2017 Annual Supreme Court Round Up
Articles,  Blog

2017 Annual Supreme Court Round Up


Good afternoon. My name is Doug Cox. And on behalf of the DC Lawyers Chapter, welcome
to our July luncheon. This is our traditional Supreme Court roundup
but this year, circumstances permit us to modify tradition a little bit. In recent years, as the Supreme Court has
served up flawed decision after flawed decision, the roundup has been a festival of bitterness,
a carnival of regret and a feast of disappointment. This year, things are looking up, particularly
compared to where we were at last year’s roundup. Last year, we’re contemplating the impending
Hillary Clinton presidency, what all that would mean for the courts and the rule of
law. This year, we are frolicking in the sunshine
of the Trump presidency. (laughing) The colors, the colors are brighter. (laughing) The air is fresher and even the food tastes
better. (laughing) Instead of the fighting, mud slinging and
ugliness of the inevitable second Clinton impeachment, now stability and decorum reign. (laughing) Last year, the Society had to assume it would
be an eclipse during the Clinton administration, reduced to fighting a rear guard action as
our leadership was led off to re-education camps. (laughing) This year, the Society is riding high and
widely praised for its role in the legal culture. In fact, at a recent Senate confirmer, confirmation
hearing, all four candidates, two judicial nominees and two executive branch nominees
were members of the Society. Last year, we were assuming that the nomination
of Merrick Garland or someone further left would lock the Supreme Court into a nihilistic
death spiral. (laughing) This year, with the confirmation of Justice
Gorsuch, the Court has the opportunity to pull itself into a death ellipsis. (laughing) Kind of like a death spiral but somewhat less
obviously fatal. (laughing) Although we continue to feel the loss of Justice
Scalia, we can savor the clarity and rigor of Justice Gorsuch’s first opinions. The New York Times, of course, does not see
Justice Gorsuch that way. A recent Op-Ed about the new Justice was headlined
Trump’s Life Tenured Judicial Avatar. Now, that certainly sounds exciting. (laughing) Had Justice Gorsuch body slammed one of his
colleagues? (laughing) Had he labeled another Justice’s opinion fake
law? (laughing) Or even commented on Justice Kennedy’s failure
to retire by treating, tweeting the one word, sad? (laughing) Unfortunately, The Times headline promised
far more than it delivered. What caught the writer’s attention was simply
that Justice Gorsuch turned out to be as serious about text, the legislative process, and judicial
interpretation as he had stated he was going to be during the confirmation process. As the writer observed, “No real surprise
there and no real news either.” And we all know what the opposite of real
news is. (laughing) The writer did find newsworthy what was des-
described as, “The sheer flamboyance of the new Justice’s opinions.” Suggesting that someone does not know what
flamboyance means. (laughing) We are after all talking about judicial opinions,
not party hats. And even though this year, Justice Kennedy
somehow concluded that the right to define one’s own concept of existence, of meaning
of the universe and of the mystery of human life did not compel his retirement. There’s always next year. (laughing) This year, once again, we’re excited to have
as our guy to the Supreme Court, Miguel Estrada, a partner with Gibson Dunn & Crutcher and
an experienced Supreme Court advocate. Fresh from his audition to play the most interesting
man in the world. (laughing) We always like to have a little fun with numbers
at these events. Many commentators of course have noted the
terms, set them on a record for the consensus. But the number we are most interested in today
is Miguel’s running one loss record in the Supreme Court. As we all know, because we all keep track
of this. Counting his tenure in the Solicitor General’s
office, Miguel has now argued a total of 23 cases before the court. In private practice at Gibson, Miguel’s had
nine Supreme Court arguments and won seven of them. His two losses came in cases involving criminals,
both pro bono cases so no billable hours were lost. (laughing) Putting aside the criminals, Miguel’s win
rate in cases for more typical clients remains a remarkable 100%. Not so much a one loss ratio as just winning. (laughing) So much winning. (laughing) And we are still not tired of it. (laughing) One of the things that contributes to Miguel’s
success is his ability to turn a phrase, whether in argument or outside the courtroom as he
demonstrated earlier this year. Miguel, we recall was nominated by President
George W. Bush in 2001 for a seat on the DC Circuit but his nomination was filibustered
by Senate Democrats led by Senator Schumer. This spring, in response to rumors that he
might be President Trump’s nominee for Solicitor General, another Senate confirmed position,
Miguel issued a statement. “I was immensely lucky to have the chance
to serve our country years ago but it did not work out. I have only respect and best wishes for those
who agree to serve despite the deterioration of the confirmation process over the years. But everyone who knows me in town knows that
I would never accept a job that requires Senate confirmation or for that matter, willingly
place myself in any situation in which convention requires that I be civil to Chuck Schumer.” (laughing) Unusually direct and forceful, some might
even call it Trumpian. (laughing) Now, Senator Schumer himself is a clever man
with a phrase. In filibustering Miguel’s nomination to the
DC Circuit, he dramatically argued that Miguel was, “A stealth missile with a nose cone coming
out of the right wing’s deepest silo.” (laughing) Now, it’s hard to know precisely what that
metaphor means. (laughing) Would Senator Schumer have supported Miguel,
if he somehow lacked a metaphor of a nose cone? (laughing) Does the deep silo referenced reflect the
Senator’s unspoken fear that Miguel was a bad hombre who had tunnels under the border? (laughing) Although Miguel’s judicial nomination did
not work out, it does turn out in retrospect to have been a key step in the cascading series
of events that led the Senate to change the rules for Supreme Court nominations. Permitting nominees to be confirmed by majority
vote with no possibility to filibuster. So in a very real sense, Justice Gorsuch owes
this confirmation to Miguel. (laughing) Miguel’s reputation as an advocate continues
to shine. Washingtonian Magazine described him as one
of the true rising stars of the legal profession. In 2014, The American Lawyer named him Litigator
of the Year. Praising his brains and te- tenacity and describing
him as the lawyer to call for a tough, potentially unwinnable case. Miguel was also selected for inclusion in
the 2015 edition of The Best Lawyers in America in numerous specialties including appellate
law, commercial litigation, and criminal defense. From 2015 through 2017, he was among the Law
Dragon 500 Leading Lawyers in America. Chambers has named him as one of a handful
of attorneys that are ranked in the top tier among the nation’s appellate lawyers. He graduated from Harvard Law School and clerked
for Justice Kennedy. (laughing) He’s a trustee of the Sup- (laughing) he’s
a trustee of the Supreme Court Historical Society and has served as a member of the
