READ THAT BACK: Frosting, Holes, and the Holy Ghost


2017 may be remembered as the year of constant political and cultural shifts—a seemingly endless string of events that made us rethink the world around us. And this past week would certainly be considered a contributor to that trend. Maybe part of it is that, as many of us had a four-day week, it seemed like we compressed the crazy into less time than usual. In addition to the insanity that is the Court Reporter’s usual bailiwick, there’s also breaking allegations of sex abuse against Alabama Senate candidate Roy Moore and a host of others, and then of course there was Tuesday’s election, which has widely been characterized as a rebuke of the president. (Although others characterized it as a rebuke of rebuking the president.)

I hope you’ve thanked a veteran this weekend; for those of you overseas (we have overseas readers, right? Sure why not) I hope you’ve remembered the day, 99 years ago, the guns fell silent. If not, it’s not too late.

Let’s read that back.

And They’re Off!:Rapid” Ruth has struck first in this term’s battle to determine who the fastest opinion writer will be. Her opinion for a unanimous court in Hamer v. Neighborhood Housing Services of Chicago (the Court Reporter got that wrong!) was issued Wednesday, just 29 days after the case was argued before the high court. It was a civil procedure decision about—appropriately—the 30-day deadline for filing a notice of appeal. Will “Swift” Sonia be able to keep pace? Or will one of the other justices—“Electric” Elena? “Speedy” Samuel? (They should really make up their own nicknames on their Senate questionnaires)—be able to pull off an upset this year? Time will tell! But since term lengths are judge-made rules, they’re not jurisdictional and can be extended, so we don’t know how much time will tell.

Free Speech Brigade: We got three cert. grants from the Supreme Court this morning, and all three have a free speech element. One asks whether restrictions on campaign apparel near polling places is permissible; one asks whether probable cause automatically defeats an allegation of retaliatory arrest for speech; and one asks whether the disclosures California requires “pregnancy crisis centers” to make—that they don’t provide abortions and informing patients where they can get them—are impermissibly compelled speech. A whole lot of First Amendment textbooks are going to have to be revised after this term.

With Frosting on Top: Court watchers expect that Justice Anthony Kennedy—the single-handed author of the Supreme Court’s LGBT rights jurisprudence over the last more-than-20 years—will have an important role in the decision in Masterpiece Cakeshop. But might Chief Justice Roberts—who in such cases has either dissented (Windsor, Obergefell) or remained silent (Pavan)—also come out (pun originally not intended, but now it is) in favor of the cake-buying couple, based on his First Amendment jurisprudence? The Court Reporter notes, as an aside, that the distinctiveness of the LGBT case names makes them easy to both remember and find in your preferred legal research tool, whatever that may be.

Exemplifying the First Law of Holes*: The, erm, controversial Pence-Kobach voter fraud commission doesn’t seem to have been doing much, and yet it still managed to have a pretty bad week. First it was sued—again (there are already numerous suits pending against it)—but this time the plaintiff isn’t a government watchdog or voting rights group, but one of its own members. Maine Secretary of State Matthew Dunlap complains that he’s not being given access to the documents necessary to carry out his responsibilities for the commission. Election law observer (again, pun not originally intended, but hey) Professor Rick Hasen has been critical of Dunlap’s participation on the commission, but applauds the move. Then Gizmodo—the same day—published a story about how the commission is putting personal data of millions of Americans at risk with systems a novice could hack. Maybe it’s time for the commission—based on Trump’s, erm, dubious claim that three million illegal voters cost him the popular vote in 2016—to stop digging.

*The deadpan caption on the picture in this article fills the Court Reporter with glee.

