proof only of recklessness as a federal crime of domestic violence

Williams v. Pennsylvania — constitutional duty of a state supreme court chief justice to recuse from any role in a decision involving a death sentence that the jurist supported during an election campaign

Tuesday, March 1:

Nichols v. United States — whether a convicted sex offender now living in a foreign country has a legal duty to update a registration in the state of former residence

Husky Electronics v. Ritz — clarification of proof needed to show actual fraud that will bar the release of a debt in bankruptcy

Wednesday, March 2:

Whole Woman’s Health v. Cole — constitutionality of Texas law requiring abortion doctors to have hospital admitting privileges near the clinic and requiring clinics to have facilities equivalent to a surgery center

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UPDATED at 1:10 p.m. (in the final paragraph) to clarify how the motion will be handled by the Supreme Court.  

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A group of Hawaiians challenging the move to set up a new “native Hawaiian” nation within the state returned to the Supreme Court Tuesday, seeking an order to hold the organizers in contempt and further orders to stop the entire process toward establishing sovereignty.

The motion followed cancellation a week ago by the sponsors of an election to select delegates to a constitutional convention for the new tribe-like nation, and the sponsors’ decision to seat all of those who ran in the election as delegates to a convention starting February 1.  That, the challengers argued, directly disobeys the Supreme Court’s December 2 order interrupting the election.

Accusing the sponsors — the private organization Na’i Aupuni — and state officials of “gamesmanship,” the challengers noted that going ahead with delegate seating and with the convention itself would continue the race-based process of which the election was only the first part.  The challengers’ ultimate goal, they reminded the Court, was to have full participation by Hawaiians in general in the decision about creating a new sovereign entity within Hawaii.  The Supreme Court’s order early this month was aimed at the entire process, even if it was technically limited only to barring the counting of the ballots cast and certifying the choice of delegates, the new motion contended.

Although Na’i Aupuni was the chosen sponsor and manager of the election, and made the decision to cancel it, the motion filed on Tuesday also named the state of Hawaii, its governor, other state officials, and others involved in the sovereignty movement.

The motion specifically asked the Justices to take three actions:

First, to order those named in the motion to be in civil contempt, to cure the violation that the challengers claimed had occurred.  The Court should order a withdrawal of the appointment of delegates from those who ran in the election, block any further effort to convene the February convention, and order a monetary penalty “strong enough” to ensure that the Court’s orders are carried out.

Second, to require those it cited to get a court’s official clearance before they take any further steps to name delegates and hold the convention, while the challengers go forward with their pending constitutional challenge, now before the U.S. Court of Appeals for the Ninth Circuit.  Such preclearance, under the federal Voting Rights Act, is one of the remedies the challengers are now seeking in the lower courts, they noted.

Third, to order those it cited to pay for the challengers’ attorney’s fees and costs for the filing of the contempt motion. as part of the remedy for the “willful disobedience” of the Court’s December 2 order.

UPDATED: The motion was filed with the full Court and, like other motions, it will go to the full Court for consideration at a future Conference.  It is not being treated as an emergency matter with a single Justice having authority to resolve it.

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Briefly:

• In the Supreme Court Brief (subscription required), Tony Mauro reviews a new book by Todd Peppers and Clare Cushman on Supreme Court law clerks, noting that the book “sheds new light on some lesser-known justices” and includes stories from “some of the 13 father-daughter and father-son duos that have clerked for the court a generation apart.”
• Elsewhere in the Supreme Court Brief, Mauro compiles a list of “ten books for the Supreme Court aficionado in your life.”
• At PrawfsBlawg, Ian Bartrum discusses the challenge to the University of Texas at Austin’s consideration of race in its undergraduate admissions process and its relationship to the legacy of Plessy v. Ferguson.
• In an op-ed for The New York Times, Amanda Frost and Steve Vladeck discuss standing and the challenge to President Barack Obama’s immigration policy, urging the Court to “accept the case, hold that the plaintiffs lack standing, and send it back to the lower courts with instructions to dismiss.”
• At his Election Law Blog, Rick Hasen looks ahead at election law litigation in 2016, predicting that it will include “emergency last minute litigation making it to the Supreme Court as part of whatWill Baude calls the Supreme Court’s ‘shadow docket.’”
• At Vox, Michelle Garcia interviewed one of the authors of the rap artists’ amicus brief in support of the Mississippi high school student suspended for a protest rap.
• In the Los Angeles Times, David Savage profiles Edward Blum, noting that the “most effective legal strategist before the Supreme Court these days is a retired stockbroker and liberal-turned-conservative who admits he sometimes finds plaintiffs by cold-calling strangers on the phone.”

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Sarah Escalante is a Ph.D. student in the Department of Political Science at Michigan State University. Ryan C. Black is Associate Professor of Political Science at Michigan State University. Matthew Hall is Associate Professor of Political Science at the University of Notre Dame. Ryan J. Owens is Professor of Political Science at the University of Wisconsin. Eve M. Ringsmuth is Associate Professor of Political Science at Oklahoma State University.