Board of Visitors at the Harvard Law School. Miguel was on the short list of potential
Supreme Court nominees issued last fall by Gary Johnson, the Libertarian candidate for
president. So if election 2016 had turned out even weirder
… (laughing) Miguel’s inclusion on the list was a little
known at the time because of course, Gary Johnson was a little known at the time. (laughing) The Atlantic described one of Miguel’s recent
Supreme Court arguments as one of the most dazzling arguments that the marble chamber
has heard in many years. And we’re delighted he’s here to dazzle us
today. Miguel. Miguel Estrada: Oh, wow. After that, uh, fulsome and I do know what
the word means. (laughing) Uh, introduction, um, and to quote, uh, an
actually famous Republican, I feel four feet tall. Um, thank you, Doug, uh, for that very generous
introduction. And thank you all for having the patience
to listen, uh, to me, uh, once again, uh, in a very hot summer. Um, during a very, very, very boring term,
well, uh, when the court was just treading water, um, waiting for a nice in, um, um,
hearing only extremely boring cases. Um, uh, thankfully, uh, for you, I am going
to make up for the extremely boring nature of the cases by taking, uh, by talking about
them for a long time. (laughing) Um, since, uh, I was last year, we have a
new, uh, uh, Commander in Chief, um, and a new Executive Branch or mostly we would have
a new executive branch if there were nominations and appointments. Um, but it’s hard to find nominees, you know. It’s hard with the late nights, you have to
work hard. You have to be cleared by the Senate. You have to meet Chuck Schumer. (laughing) Um, and the Trump administration is especially
hard because you only get one scoop of ice cream. (laughing) Um, uh, we were here as, uh, Doug mentioned. Uh, to mourn last year the passing of a Titan
of a lawyer, Justice Scalia. We still miss him. Uh, in reading some of his courts opinions,
some of which were doozies, um, one just wonders what Justice Scalia would have said and one
really misses what he would have written. Um, and, uh, we miss him still. For those of you have, who have not yet seen
the Society’s documentary on the Justice, it is excellent and touching. And I commend it to you most warmly. Um, so, against all conventional wisdom, the
Republicans, uh, strategy of holding, um, the seat open and waiting for the election
of Donald J. Trump as President of the United States paid off, I myself was a extremely
skeptical. I have to say that I was on record of saying
that, uh, um, this was somewhat unlikely. And that we should take Mary Garland last
summer rather than Nina Pillar this spring. (laughing) Um, I am rarely wrong but when I am … (laughing) But when I am wrong, I do admit it. (laughing) Usually, very quietly and only to myself but
I … (laughing) But I, but I do admit it. Um, but you know, we have Justice Gorsuch
and, uh, you know, uh, the Democrats put up a real fight, a dumb fight but a real fight. Um, they, uh, put up a filibuster. They had to, uh, invoke the nuclear, uh, option. And he got confirmed by a 54 to 45 vote. Um, he had only the April setting up the court. Um, all signs are excellent. His opinions are crisp, lucid. Um, and every sign as Doug pointed out is
that he’s going to annoy the bejesus out of the New York Times. (laughing) Which ma- makes us all very happy. (laughing) Um, as all of you who have been here more
than once and who have been here in the Halcyon day for titles and used to do these things
much, much better than I, um, we have a tradition of starting these events with a prize for
the individual who exemplifies a greater hypocri- hypocrisy, crush dealing and dishonorable
behavior. Um, you know, this is open to the entire country. But hey, this is Washington. And so, you know, the pickings ain’t slim. Um, and so, once again, you know, we have
an embarrassment of riches if you can call them that. Um, and, uh, you know, out of a sense of impartiality,
of course, I have to consider the new President of the United States, uh, who in the very
short span of his administration has managed to upend any sense of normalcy of sanity,
um, that we are usually accustomed to. You know, the alternative facts, the crowds,
the confetti, the tweets, the Micah, the … (laughing) Uh, uh, the plastic surgery. (laughing) Uh, there’s a lot, um, that would make him,
um, a good candidate for this award. Um, but hey, I did just mention Justice Gorsuch. Right? Um, and sort of somehow, he did manage to
stumble into an excellent cabinet. A member of which is seated here with us. Um, and a lot of things are going very, very
well when he’s not tweeting. Um, and finally, one of the most important
lessons that I have learned and, in many years of marriage is that you should never should
incite a fox hole. (laughing) Um, at least not in public. Um, and so, sticking to the other side of
the aisle. Um, we can look at the reading candidates. Of course, we have Hillary Clinton. Um, who perhaps may be a candidate for the
Lifetime Achievement Award in this category. (laughing) Um, she managed to lose an election. Uh, she could not possibly lose and then she
has managed not to know how to shut up about it. (laughing) Um, she ran as a, you know, a woman of the
people who does not know how to run a subway turn style. (laughing) Um, and, uh, she also managed the woman of
the people to call half of the country deplorable. Um, you know, you know, there is no rule against
repeats but we should try to keep our material fresh. Um, so after, you know, a long and arduous
consideration, we’ve decided to give this year’s award to the inimitable and aptly named
Anthony Weiner. (laughing) Um, Anthony Weiner, for those who have been
living under a rock, good for you. (laughs) Um, is a former no neck congressman from New
York City, um, who, um, first had to give up his congressional seat after a sexting
sexcapade. Um, then he was running for Mayor of New York. Uh, and, uh, had to give up that one, uh,
ignominiously because he was again sexting under the very original name of Carlos Danger. (laughing) Um, a very dangerous hombre apparently. (laughing) And, uh, finally, on the eve of the most contentious
election in recent memory, he managed to upend yet another election. This time, not his own. Um, by having a mother load of Hillary’s missing
emails show up in his computer. And so, to him goes the award this year. Um, I don’t think they’re going to let him
keep the trophy in prison but luckily, I think he’s going to make a whole raft of new friends
who like him very much. (laughing) Um, turning, um, to the term statistics, um,
as I … (laughing) As I said, uh, it was sort of dull. We had sort of, uh, 69 cases in total including
seven summary reversals. Uh, 41 were unanimous. You can hear the Z’s already. Um, seven cases only were decided by one vote. Um, the, if you’re looking about how the circuits
did, you know, the sample sizes were pretty small. But in generally, the just, you know, the
circuits that you expect to do poorly based on historical practices did poorly, the 9th,
the 6th and the federal circuit. Um, let’s take a stab at the federal circuit
so we can get the really painful stuff out of the way first. (laughing) Um, uh, you know, the court had, uh, seven
cases out of the federal circuit. Uh, six patent cases and one First Amendment
cases. In each of the six patent cases, the federal
