Supreme Court

  • July 5, 2017

    by Dan Froomkin

    The Supreme Court term that ended last week was fairly tame – at least by recent standards. But top Court observers on an American Constitution Society panel on Thursday said that beneath the collegiality and calm were signs of major fissures likely to deepen and become more acrimonious when the Court reconvenes in October.

    And nothing may have made that more clear than the Court's parting decision, crafting a compromise of sorts that lifted a stay on major parts of President Trump's hugely controversial travel ban.

    "It is muscular. It is the court drawing its own line – not based in statute, not based in executive order -- about how this semi-stay is going to be accomplished," said Lee Rowland, senior staff attorney for the ACLU's Speech, Privacy, and Technology Project. "I think that's an indicator that the Court is willing to wade in to some serious controversy, including making foreign policy itself."

    Paul Clement, a former solicitor general now at Kirkland & Ellis LLP, said the Court's travel ban decision was "a good way to think about the transition from this last term, which was kind of sleepy, and they decided a lot of things with eight justices, and didn't make any waves" to "a term full of blockbusters."

    And there's no question that Trump's addition to the Court, Justice Neil Gorsuch, will be a key element in that transformation.

    For now, said Tom Goldstein, the co-founder and publisher of SCOTUSblog, "I think that one of the things that's going on is what we call the left on the Court is trying to be relatively tactical and trying to accommodate what they think is the inevitable pivot of the Court still further to the right… and trying to build some sort of consensus."

  • June 29, 2017
    Guest Post

    by Rachel Meeropol, Senior Staff Attorney and Associate Director of Legal Training and Education at the Center for Constitutional Rights

    Having litigated the case that would become Ziglar v. Abbasi for the last fifteen years, since the summer I graduated from law school, my first impressions of the Supreme Court’s 4-2 decision were somewhat provincial. I represent six men who were detained after 9/11 for minor immigration violations. Though there was never any reason to suspect my clients of ties to terrorism, they were beaten, harassed, kept from contacting lawyers and loved ones, denied the ability to practice their religion, deprived of sleep and held in solitary confinement until they were cleared of any potential connection to terrorism by the FBI and deported. Last week’s Supreme Court decision denying them an opportunity to sue for monetary damages against the former federal officials that designed the policies that led to their restrictive confinement marks a low point in their long struggle for justice and compensation. Perhaps unsurprisingly, my first thoughts were how they would be impacted and where the case could go from here. With the benefit of a few days distance, I have forced myself to undertake the decidedly unpleasant task of considering the bigger picture: Just how badly does Justice Kennedy’s opinion eviscerate the Bivens doctrine? Spoiler alert: quite a lot.  

    Some background first: unlike constitutional violations by State officials, there is no statute that allows people to sue federal officials for damages for constitutional violations. Instead, civil rights plaintiffs have relied on a trio of Supreme Court cases, stating with Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, that implied a damages cause of action directly under the Fourth Amendment, the Equal Protection Clause and the Eighth Amendment. Since 1980 the Supreme Court has consistently rejected attempts to “expand” the Bivens doctrine to allow damage actions against federal agencies, private corporations and private actors and to limit its application where Congressional action in the field leaves no room or no need for an implied cause of action. But over the same period, the Supreme Court and the circuits assumed the availability of many other Bivens claims that met the central purpose of the doctrine: compensating victims of federal officer wrongdoing where such compensation would otherwise be unavailable, and deterring individual federal officers from future illegality. Abbasi stands in sharp contrast to these decades of precedent. 

  • June 29, 2017

    by Caroline Fredrickson

    With people’s longevity increasingly approaching the century mark, lifetime tenure on the Supreme Court is itself getting old.  Some scholars on both sides of the ideological divide have offered a proposal: an 18-year term limit on Supreme Court Justices’ service. This idea may relieve the nominations process of painful political pressure and bring both accountability and better predictability into our judicial system. And, the term aligns with historic numbers – eighteen years is close to the average term of service on the highest court in the past 100 years.

    Why change a time-honored tradition?

    Today's Supreme Court is “polarized along partisan lines in a way that parallels other political institutions and the rest of society;” government scholar Norm Ornstein observes.

    “Lifetime appointments give presidents the incentive to overvalue younger, more ideological candidates and overlook those who are at the height of their careers,” the nonpartisan Fix the Court group asserts based on Ornstein’s writings.

    “Life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history,” Professors Steven G. Calabresi and James Lindgren point out in their paper. They also found Justices remain influential on the court well into their 80s, longer than ever before in American history. These days court vacancies actually delay justice; political storms form too quickly after a Justice who spent decades handing down decisions dies.

    Thus, 66 percent of Americans polled during last year’s monumental crisis wanted to end life tenure for Supreme Court Justices, as they endured the colossal failure to fill a departed Justice’s seat.

  • April 26, 2017

    *This piece is part of the ACSblog symposium: The Department of Injustice.

    by Christopher Wright Durocher

    On Monday morning, the Supreme Court declined to review a Fifth Circuit Court of Appeals ruling that upheld the dismissal of Ricardo Salazar-Limon’s lawsuit against the City of Houston for a police officer’s alleged excessive use of force. Salazar-Limon was partially paralyzed as the result of injuries he sustained when Officer Chris Thompson shot him in the back during a traffic stop, though he was unarmed.

    The Fifth Circuit reasoned that there was no material dispute of fact in the case—the standard that must be met to avoid summary judgment—because Thompson testified during his deposition that he saw Salazar-Limon reach for his waistband, and, as Justice Samuel Alito notes in his concurrence, “Remarkably, Salazar-Limon did not state in his deposition or in an affidavit that he did not reach for his waist.”

    The problem, Justice Sonya Sotomayor explains in her dissent, is that this conclusion “is plainly wrong.”  As she describes it, there is a clear dispute of material fact:

  • April 18, 2017
    Guest Post

    by Jim Brosnahan, Senior Trial Counsel, Morrison & Foerster, and Author of the Upcoming Book: Trial Lawyer

    The Gorsuch confirmation hearings were, even to a casual observer, a catastrophic insult to the proper selection of a justice. Even by the standard that such hearings are political and not legal events, it highlighted the current failure of the practice of the political arts. Any selection of a Supreme Court Justice with lifetime tenure is a politically sacred happening. At this time, the reckless, almost daily, unconstitutional bursts of illegal energy emanating from the White House and supported by an attorney general who missed the Constitutional Law class will present a series of clear and present fundamental legal challenges to the Supreme Court. Nothing in what now-Justice Gorsuch testified to or what the ten million dollars in TV ads supporting him said gave the slightest assurance he will uphold the Constitution against this president. In all likelihood, that set of potential constitutional issues involving executive excess is the number one potential legal challenge that will face the Court in the next year or two.


    1. “He is qualified”