Attorney & Court Information
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.
The post Opinion analysis: Divided court holds that pretrial detention can toll a term of federal supervised release appeared first on SCOTUSblog.
The Supreme Court will release orders from the May 30 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 6 conference.
The post This week at the court appeared first on SCOTUSblog.
The Supreme Court will release orders from the May 23 conference on Tuesday 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 Tuesday at 10 a.m.
On Thursday, the justices meet for their May 30 conference.
The post This week at the court appeared first on SCOTUSblog.
In the next month or so, the Supreme Court is expected to issue its decisions in a pair of cases challenging federal congressional districts in North Carolina and Maryland as the product of unconstitutional partisan gerrymandering. When the justices heard oral argument in the two cases in late March, a key issue was whether courts should review partisan gerrymandering claims at all or should instead stay out of them, leaving the issue to politicians and the political process. Two weeks ago, Republican officials from Ohio and Michigan today asked the Supreme Court to put lower court rulings that found partisan gerrymandering in those states on hold while they appeal. Today the Supreme Court granted those requests, in a series of brief unsigned orders that were fairly unsurprising in light of the pending North Carolina and Maryland cases.
Republicans in Ohio had come to the Supreme Court on May 10, one week after a three-judge federal court struck down the state’s federal congressional map and ordered the state’s general assembly to come up with a new plan by June 14. One group of officials, led by Rep. Steve Chabot, characterized the lower court’s ruling as having “recognized a constitutional claim to vindicate partisan buyer’s remorse” after “half the Democratic members of the Ohio legislature” voted to support the plan.
The officials stressed that the Supreme Court is likely to take up their appeals, because cases involving redistricting are among the narrow set of federal cases with an automatic right of appeal from the three-judge district court to the Supreme Court. Moreover, they added, if the justices eventually rule in the North Carolina and Maryland cases that courts have no role in partisan gerrymandering cases, there would be no need to draw new maps. But even if the justices were to rule for the challengers in the North Carolina and Maryland cases, they concluded, the lower court would have to reconsider the Ohio case “in light of whatever standard” the Supreme Court eventually establishes in those cases.
Republicans in Michigan came to the Supreme Court the same day, asking the justices to block an April 25 order that barred the state from using portions of its legislative and congressional maps on the ground that they too were the product of unconstitutional partisan gerrymandering by Republicans. The officials emphasized that the lower court’s order – which would require the state to draw new maps by August 1 – was “on the brink of throwing Michigan’s political system into unnecessary chaos” and would require the state to “devote massive resources,” which would ultimately come out of the public purse, to comply.
All four requests went first to Justice Sonia Sotomayor, who handles emergency appeals from the geographic region that includes Ohio and Michigan. Sotomayor referred them to the full court, which today granted them. Each of the court’s orders indicated that the lower court’s orders would be put on hold pending either “the timely filing and disposition of an appeal” to the Supreme Court or “further order of this Court.”
This post was originally published at Howe on the Court.
The post Court puts partisan gerrymandering rulings on hold appeared first on SCOTUSblog.
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