circuit was overturned. It was affirmed in the First Amendment case. Um, you know, the pa- patent stuff is really,
really hard and really complicated. Um, perhaps Congress should give some consideration
in coming up with a specialized court for it. (laughing) Um, but in any event, um, most of them are
so painfully complicated and that some of the status involve, uh, Congress could not
bring itself to even give acronyms to them. Um, they involve things like biosimilar this
and biosimilar that. If I told you about them, especially given
that the outcomes were like, you know, really nothings, blood will start shooting out of
your eyeballs. (laughing) And you will start wishing for Hillary Clinton
presidency. And we don’t want that. So, I’ll just pick one, um, of them to sort
of, um, so that you can, um, sort of say that you’ve heard about the patent cases. And that will be the patent venue case. Uh, TC Heartland versus Kraft. Um, which if nothing else is not exactly interesting
but it’s a good example of the endless stupidity of plaintiff lawyers. Um, and so, to set the stage, um, there is
a venue provision in the, uh, in the patent laws that basically makes defendant suable
where the, uh, defendant resides. There is of course also a general venue statute
that applies to all cases. Um, where, uh, you are generally suable, uh,
in cases where you’re amenable to personal jurisdictions. Now of course, um, there is also this 1957
nugget from the Supreme Court. A case I won’t bore you with, um, that basically
says that a defendant generally resides only in its states of incorporation. So, it basically means that companies could
be sued for patent violations only in the states where they were incorporated. There were other minor provisions of the patent
venues, statute not an issue here. But those were the main outlines of the fight. Um, you will not be shocked to learn that
plaintiff lawyers started figuring out how to apply the general venue statute to patent
cases. And after some changes in the general venue
statute, they finally convinced the federal circuit in 1990 that they could, um, use the
general venue statute to certain patent cases. Not surprisingly, this led to the development
of so-called patent districts where just a handful of districts in the country got all
of the, uh, patent cases. And these were the districts, um, where, um,
shall we say, the plaintiffs lawyers believe that the bench and, uh, the juries understood
them. Um, and so, um, one of the leading examples
is the Eastern District of Texas, which accounts for about 38% of the filings in patent cases. Um, now the metropolis at the center of this,
um, really important, uh, hub of our economy is Marshall, Texas. (laughing) A booming, um, skyscraper filled town of 25,000,
uh, just on the edge of the Louisiana border. Um, it’s really has an economy that is heavily
dependent on patent litigation. Audience: (laughing) Um, and if you happened to, to visit, unlucky
you. Um, you will find that somehow, there is an
ice skating rink, um, sponsored, uh, by Samsung Corporation just across from the courthouse. (laughing) Um, I don’t know. This may be complete coincidence but it may
be that there is just a lot of native skating, uh, talent in rural Texas. (laughing) In any event, um, in a very ten- uh, short
10-page opinion, uh, the unanimous Supreme Court, um, decided to put a pillow over the
face of Marshall, Texas. (laughing) Um, and, uh, perhaps look for skating talent
elsewhere. (laughing) Um, and, um, concluded that the patent venue
statute is indeed exclusive. Of course, you know, never say never. There are other parts of the venue statute
if you, uh, uh, read the recently ol- uh, periodicals, you may have, uh, read that,
uh, plaintiffs lawyers are already trying to sell the local judges in the Eastern District
of Texas that maybe this is not, you know, the end of the road and that they may be future
skating seasons in the offering. laughing) And so, to moving, um, uh, into something
slightly more, uh, interesting and certainly, a lot more important, um, we have a, we had
a number of Bivens cases. And so, for those of you who are not deeply
steeped in Bivens. Bivens is the El Dorado of the left. It’s basically the ability to sue, um, government
officials, uh, primarily cops and Republican political appointees. (laughing) Um, for, uh, violations of the Constitution
in the absence of any statute. Now, if you went to a school other than Yale
Law School, you learned that this all comes from a 1971 case called Bivens versus federal
agents of some drug bureau, um, who busted into somebody’s house. And in that case, the Court 63 held that there
was a cause of action based on the Fourth Amendment itself to sue the federal agents
for damages. Now, you know, the court was cognizant of
the fact that the Congress had provided a cause of action only against state agents
in similar circumstances, Section 1983. But then sort of said, “Well, this is too
important. We’re going to allow you to sue under basis
of the Constitution itself.” Um, and in the absence of Congress not doing
anything affirmatively to tell us not to do it or special factors cautioning, uh, cautioning
as not to do this or warranting hesitation as to put, put it. So that was 1971. 1970s, you know, was not a very good decade. Um, there was bad hair and bell bottoms and,
uh, um, there was also two more Bivens cases, Carlson versus Green in 1980 basically saying
that if you suffer from abusing jail, you had a cause of action under this amendment. And Davis versus Passman in 1979, um, saying
that if, uh, you were sexually discriminated against, you had a cause of action with the
Fifth Amendment. So you have three cases in the grand total
of history of the country saying that you can sue under the constitution. The Fourth Amendment, Bivens, Davis versus
Passman, the Fifth Amendment and Carlson versus Green, the Eighth Amendment. Uh-huh. Uh, so therefore, you know, the gates are
open. And we spent the next 40 years trying every
conceivable amendment and cause of the constitution to see if we could see under it. And the Supreme Court gets wise through this
and for the next 40 years, and yet, and yet, and yet, and yet, that was before, you know,
Putin ca- came around and really was running our government. But never mind. (laughing) Um, uh, and so, uh, everything that was tried,
the First Amendment procedural due process, you want to stick through a benefit suing
private prisons. You name it, you know, the court says no. And every time, it kept moving along and moving
along and moving along. Saying, um, “We have found that this is really
better left for Congress.” So now we come to this term. Um, and we have a spade of Bivens cases, uh,
where the fight seems to be back in the court. And you know, the court sometimes, you never
know what they’re going to do. Uh, and there was one in particular coming
out of the Second Circuit called Ziglar versus Abbasi. Um, Ziglar versus Abbasi is a case in which
the Second Circuit to everybody’s consternation have found in fact that there was a Bivens
cause of action. Um, for individuals who were illegal aliens
from Muslim countries who had been rounded up after 9/11. And who claimed that they had been, uh, rounded
up on a discriminatory basis and been subject to abuse. Uh, while in the prisons in New York as a
result of the unlawful actions by Attorney General Ashcroft. FBI Director Mueller, other federal officials
