Attorney & Court Information
The Supreme Court will release orders from the June 13 conference on Monday at 9:30 a.m.; John Elwood’s “Relist Watch” compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Monday at 10 a.m.
On Thursday, the justices meet for their June 20 conference.
The post This week at the court appeared first on SCOTUSblog.
On June 19 at 1 p.m., the Washington Legal Foundation will host a media briefing entitled, “The U.S. Supreme Court: How Free Enterprise Fared in October Term 2018.” Speakers will include Allyson Ho, Carter Phillips and Nicole Saharsky; Lawrence Ebner will serve as moderator. More information about this event, which will be available online, can be found on the foundation’s website.
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In a broad, unanimous and unsurprising decision, the Supreme Court yesterday held that the Outer Continental Shelf Lands Act only incorporates state law when federal law’s silence on a particular issue creates a “gap” for state law to fill. The decision is a defeat for Brian Newton, a former employee of Parker Drilling Service, Ltd., who sought compensation under California’s more labor-friendly wage-and-hours law for hours that he spent on standby but not working on oil-drilling platforms miles off the coast of California.
Justice Thomas with opinion in Parker Drilling v. Newton (Art Lien)
The case turned on what Justice Clarence Thomas’ opinion for the court candidly called “a close question of statutory interpretation.” Under the OCSLA, structures attached to the continental shelf more than three nautical miles from the coast are deemed to be under exclusive federal control and are governed solely by federal law. However, because federal law does not contain a full code of behavior to regulate human interaction, 43 U.S.C. § 1333(a)(2)(A) provides that “the civil and criminal laws” of the adjacent states are incorporated into the prevailing federal law “[t]o the extent that they are applicable and not inconsistent with” other provisions of federal law. The U.S. Court of Appeals for the 5th Circuit — which is responsible for over 90 percent of the cases arising under the OCSLA — has generally interpreted that statutory provision to spring to life only when a “gap” exists in federal law that requires a rule of decision. The Supreme Court’s few prior opinions interpreting the OCSLA have hinted at the same construction, applying state law because such a gap existed, albeit without ever saying that a gap was required. In this case, the district court followed the 5th Circuit’s approach, but the U.S. Court of Appeals for the 9th Circuit reversed, holding that the plain language of the statute required an approach receptive to the application of state-law rules on the outer shelf, as long as such rules are relevant to the subject matter of the litigation and do not violate ordinary pre-emption principles.
Though the justices found many factual and legal points difficult during oral argument, as I wrote for this blog, the Supreme Court ultimately found it unnecessary to engage those peripheral issues in order to resolve this case. After acknowledging that the question of statutory interpretation is “close,” Thomas’ opinion immediately explained that the court found the 5th Circuit’s approach advocated by Parker Drilling “more persuasive” in the context of the full statutory scheme. That argument had two parts. First, the court somewhat perfunctorily cited to a series of contemporaneous dictionaries suggesting that the word “inconsistent” had multiple meanings when the OCSLA was adopted and that those meanings pointed in different directions in this case. Second, the court with a bit more gusto concluded that the OCSLA’s focus on establishing exclusive federal control over and supervision of the outer continental shelf and its insistence that state law only applies to the shelf as “surrogate federal law” show that Congress wanted state law to play a much more limited role on the outer shelf than it does in the contiguous states. Because traditional pre-emption law balances the interests of two geographic sovereigns, it implicates federalism concerns that are absent when — as here — there is only one governing authority.
Perhaps in order to establish unanimity, the opinion went on to list a variety of other factors and reasons that also support the Supreme Court’s narrow interpretation. First, the broader reading of the statute advocated by Newton and the 9th Circuit, under which state law would apply unless pre-empted by federal law, would render the bulk of the statutory language superfluous. Second, the role given to state law under the court’s interpretation is broadly consistent with the limited role state law plays in other federal enclaves (such as national parks and military bases). Finally, the court’s reading is consistent with settled expectations as established by its earlier dicta and, to a lesser extent, the 5th Circuit’s holdings.