Supreme Court opinions in recent years have employed controversial emotional language aimed to tug at the heart strings and to provoke ire. For example, one Court watcher recently called Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges “gorgeous, heartfelt, and a little mystifying;” another called Justice Antonin Scalia’s dissent in the case a “temper tantrum on paper.” One commenter called Scalia’s twenty-one-page dissent in King v. Burwell “one of the most scathing and linguistically creative dissents in recent memory.” Justice Sonia Sotomayor also got in on the action, and wrote what one observer called a “blistering” dissent in Glossip v. Gross. Perhaps it should be unsurprising that the Justices use such language. After all, they decide controversial issues that carry emotional weight for millions of people.

Yet those same Justices counsel lawyers to avoid such emotional language. In her confirmation hearing before the Senate Judiciary Committee, Sotomayor stated: “Judges can’t rely on what’s in their heart. . . . It’s not the heart that compels conclusions in cases, it’s the law.” Scalia, in his legal-writing book with Bryan Garner, advises attorneys not to “make an overt, passionate attempt to play upon the judicial heartstring” as “[i]t can have a nasty backlash.” Even Supreme Court Rule 24.6 – a rule the Justices themselves created – directs attorneys that a brief shall be “free of irrelevant, immaterial, or scandalous matter.”

There are strong reasons why an attorney should avoid highly charged emotional language. An attorney’s persuasive power resides in his or her perceived credibility in the eyes of the Justices. A primary way for an attorney to communicate this credibility is through the quality of the language employed in his or her legal briefs to the Court. The Justices pay close attention to language and they expect others to do so as well, and so they pay careful attention to the briefs that come before them. (To be sure, oral arguments also serve an important purpose, but it is the written brief that largely communicates and emphasizes attorneys’ points.)

The question we sought to examine was whether the language attorneys use in their briefs might correlate with case outcomes. While prior legal research has suggested how to write effective and readable briefs, there has been little empirical insight shed on whether these recommendations actually enhance an attorney’s credibility and win Justices’ votes. In a forthcoming study to be published in the Journal of Law and Courts, we provide some empirical findings.

We ask whether the inclusion of emotionally charged language in briefs disadvantages an attorney’s credibility and influence before the Court. To do so, we examine the initial merits briefs and individual Justice vote data from the 1,677 orally argued cases decided during the Court’s 1984-2007 Terms. We hypothesize that a Justice will be less likely to vote for a party whose brief employs more emotional language. We ground this belief in the fact that the Justices have been trained and socialized in the traditional rule of law, which emphasizes appeals to logic and legal authorities. By structuring an argument in measured, objective language that the legal community widely expects, a lawyer can most effectively enhance his or credibility and ability to persuade.

To test our expectations, we use the Linguistic Inquiry and Word Count program to analyze the content of the parties’ briefs and identify emotional words (such as “outrageous,” “apprehensive,” and “wonderful”). The data confirm our hypothesis. Parties employing overtly emotional language are less likely to capture the Justices’ votes. Our findings suggest that the language attorneys choose when crafting arguments plays an important role in determining a party’s ability to win the votes of the Justices and provides yet another mechanism by which attorneys are in a position to influence policies set by the Court.

More specifically, our model predicts a 0.61 probability that the petitioner wins a Justice’s vote when supported by a brief with a low level of emotional content. Holding all else constant and increasing the emotional content to a higher level reduces that probability to 0.56 – a relative change of about 9%. (Note: We use the 10^th– and 90^th-percentile values of emotional language for “low” and “high” hypotheticals, respectively.) The effect for the respondent is stronger. We estimate a 0.44 chance that the respondent wins a Justice’s vote with a brief containing relatively little emotional content. Exchanging that respondent’s brief with another containing higher emotional content reduces that probability to 0.37, which is a relative change of about 16%.

To put the magnitude of these values in perspective, the effect of petitioner-brief emotion is about the same as the effect of increasing the amount of previous experience the petitioner’s attorney has arguing cases before the Supreme Court. For emotive content in the respondent’s brief, the effect is almost triple the size of increasing the amount of oral argument experience the respondent’s attorney has.

The bottom line: attorneys looking to enhance their credibility and attract Justices’ votes are best served by listening to the advice offered up by the Court and avoiding overtly emotional language. Leave those words to the Justices.

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Briefly:

• Sam Baker of National Journal suggests that, if “you want to know why the Su­preme Court is poised to strike a ma­jor blow to af­firm­at­ive ac­tion, fo­cus­ing on Ant­on­in Scalia’s com­ments about black stu­dents and ‘slower-track’ uni­versit­ies might be miss­ing the point.”
• At LinkedIn Pulse, Dawinder Sidhu considers how the Supreme Court should address calls from federal courts of appeals for “an updated approach to the Thirteenth Amendment.”
• At NFIB, Luke Wake discusses a petition for certiorari that the Pacific Legal Foundation filed on behalf of “a small business property owner who was denied the opportunity to raise a takings claim in federal court, notwithstanding the fact that the state courts in Connecticut had already demonstrated a lack of concern for their asserted federal rights.”

[Correction:  An earlier version of this post referred to a petition for certiorari filed by the National Federation of Independent Business, but the petition was in fact filed by the Pacific Legal Foundation.]