Teeter Totters, Talley Tanks: So last week we told you about Steve Grasz, the first federal judicial nominee to get an “unqualified” rating from the ABA since 2006. This week we got three more! The group includes Holly Lou Teeter, who graduated law school in 2006, and Brett Joseph Talley, who, born in 1981, could be the face of Xennials on the federal bench. (The Court Reporter also qualifies as a “Xennial,” as the article describes it, but also thinks that all of this generational nonsense is…nonsense.) Inexperience appears to be part of the reason for the ratings—both have less than the ABA’s preferred 12 years of legal experience—but we’re not given the reasons. In Talley’s case, though, it might have something to do with his rather eccentric hobby: ghost hunting. The Court Reporter imagines the sessions going something like this.

Dead Reckoning: Hamer wasn’t the only Supreme Court opinion of the week. In fact, you might be forgiven for forgetting that Hamer had even happened, given the reaction to Monday’s decision—decided per curiam and without argument (and hence not calculated in our opinion writing standings)—in Dunn v. Madison, allowing (subscription required) the execution of a cop killer, who due to a series of strokes has no memory of the crime, to proceed. The decision turned on a procedural issue in AEDPA that only a—well, I’m not actually sure who, if anyone, could love AEDPA. The decision came with two concurrences, one of which might have well as been a dissent by any other name, as Justice Breyer once again called for the court to examine, again, whether the death penalty is even constitutional. Larry Tribe agrees, but he has a result already in mind. (Strangely, Breyer didn’t join the Sotomayor/Ginsburg/Kagan dissent from Monday’s denial of cert. in another death penalty case. Justices! The Court Reporter will probably never understand ’em.)

ICYMI:

  • Oral arguments! Okay there were only two and they weren’t barn-burners. Still! (Both require subscription.)
  • Judge Amy Berman Jackson, who is presiding over the Paul Manafort trial, has issued a gag order in the case, requiring attorneys to refrain from making public statements that could prejudice the case
  • The Department of Justice drops charges against the woman who laughed during Jeff Sessions’s confirmation hearings. What a crazy thing that is to type.
  • Learn how to bill other than by-the-hour!

And Now…An Extraordinary Petition: The Solicitor General’s office files cert. petitions all the time, so it’s ordinarily not a big deal. But on Nov. 3, the federal government’s appellate office filed what is widely regarded as an extraordinary petition. Not because it’s very good, but in fact the opposite: The “singularly remarkable document…departs, sometimes dramatically, from the justly lauded, traditional standards and practices of that office,” according to Marty Lederman’s comprehensive takedown of the filing.

The petition was in Hargan v. Garza, the case that featured “Jane Doe”—a juvenile in immigration detention who wanted to get an abortion—and the federal government that didn’t want to “facilitate” the abortion by not…well, to hear Judge Millett (who wrote a D.C. Circuit opinion accompanying the decision allowing the abortion to proceed) tell it, by simply not allowing it.

The filing is strange for a lot of reasons, not the least of which is that the case is already effectively moot. Doe had her abortion the morning after the D.C. Circuit allowed it to proceed. Okay, it was filed as a class action and the class claims are still live, but the class issues aren’t the focus of the petition. Instead, Lederman suggests that it’s a press release intended for a different audience than the Court; one ethics professor suggests that it’s actually a jab at the ACLU. It could well be both, and the fact that no career SG attorneys signed the brief—which appears to be light on the law anyway—suggests that it was controversial even within the office.

Linda Greenhouse sees in the filing a beginning to the next stage of the abortion fight in this country—one in which DOJ is but an “outpost of the National Right to Life Committee.” (The Court Reporter’s sources say that NRLC is actually on the outs with this administration, and that its zealousness on abortion issues comes from within and from other, more strident organizations.)

And Leah Litman ties the brief to a larger trend of using the DOJ as a political weapon. Which is, as she says, “completely bonkers.”

And yet here we are. The Court Reporter doesn’t have much to add beyond what these other commentators have already said. The Supreme Court will have its say in due course, although I expect that all it will say is “cert. denied.” As an institutional matter this is probably its best bet anyway; erosion of one norm need not beget another.