After providing its authoritative construction of the relevant statutory provision, the Supreme Court briefly applied its rule to the facts of this case, vacating the 9th Circuit’s judgment and ruling against Newton on his core claims but remanding for resolution of some peripheral claims that were not briefed before the court. In rejecting Newton’s central claims (involving whether he should be paid for his time on standby and whether the California minimum wage is applicable on the outer continental shelf), the court concluded that they are addressed and defeated by the federal Fair Labor Standards Act and that there is, therefore, no relevant gap for state law to fill.
In practice, this decision changes little, as almost all of the cases involving the OCSLA arise in the 5th Circuit, which has always applied a rule similar to the one the Supreme Court adopted. However, it does close off one avenue that coastal states might potentially have relied upon to gain greater control over offshore oil drilling, a potential flashpoint in future debates over energy and environmental policy. And on a doctrinal level it has the potential to become a convenient citation for the proposition that textualism is not literalism but instead requires careful contextual analysis.
The post Opinion analysis: Court carves out narrow role for state law on the outer continental shelf appeared first on SCOTUSblog.
The Supreme Court will release orders from the June 6 conference on Monday at 9:30 a.m.; John Elwood’s Relist Watch compiles the petitions that were relisted for this conference.
There is a possibility of opinions on Monday at 10 a.m.
On Thursday, the justices meet for their June 13 conference.
The post This week at the court appeared first on SCOTUSblog.
“By what moral right does the … Supreme Court establish controversial rules of law, some of which many people think are mistaken or even morally repugnant, and then enforce its dictates coercively?” This is the question at the heart of Professor Richard Fallon’s thoughtful and timely new book, “Law and Legitimacy in the Supreme Court.” Although Fallon has been exploring these issues for more than a decade, his book arrives at a moment when they are dominating discourse about the Supreme Court.
In recent years, the Supreme Court’s reputation has been battered by politics. In 2016, the Republican-controlled Senate refused to hold hearings for President Barack Obama’s nominee to fill a vacant seat on the bench, putting the court front and center in the 2016 presidential election. Justice Brett Kavanaugh’s confirmation hearing in 2018 was unusually contentious and partisan, in part because Kavanaugh was replacing “swing” Justice Anthony Kennedy. In the wake of these events, some scholars proposed radical structural reforms to the court’s composition in an effort to insulate it from electoral politics. Fallon’s book also explores methods to protect the court’s legitimacy, but he would do so through changes to the justices’ decision-making process that accommodate, rather than deny, the influence of politics.
Fallon begins by explaining that legitimacy is multifaceted, and can be broken into three separate strands. Sociological legitimacy refers to the public’s willingness to respect and obey the Supreme Court’s decisions, moral legitimacy asks whether the court’s decisions are morally sound, and legal legitimacy turns on whether the court’s decisions can be justified under recognized legal doctrines and principles.
As Fallon is quick to point out, a Supreme Court decision can be recognized as legitimate under all three strands even by someone who concludes that the court got it wrong. He also notes that a court or legal system can satisfy one strand of legitimacy even as it fails at others. For example, Nazi Germany’s legal system had sociological legitimacy even though it lacked any moral legitimacy. And, as Professor Tara Grove explained in a recent essay reviewing Fallon’s book, at times these different types of legitimacy are in tension, such as when a justice casts a vote she believes is legally incorrect to avoid issuing a decision that undermines the public’s respect for the court. (Some speculate that Chief Justice John Roberts did just that when he issued his surprising concurrence upholding the constitutionality of the Affordable Care Act.)
More often, however, the three types of legitimacy Fallon identifies are interconnected. For example, if the U.S. Supreme Court is issuing legally illegitimate decisions — that is, decisions that cannot be justified under legal doctrines and principles, but instead appear to be openly partisan or arbitrary — it may eventually lose its sociological legitimacy. Like many others, Fallon fears that the court is at risk of losing its legal and sociological legitimacy in an era of intense partisanship around judicial confirmations, leading to a court filled with justices who vote in line with the preferences of the party that appointed them. In Chapter 6 of his book, Fallon proposes a method of decision-making that he hopes will promote the court’s legal legitimacy, and in the process bolster its sociological and moral legitimacy as well.
Under a method of decision-making that he labels Reflective Equilibrium Theory, Fallon argues that the justices should approach each case with a “provisional commitment” to a particular interpretive method — whether it be originalism, living constitutionalism or some other flavor — and adhere to that methodology even when it requires that they reach results at odds with their ideological preferences. At the same time, the justices should abandon “rigidly algorithmic” application of theory when it would “yield intolerably unjust and practically disastrous outcomes.” He sees this as a middle ground between “excessive flaccidity and untenable rigidity” that will enable the court to protect its legal, sociological and moral legitimacy.