and the prison warden, a fellow by the name of Hasty. Um, for those of you to whom this sounds vaguely,
uh, familiar, it’s because this, uh, the Supreme Court had heard this case before. Uh, sort of a companion to this case in 2009,
um, in a case called Iqbal. And in that case, you know, the court took
the same allegations. Uh, well, most of the same allegations and
concluded that the plaintiffs have failed to plead a case under Rule 8 and that a motion
to dismiss should be granted. Um, for that case, the court assumed that
there was a Bivens case because he concluded that even if there was a cause of action,
these people had not pleaded a case. And therefore, they could be dismissed. So the cases go back to New York. And these people add allegations which on
the one side, you, you would think don’t change much because they have to do with the use
of multiple lists. But on the other hand also could conceivably
add a fair amount because they involve allegations of actual beatings and abuse in jail. Um, which gets you closer to what was at issue
on Carlson versus Green, which was actual jail abuse. Um, and they also add, what a noble thought,
an actual claim under an actual statute, Section 1985 saying that all of these officials engaged
into a conspiracy, um, with each other because they meet in meetings, in cabinet meetings. And they engaged in approving prisoner transfers
without engaging in individualized determinations. So this goes to the Second Circuit in a two
to one opinion by Rosemary Pooler, um, joined by, uh, George Wesley. Um, the court concludes that all of these
things are, uh, Bivens claims. That there is no qualified immunity and that
there is indeed a conspiracy that can go forward. There is a dissent by Judge Rajiv on all of
these points. Um, there is an on bunk call and the on bank
call is denied by an equally split vote of six to six. Um, so you see where this is going. Though I will sort of footnote here and you
know, reference our, uh, old friend, Chuck Schumer just to point out that you know, the
Second Circuit is a very good court and has many abled people. But you can’t get on it without Chuck Schumer,
uh, concluding that you’re okay. (laughing) Um, and even half this court thought this
was crazy. (laughing) Um, so, moving right along, so the case gets
to the Supreme Court. Um, and in an opinion by Justice Kennedy,
the court concludes that there is no, uh, Bivens cause of action. Now, Justice Kennedy, uh, um, was, uh, my
Justice. I have a lot of affection for him. Um, he has his moments. Um, and this is one of them. Um, he is capable of writing closely reasoned
technically superior at, you know, excellent legal product. Um, where, um, you are actually impressed
by the technical accuracy and the flight or fancy and is everything you could wish on
an opinion. Ziglar versus Abbasi is one of those opinions,
is very closely reasoned, is doctrinal. Um, it is an excellent piece of work. And he goes through all of the cases where
the court has already gone, um, through, uh, previous Bivens cases. And basically says, “Look, bottom line of
this is we did Bivens when we were engaging in a different methodology of constitutional
dedication and statutory of dedication. We have changed how we do both. We now ask for affirmative evidence that Congress
wants us to do something. Not for evidence that Congress doesn’t want
us to do something. So therefore, um, we are not going to get
rid of all of these cases but unless you come to us with the exact same context that was
at issue in Bivens, Davis versus Passman and Carlson, um, we will not recognize actions
in a new Bivens context.” Um, and so, he goes through all the claims
and concludes, um, that these are all new context because of course, it’s national security,
it’s aliens. It’s a number of different things that were
not quite the mundane things at issue in the earlier cases. Um, and to see just how tough he was willing,
uh, to be on this and how, uh, serious he was about this new context, you know, the
tough one on this one was the prison conditions case. Right? Because you could make an argument that are
somewhat high level of generality that there was not a lot of difference between the Carlson
versus Green prison abuse case under the Eighth Amendment. And the claims against, you know, the warden
that he, that these people being beaten and strip searched and completely abused under
the Fifth Amendment. Um, but Justice Kennedy says, “No. That’s a completely different context. The Eighth Amendment versus the Fifth Amendment
makes a difference.” Um, and I’m going into this level of detail
because I think it’s going to be relevant to the next case, which is also interesting. Um, and so now, it seems to me that as it,
as it now stands although Justice Kennedy reported to leave as he, as is his want some
safety hatches here or there, um, we can probably say that all of these Bivens cases unless
you come back with Bivens itself, Passman itself or Carlson itself are pretty much dead. Um, and that, on the whole, is probably a
good thing. Um, there was, of course, a dissent, uh, but
Justice Breyer, um, joined by Justice Ginsburg, um, you may be wondering who everybody else
was. The other, um, interesting aspect about this
case is that this case had a bare quorum. Um, you may know that a quorum of the Supreme
Court is six justices. If there are five justices, the court would
not hear the case. In this case, Justice Sotomayor was recused. We don’t know why but most likely because
she was on the Second Circuit when Iqbal was there. And so, uh, Justice Gorsuch was not yet on
the court. Um, so the court her- uh, heard this case
with six justices. And it, you know, the ruling was four to,
uh, four to two. So we go to our next case, um, which is a
tragic case. Uh, Hernandez versus Mesa. You may have heard about this. It ended up being a nothing. Um, uh, but this case concerned a cross border
shooting by a border patrol agent. And who fired a shot across the US-Mexican
border and shot a 15-year old who was on the other side of the border. Now, I am sure that there ar some stone hearted
people around you that will say that this is why we need a wall. Um, but … (laughing) I’m not one of those people. In any event, depending on who you believe,
um, you know, the, the parents of the dead boy claimed that he was playing with his friends. The border agent, um, claimed that he was,
uh, a recidivous, um, smuggler of aliens who was running away while they were trying to
question, um, one of his friends. Uh, but in any event, he died tragically. His parents sued. Um, the Fifth Circuit, more, more or less
affirmed unanimously in favor of the border agent. But there were a gazillion opinions. Um, and it was sort of interesting. Um, there were claims under the Fourth Amendment
for illegal seizure. And there were claims under the Fifth Amendment. Um, now everybody sort of agreed on the Fifth,
on the Fourth Amendment. There was a case when the Supreme Court called
Verdugo-Urquidez that says that the Fourth Amendment doesn’t apply in Mexico. It was actually involving Mexico. So it was hard to get out of that one. (laughing) Um, there was a fight on the Fifth Amendment,
uh, because there is a case from the 1940s called Johnson, Johnson versus Eisentrager,
uh, which involved Nazis trying to get habeas corpus out of a camp in Germany where there
was an opinion from the Supreme Court, uh, saying in somewhat outrageous terms. “What are you Nazis talking about?” Um, the US constitution doesn’t apply out
