Supreme Court

  • March 13, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often. When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.   

    The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Brady due process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention. 

  • March 8, 2017
    Guest Post

    by Simon Lazarus, Senior Counsel to the Constitutional Accountability Center

    Wells Fargo’s bogus accounts mega-fraud enabled consumer champions to spotlight the permissive legal environment that led the bank’s top management to believe they could get away with it. In congressional hearings, Democrats in particular pressed Wells CEO John Stumpf on the bank’s use of mandatory arbitration clauses in their standard-form, non-negotiable contracts. Such clauses typically force consumers and employees to sign away their rights to challenge any form of company illegality in court, or to band together with other victims to seek class relief from small-bore, large-scale fraud like that perpetrated by Wells Fargo. After the Senate hearing, six Senate Democrats observed in a letter to Stumpf, that “There can be little doubt . . . that the ability to force customers into secret arbitration proceedings allowed Wells Fargo to continue its outrageous practices with impunity for far too long.”

    Now, with President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court, and Senate Judiciary Committee hearings set for March 20, a new opportunity looms to further bump up awareness of the real-world impact of the judiciary’s pro-industry tilt, and, especially, the role of the conservative bloc of high court justices in fostering that lax environment. In particular, senators can probe the pattern of Judge Gorsuch’s opinions favoring business litigants over individual consumers and workers that has led business legal advocates to read his record to “suggest that his confirmation would restore the pro-arbitration direction of the Court [before Justice Scalia’s death cost the conservatives their majority]).”

  • February 7, 2017
    Guest Post

    *This piece originally appeared on Law360.

    by James J. Brosnahan, Senior Trial Counsel, Morrison Foerster

    As President Trump applies his whack-a-mole, hammer-them-all-on-the-head theory of leadership, could a Justice Neil Gorsuch legal philosophy join opinions that would declare the president’s actions unconstitutional? It is a lot to ask when the president has just given you the greatest legal gift America can bestow. But if the bestower actually holds up federal money from the University of California or sanctuary cities or does any other of the threatened unconstitutional actions in violation of established constitutional doctrine, the court will have to check and balance him as the country’s founders intended.

    Judge Gorsuch is, at times, a positivist. He is outside mainstream American judicial decision-making. I have looked at the headings and results in all 237 of his decisions. I read those that might reflect U.S. Supreme Court issues in the future — those cases I examined much more closely.

    When the words "Oxford degree" are first uttered in the confirmation hearing, it will have a mesmerizing effect on the senators. He got a degree in legal philosophy there in 2004. He studied under the tutelage of John Finnis, a natural-law theorist, who according to Google supports the Catholic Church on a range of contentious issues. Finnis believes the state should deter public approval of “homosexual” behavior. He opposes gay unions and believes they are an assault on heterosexual marriage. More to the point of Gorsuch’s legal philosophy, his teacher Finnis opposes looking for the “ought” in natural-law ethics. At the heart of all Western legal theory, there is the “is vs. ought” division; the United States Constitution is all about the ought.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Lara Schwartz, Former ACS Director of Strategic Engagement and Professorial Lecturer, SPA Honors Program Director and Adjunct Professor, Washington College of Law at American University

    After Judge James Robart of the U.S. District Court for the Western District of Washington issued an order halting enforcement of President Trump’s executive order on immigration, Trump took to Twitter, stating “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Opponents rightly sounded the alarm about this extraordinary disrespect for the judicial function and our Constitution. Sen. Chuck Schumer tweeted that it “shows a disdain for an ind. Judiciary that does not bend to his wishes & lack of respect for the Constitution.”

    This is not simply one more example of Trump’s thin-skinned attitude or his intolerance for dissent. It casts doubt on his capacity to fulfill his constitutional duty to nominate fair-minded, independent judges. Everything we know about Trump should lead us to believe he wants to nominate judges who will put loyalty to him above faithfulness to the law. This means any potential justice whom Trump would consider a satisfactory choice to fill the late Justice Scalia’s seat would be presumptively unfit.

    Trump introduced his nominee, 10th Circuit Judge Neil Gorsuch, to America just days after the executive order that “so-called” federal judges have halted. It is now incumbent upon Gorsuch to demonstrate that in spite of having earned Trump’s approval, he is an independent thinker who can keep his oath to uphold our Constitution and not, in the words of Molly Ivins, to “dance with them what brung” him.

  • February 3, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

    Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”

    All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge – and especially the job of a Supreme Court justice – is much more complex and nuanced than catchphrases like “applying the law as written” suggest.

    The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.