Happily, Fallon’s proposal transcends tired debates about which methods of constitutional interpretation produce the “best” results, and he acknowledges that a variety of interpretive methodologies and outcomes qualify as legitimate. In a refreshing admission, he also concedes that “political views will have an inescapable role” in judicial decision-making, and he thinks that we err in pretending otherwise. Instead, Fallon wisely argues for a conception of legitimate judicial decision-making in which we accept that law is influenced by political, practical, and moral considerations, even as we strive to ensure it is not dominated by them.
The post Academic highlight: Fallon on “Law and Legitimacy in the Supreme Court” appeared first on SCOTUSblog.
In yesterday’s decision in Mont v. United States, a sharply divided Supreme Court held that a period of pretrial detention tolls, or stays, a term of federal supervised release if a court decides to credit that period of pretrial detention toward a sentence for a new conviction. Justice Clarence Thomas wrote the majority opinion, which resolved a circuit split that featured competing textual claims about the meaning of 18 U.S.C. § 3624(e), the relevant tolling provision.
The 5-4 decision in this case did not divide neatly along conventional ideological lines. Justice Ruth Bader Ginsburg joined Thomas’ opinion, as did Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh. Justice Sonia Sotomayor filed the dissenting opinion, which was joined by Justice Neil Gorsuch, in addition to Justices Stephen Breyer and Elena Kagan.
Justice Thomas with opinion in Mont v. U.S. (Art Lien)
The case turned on a close reading of Section 3624(e), which provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” The justices had to decide whether and under what circumstances a period of pretrial confinement qualifies as imprisonment “in connection with a conviction.” Jason Mont had spent 10 months in state pretrial custody, and he argued that the tolling provision was not triggered when the state court credited this 10-month period toward his sentence on a new state conviction.
In rejecting Mont’s argument, Thomas laid out three textual points. First, he noted that dictionary definitions of “imprisoned” encompass pretrial detention. Second, he highlighted the broad meaning of the phrase “in connection with” in order to emphasize that a period of pretrial detention is connected to a conviction when it is credited toward the sentence for that conviction. Third, Thomas brushed aside concerns that the retroactive crediting of pretrial detention would create uncertainty for defendants like Mont. Under his analysis, Section 3624(e) requires courts to retrospectively assess whether a period of pretrial detention tolls a term of supervised release. Because tolling only occurs if pretrial detention meets a 30-day threshold, there is no way for courts to know in advance (at the moment a defendant enters pretrial detention) whether or not tolling will occur. Congress built some measure of uncertainty into the statutory scheme.
Thomas also cited the “statutory context” in support of the court’s decision. Because supervised release is meant to facilitate a defendant’s transition to community life, the purposes of supervised release cannot be served by a period in prison. In addition, allowing a convicted defendant (like Mont) to satisfy a new sentence of imprisonment and an old sentence of supervised release with the same period of pretrial detention would be to grant the defendant a “windfall.”
In a vigorous dissent, Sotomayor criticized the majority for disregarding the present-tense nature of Section 3624(e). She argued that nobody “is imprisoned in connection with a conviction” before any conviction has occurred. In her view, the statute does not authorize tolling when the offender is in pretrial detention and a conviction “is no more than a possibility” in the future. By ignoring the present-tense character of the statute, the majority has improperly altered the statute’s frame of reference from real-time assessments of the nature of the detention (“what is”) to retroactive assessments (“what was or what has been”).
Sotomayor also rejected the notion that her reading of the statute would create a windfall for defendants. She stressed that pretrial confinement is not meant to punish a defendant for a crime, but instead to ensure that a defendant appears in court and is incapacitated if there is a danger to the community. Furthermore, she argued that the majority’s expansive interpretation of the tolling provision would create “a serious risk of unfairness” for defendants. Every person on supervised release would have to comply with the conditions of supervised release while in pretrial custody, but only some of those people would be credited for this compliance. Citing an article I wrote, Sotomayor emphasized that the burdens of compliance are substantial, given the breadth of the conditions of supervised release.
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