of the country. It’s sort of inconceivable. And that involved, you know, the Fifth Amendment. Now, the fight, um, would have ended there
but for the fact that there is an later opinion by, you guessed it, Justice Kennedy called
Boumediene, which held that habeas corpus was available in Guantanamo Bay and that led
the Fifth Circuit to have a fight as to whether George W. Bush versus Eisentrager was good
enough law. So the compromise was that they agreed that
because this was unclear, um, the border patrol agent was entitled to qualified immunity. And let it go at that. There were a lot of fighting, sort of concurring
opinions. I think, um, there was an interesting concurring
opinion by Judge Edith Jones who dropped a footnote saying, “Um, and oh, by the way,
hello, Bivens.” Um, and so, the parents of the victim go to
the Supreme Court for cert on the constitutional and qualified immunity questions. And the Supreme Court takes the case but adds
some Bivens questions. So the Supreme Court, uh, comes forward and
adds, you know, the Bivens question. It, it is again one of those highly watched
questions. Um, after Ziglar versus Abbasi, the courts
kicks the, uh, you know, the court kicks the, um, case back without deciding itself, the
merits sort of. Um, it’s tells the Fifth Circuit to consider
the case in light of Ziglar, which you would think in light of the Kennedy opinion means
this is not a new context go away. But somehow feels compelled to write an opinion
reversing the Fifth Circuit’s application of qualified immunity law because the Fifth
Circuit in the court’s view had improperly relied on facts that were not within the knowledge
of the officer. So in some ways, one of those compromise opinions
that issued out of the Supreme Court this year where they were sending it back obviously
to get a hard put through a stake through, you know, a stale put, stake put through his
heart. Blah. Um, but somebody felt compelled to say, “But
you got to say this about qualified immunity.” Final quick case, which is not exactly a Bivens
case but I got to mention it some place, um, is an excessive force case, um, and then try
to, again one of those Ninth Circuit specials is Count- County of Los Angeles versus Mendez. Everybody knows, again if you didn’t go to
Yale Law School, um, that excessive force claims are governed by an opinion from 1990
called Graham versus Connor. If a cop like beats you, kills you or engages
in some use of force that seems excessive is governed by the ever helpful totality of
the circumstances test. Um, and so, of course, you know, the Ninth
Circle always marches to the beat of his own drum. Um, and since the 1990s, it has had something
that it calls the provocation, uh, rules. Um, under which, uh, a use of force that otherwise
might be completely reasonable becomes, uh, a basis for liability. Um, if the cops gave rise to the situation
that ended up in the use of force. So the facts here are Sheriffs are looking
for a fugitive. They go into an empty lot that has a shack
at the end. They bust into the shack without a warrant
and with, without knocking and without justification, um, Mr. Mendez is fast asleep with his girlfriend. He reaches for a BB gun, um, the officers
shoot him and the girlfriend very badly. He ends up having a leg amputated. And so, everybody, even in the Ninth Circuit,
uh, sort of agrees that this was a violation of the Fourth Amendment. Uh, and that the use of force was justified
because he had a BB gun. Um, but the Fourth, uh, but the Ninth Circuit
says, um, under the provocation rules, since you shouldn’t have gone in and you gave rise
to a situation, uh, please pay. Um, the Supreme Court takes the case. Uh, and unanimously sets that aside, which
you would think is a victory for some common sense. Um, but there is a lot less here than meets
the eye. Um, what the court did was to say that the
provocational rule is not an exception to the totality of the circumstances, um, rule. But in the only footnote to the opinion, um,
the court refused to rule out, you know, the possibility that the circumstances giving
right to, giving rise to the so-called provocation could be part of the totality of the circumstances
that could lead to liability. And I am here to tell you, Judges Langford
and Ferguson have done a lot more with less. (laughing) And so, we’ll see how that turns out. Um, so, uh, First Amendment. You know, the court had a number of interesting,
uh, cases in the First Amendment. Um, you know, the leading, uh, and most interesting
case in the First Amendment, you probably heard about is a, somewhat unlikely trademark
case. This is the case that I mentioned earlier
from the, uh, federal circuit, the one case out of seven in which, you know, the federal
circuit was affirmed. And it involves a provision of The Lanham
Act that tells the PTO not to register marks. And I quote, “Disparaged portions living or
dead, institutions, beliefs or national symbols.” Now, this has become, um, sort of a very,
uh, ala mode, um, uh, actually, we use that in this country for ice cream, don’t you? (laughing) Um, a very, uh, fashionable, um, uh, provision,
uh, uh, to use in the left, uh, ever since the 1990s where Native American, uh, groups
starting, uh, started, um, asking the PTO to cancel the trademarks, uh, for the Washington
Redskins, uh, on the theory that they were offensive to native, uh, to Native Americans. Uh, in 2014, um, as the winds of political
correctness, uh, reached Gail and cyclone speeds, um, uh, the PTO finally, uh, succumbed
to these entreaties and blandishments and canceled all of six trademarks of the Washington
Redskins. Uh, to give you an idea, according to the
team, it is worth 2.4 billion of which it says 214 million or almost 9% of the value
is actually attributable to the Council trademarks. So at the same time as the sad story of the
poor Washington Redskins was playing itself out on the national stage, um, Simon Tam,
uh, who is he says a musician, so you can get the DVD and judge by yourself. (laughing) Was trying to trademark, uh, his so-called
music group, um, that he wished to call The Slants. Um, I was myself not aware of this. But apparently, you know, The Slants is a
slur for, uh, people of Asian descents. And on that ground, the trademark office declined
to register the trademark. Uh, it was to no avail that, uh, Mr. Tam explained
that he wished to reclaim, um, the slur and to turn it into something positive and good. Much as some, uh, African-American, um, um,
groups have done with slurs that I’m not allowed to say because I’m not African-American. (laughing) Um, and that in fact, it can only be said
in rap songs. (laughing) Um, but in any event, um, Mr. Tam and his
band, um, of renounced sued, uh, and the federal circuit, um, uh, held that this provision
of The Lanham Act was unconstitutional on its phase. So, the poor federal government and the Solicitor
General had no choice but to go to the Supreme Court because an act of Congress had been
invalidated. And when that happens, you really have to
go unless it involves same sex marriage or something else. (laughing) Um, and so, off, off they went to the Supreme
Court. Um, and but they had a lot of trouble coming
up, um, with arguments as to why this statute might be constitutional. So the easiest way to exit and the first one
that the government tried, um, not a reasonable, not unreasonably given the Texas versus Walker
case, you know, the license plates case from a couple of terms ago was to say that the
First Amendment didn’t apply to this at all because this was government speech. Trademarks were government speech. Um, and in a unanimous opinion on this point
but Justice Alito, um, the court had no trouble, um, getting rid of this argument. Um, Justice Alito, uh, said, “Well, you know,
you know, the government doesn’t come up with the trademarks on its own. It just approves what it gets. Um, if you look at trademarks, the government
will approve flatly contradictory trademarks in favor of abortion. So I’m pro abortion.” And as he then delicately put it, um, and
if this is really government speech, uh, you know, the government is not only battling
but also saying some, some unseemly things. Audience: (laughing) Here, um, he very coyly cited to an Amicus
brief cited, uh, that, that had been filed by the NFL, um, which really funded by the
Redskins. Um, which contained a very instructive appendix. I don’t know which, um, hard working associate
or own porter had to go pull these things out. Audience: (laughing) Um, you know, Justice Alito mercifully did
not quote what sort of government speech might be at issue in this trademarks. But hey, you know, here we are. Um, and so, some of the trademarks that were
government speech included take your panties off. Hey, it, it will still be the Bill Clinton
administration. (laughing) Um, or perhaps for that era, wet Uranus personal
lubricant (laughs) would be more fitting. (laughing) By the way, that’s Uranus as in the planet. (laughing) Um, there was also capitalism sucks donkey
balls. (laughing) Which I take it was the slogan of the Obama
administration. (laughing) Again, it was dirty hooker, which I think
was being held in reserving case Eliot Spitzer makes a comeback. (laughing) Um, and there were a number of others, you
know, that was, uh, smack my ass and call me Sally. (laughing) Which someone improbably use for condiments. (laughing) Um, then again, you know, my all time favorite
is the devil is a Democrat. (laughing) Anyway, there were even better, uh, but you
can see why the government speech sort of argument didn’t get very far. (laughing) Um, in any event, um, Justice Alito went on
for, uh, himself and three others that is poor justices. Um, also to turn down the government’s argument
that this was a subsidy on the part of the government. Um, and also to turn down a commercial speech
argument because of over breath. Um, there was a separate opinion for four
justices by Justice Kennedy, uh, joined by Justices Ginsburg, Sotomayor and Kagan, um,
who took the view that this was viewpoint discrimination and that therefore, that was
solely all that was needed to hold this, uh, unconstitutional after, after turning down
the government’s, um, argument based on government speech. And therefore, he, he, uh, really did not
need to say anything about the subsidy or the commercial speech arguments. And so, that is, uh, Matal versus Tam. That may be the only, uh, interesting case
you’re going to hear today. (laughing) Um, so our next First Amendment case Expressions
Hair Design versus Schneiderman. So the background of this is that in 1976,
Congress made it illegal for businesses to charge more when you pay for a credit card. And so, under the federal statute, there were
a whole bunch of different notions as they usually are. And the only thing that was really illegal
was to add a surcharge when, um, you pay with a credit card. So, the statute, sadly expire in 1984. It was not renewed but as, as often happens
in blue states, uh, New York thought this was a handy idea and they came up with their
own statute. As often happens in blue states, they really
didn’t think about it. And they didn’t put any definition. So people don’t actually know what the state,
uh, what the statute actually covers. Um, and so, this goes to the Second Circuit. People claiming this is a violation of the
First Amendment. And if you’re sitting at your chair wondering
what the heck does this have to do with the First Amendment, you would not be alone. The Second Circuit concluded that this was,
uh, price regulation. And that it was all fine. The Supreme Court, uh, took the case and concluded
that it was a First Amendment issue. Um, and if you’re wondering why, let me give
you a very abstract hypothetical. You go to a bodega in New York City, uh, looking
for a banana. The sign at the stand says it’s $10. It is New York City. Audience: (laughing) Uh, and so, you go to pay and at the cash
register, there is a sign that says 3% discount if you pay cash. You, of course, are a law firm associate. You never carry a scrap of cash on you. You pay plastic. $10 off you go. Nothing happens. Next week, you go to the bodega next door
to your house. The sign says $9.70 for the banana. And the sign at the cash register says 3%
surcharge for the, for the credit card purchase. You still have no cash on you. You pay the same 10 bucks with a credit card. And all of a sudden, Eric Schneiderman has
a SWAT team and bull horn and a padlock and you’re going off to jail. And so, Chief Justice Roberts thought that
the possibility might work this way meant that that was, uh, that that was a speech
issue here somehow. Of course, we don’t know how the statute works. Um, and so, this is perhaps evidence that
that court was looking for something to do this term. And because … (laughing) As three justices pointed out, maybe the thing
to do was to send this to the New York Court of Appeals to tell us what the New York law
actually is. Um, an actual First Amendment case, uh, that
the court decided, uh, Packingham versus North Carolina. I have it, I have it here someplace. Maybe I need to find that. Here it is. Um, excuse me. I used to be organized when I was young. (laughing) Um, so Packingham versus North Carolina, un,
involved, in North Carolina statute, that made it a felony for a registered sex, uh,
uh, sex offender to have access to “a commercial social networking website where the sex offender
knows that the site permits minor children to become members or to create personal web
pages.” Okay. So the general idea, you can see the common
sense of this. You don’t want sex offenders trolling, um,
the web for small boys and girls. Now the problem, um, with this statute is
that it came to the court, everybody pretty much sort of agreed that it applied to the
sex offender going on Facebook, Amazon, WebMD and even The Washington Post on the very strange
assumption that anybody reads it. (laughing) Um, and so, um, and so, it was pretty clear
that the statute was actually going down. And the question was sort of how? And you know, the answer was sort of obvious. But hey, you know, uh, the opinion ended up
in the hands of Justice Kennedy. And you know what happens when that happens. (laughing) Um, and so, Justice Kennedy begins, uh, tells
you how the statute works. And, uh, um, he begins his analysis and I
do not use the word advisedly. Um, with, with, you know, the following sentence. “A fundamental principle of the First Amendment
is that all persons have access to places where they can speak and listen and then after
reflection, speak and listen once more.” (laughing) So, for those of you who were not previously
aware, wash, rinse and repeat is a fundamental principle of the First Amendment. (laughing) So, then we have this other gem. “The nature of a revolution in thought can
be, not is, can be that in this early stages, even its participants may be unaware of it. And when awareness comes, they still may be
unable to know or foresee where these changes lead.” Maybe the men should have coffee in the morning. (laughing) Um, in any event, um, you know, I just read
you some tidbits. You know, the entire opinion, it’s sort of
a classic of the ANK General when things go bad. (laughing) Uh, it’s a lot of sweeping, grand, eloquent
platitudes completely unconnected to any relevant legal premise. Um, and if you read it, uh, the one thing
that comes to mind, um, or kept coming to my mind anyway was what Justice Scalia, um,
called the sweet, the sweet mystery of life passage. Uh, where, you know, pure existential grandiosity
ate the rule of law. (laughing) Um, and so, so after all of this, you know,
Justice Kennedy goes on to tell us that the internet is the modern public square and that
is the only way to have people, you know, have their voices heard. And it’s a vast potential to alter how we
think, express ourselves and define who we want to be. This is why you think about, you know, our
concept of liberty, existence, meaning and the universe and you know, the mystery of
human life, um, uh. (laughing) Anyway, um, and so, now the internet is the
modern public square. Um, and on and on and on. And, and oh, by the way, this statute is bad
because it’s too broad. You think? (laughing) Um, so, poor Justice Alito, uh, uh, joined
by the Chief Justice and Justice Thomas wrote a concurrence that I think could barely conceal
his despondency of having a life sentence in this asylum. (laughing) Uh, read it. (laughing) He described that his candidate’s opinion
as undisciplined dicta and lose rhetoric who, he might want to put that in a macro for future
use. (laughing) Um, and worried about the implications of
all of the comparisons, you know, between the internet and the public square. Fair enough. I mean, he would have said that this was clearly
over broad. And left everything else for, uh, for the
future, which would have been sensible enough. Um, final First Amendment case is not a speak
case. It’s a religion case. This case was actually granted, um, um, shortly
before Justice Scalia’s untimely death. But for some reason, the court did not see
fit to, uh, set it up for argument until it had a full complement of justices. Perhaps, uh, it thought that it was going
to be, um, a contentious and divided case. Um, and for background to this, just let me
take you back to the 19th Century where President Ulysses Grant, um, during a rare sober moment
or perhaps not, uh, proposed a constitutional amendment, um, to prohibit public aid to parochial
schools. Um, this failed, uh, in the US Congress. Somewhat narrowly, uh, but it did catch on
in the states and over time, about 38 states ended up adopting what has become, uh, known
as Blaine Amendments after the Republican Congressman who was in charge of putting this
through, through the US Congress and basically, all of these things to one extent or another
say that you cannot give public aid to, uh, religious schools or other institutions. Now, Missouri has a couple of these things. They’re sort of double borrowed in the, double
barreled in the show me state. Um, and also has a program that happens to
reimburse non-profits. If they purchase and installed playground
surfaces made from recycled rubber tires. So Holy Trinity has its school for little
tykes. The playground has pea graveled. The tykes get, you know, sore knees. It’s all very sad. They applied, uh, for the resurfaced, uh,
playground under the, under the program. Um, the state is showing that they need to
hire lawyers. Um, send them back a letter saying that Holy
Trinity had scored very high. I think like five out of 20 in all of the
secular, uh, criteria but that the only reason they were not getting this grant is that you’re
tied to a church. Um, so let me give you a gift of acknowledging
standing in, we’ll be waiting for your lawsuit, which of course it didn’t come. (laughing) Um, I mean, really, hire some lawyers, people. (laughing) How about, you know, we had many qualified
applicants. We regret we could not accommodate you. (laughing) Uh. (laughing) In any event, um, and so, Trinity
Lutheran, um, sued and it lost in federal district court and it lost two to, uh, one
in the Eighth Circuit. And the Supreme Court in a surprisingly lopsided
opinion by the Chief Justice with only Justices Sotomayor and Ginsburg dissenting concluded,
um, that the state lost. Uh, the Chief Justice basically concluded
that denying a generally available, uh, public benefit solely on account of religious identity
is a violation of the free exercise clause. Uh, for this proposition, you know, the Chief
Justice mostly relied on a, um, case by the name of McDaniel versus Paty, a 1978 decision
in which the court had held it was unconstitutional for Tennessee to say that ministers could
not be members of the constitutional convention. Now, this all sounds very, very reasonable,
doesn’t it? Um, except, um, there was this little case
called Locke versus Davey in which a lopsided Supreme Court led by a different Supreme Court
Chief Justice, uh, Rehnquist had held, um, that the state of Washington who also had
one of these Blaine Amendments, um, did not have to give a grant to Mr. Davey. Um, who had also qualified for a student grant
to go to college to study. Based on high grades and poor income, um,
and non, you know, secular criteria because Mr. Davey had announced that he wanted to
use his grant to go become a minister. Um, and when the case, you know, oddly enough,
the Ninth Circuit had ruled for Mr. Davey saying, “Well, you, you can’t deny Davey access
to a generally applicable public benefit just because he wants to use it to go be a minister.” Uh, he qualified on non, you know, non re-
religious grounds. And the Chief Justice, seven two, Chief Justice
Rehnquist in Locke versus Davey overturned the Ninth Circuit, um, and said, “No, no,
no, no, no. You know, to be sure Washington could do that
if it wanted to, uh, without violating the establishment clause.” But the states need play in the joints between
the establishment clause and the free exercise clause. And therefore, it is not a violation for Washington
to tell Davey that although this scholarship is available to everybody else, and would
be available to him if he wanted to be, become a lawyer, he cannot get it if he wants to
become a minister. Justices Scalia and Thomas dissented, in that
case, making, you know, the argument basically that Chief Justice Roberts made in this case. And so, um, the fly in the ointment, in this
case, is of course that the Eighth Circuit and the district court in the Trinity Lutheran
case had thought that Locke wa- Locke, Locke versus Davey was controlling. The Chief Justice, uh, Chief Justice Roberts
gave Locke versus Davey basically the back of the hand saying, “Oh, no. I mean, you know the problem there was that
Locke, um, that Davey was, uh, not getting the money because of who he was but because
of what he wanted to do with the money.” Which is the type of thing that you can say
at oral argument that the red light is coming on and you got to escape with your life. (laughing) But otherwise, or if you’re the, you know,
S- Supreme Court of the United States and you can do less, a Brown versus Allen and
say, “We’re not final because we’re infallible. We’re infallible, you know, we’re in- infallible
because we’re final.” I mean, yes, you can say it. Um, Justice Gorsuch, uh, wrote a concurring
opinion but basically sort of saying this is word play and it’s not really going to
work. We would do better to say that Locke versus
Davey is a special rule saying that we’ll give a pass to states where they just don’t
want to fund the ministry. Um, so that’s where the play in the joints
currently stands. But let me s- speed up and talk about some
of the class action cases sort of quickly. Um, they’re not that interesting except that
of course, um, some of the wackiest thing come from the west of the country. Um, you know, the first one is Microsoft,
uh, versus Baker. Uh, there was a class action filed against
Microsoft on the theory that the Xbox sort of scratched, you know, the discs. The district judge sort of sensible concluded,
sensibly concluded that this was not a class action because there were individual issues
of causation damages, etc. plaintiffs try to take it and re-appeal to the Ninth Circuit. Ninth Circuit said no. Um, and so the plaintiffs said, “Okay. We’ll come back to federal district court
and ask for the district court to enter a judgment against those with prejudice.” Okay? So the district court did that. The plaintiffs then appealed to the Ninth
Circuit purporting to appeal the class certification denial. The Ninth Circuit and this only happens in
the Ninth Circuit, um, concluded that this was a good way to review the class certification
denial, vacated the class certification denial and concluded that this somehow brought to
life the claims of the individual plaintiffs that they had asked to be dismissed with prejudice. Um, at the Supreme Court, everybody was in
agreement that this was loopy. (laughing) They just, they just could not agree on the
exact theory. Justice Ginsburg speaking for a majority of
the court concluded that this was not, in fact, the final judgment on the troll 91 because
it was an invasion of rule 23(f) and an earlier Supreme Court opinion, um, called Coopers
& Lybrand versus Livesay where, you know, the court had overturned something called
the death knell doctrine. Um, that, you know, you don’t actually need
to go, uh, need to know. And if you went to Yale Law School, you actually
don’t know. (laughing) Um, Justices Thomas, uh, the Chief Justice
Alito actually gave, what I think is a more coach intenser. There is, of course, a final judgment since
the case was dismissed with prejudice. Um, but there is no real Article 3 controversy
because you asked that the case be dismissed with prejudice against you. You have no longer anything to complain about. Um, there was an important, uh, securities
case raising, you know, the question in everybody’s mind here as to whether, um, the American
Pipe tolling rule applies to statutes of repose. You know, the short answer is no. Um, there are many detailed answers to that. Um, if you went to Yale Law School, I would
just do up sort of a little aside to explain to you that statutes of repose are not the
same thing as statutes of limitations. (laughing) Statutes of limitations sort of apply from
the discovery of what happened to you and give you a time to file a lawsuit. Statutes of repose for the benefit of the
defendant. If you give, you know, the bad deed after
a certain time, you know, the time has expired and you’re considered to be home free, and
you can sort of go, “I’m off.” And so, that sort of statute is generally
not limited to equitable tolling including American pipe that was five-four. Um, the, uh, very important and yet somewhat
dull, uh, case of Bristol-Myers Squibb versus Superior Court of California presented, um,
the all important question whether the due process clause gives volume discounts to plaintiff
lawyers. Um. (laughing) Um, again, and I’m sorry to sort of pick on
Yale Law School, but hey. (laughing) Um, under the court case law, there is general
jurisdiction. You are subject to sue into state for all
purposes. And there is specific jurisdiction. You, you went into the state, punched somebody
in the nose. He can sue you over the punch in the nose. And so, one is general jurisdiction ride. You live there and you can be sued there for
pretty much everything you do. And the other one is specific jurisdiction. You went into the state. You don’t live there but you punched Ted Olson. He can sue you there for the punch in the
nose. Um, and so, in this state, um, there was a
claim that Bristol-Myers, which sort of lives out in the East Coast, uh, in New York and
New Jersey had sold a blood thinner, um, that caused bad things. And a number of lawsuits were filed in California. Um, and, um, so far, so good and, and some
of those people actually live in California and could claim that there, that was specific
jurisdiction because Bristol-Myers had sold them, you know, the stuff in California. Now, added to that, about 500 other people
wanted to join the suit from other states. And the Supreme Court of California thought
that that would be specific jurisdiction to have all, that the hundreds of suits from
everywhere in the country because in for a penny, in for a pound. And it concluded they would apply a sliding
scale because taken into account that all of the California people were raising the
same claim and that Bristol-Myers had other contacts in California, it was sort of fair
to sue Bristol-Myers on the whole kit and caboodle in California. Um, the Supreme Court again by a lopsided
vote said, “No.” Justice Alito, um, called this sort of a loose
and furious form of general jurisdiction. Um, and said, people, if you want to plead
general jurisdiction, um, you have to sue in the state where, you know, the thought
actually happened to you. Uh, no big surprise there but it’s always
good when, you know, the law actually turns out as you hope you would be. Um, which since we’re about to turn to criminal
cases and, you know, the first one is an example of that not happening, um, uh, is sort of
a good point to end, you know, the class action cases. So, criminal law. Um, the first case is actually a very interesting
and big case. It’s called Pena-Rodriguez versus Colorado. How many of you have heard of this very landmark
case? No. It’s actually, um, so, uh, this is, uh, a
case that well warrants your attention. Um, and as much as I love the man, it’s one
of those cases that really well showcased Justice Kennedy’s unique talent to take whole
areas of the law that had withstood the souls of centuries and turn them into draws. (laughing) Um, so I’m not kidding. Since, since the 1700s, uh, the common law
rule has been that jurors cannot testify about what happened in the jury room. Um, this rule dates from, you know, Lord Mansfield
who had cases where jurors came in one casing. We want to tell you that we actually reached,
you know, the verdict, uh, by averaging, you know, the damages and in the other one, um,
we’ve reached, you know, the verdict by lot. And he said, “No, no, no, no, no. Uh, no, no. That is admissible.” This became, you know, the rule in the new
country. And now, you can find this in federal rule
of evidence 6 or 6B where the general rule is what happened in the jury room is like
Vegas. Sort of stays in the jury room. Um, and the exception is, you can, uh, look
into external influences. So, things that happened or was said in the
jury room are completely inadmissible. Um, if the mob kidnapped your sister to sort
of get you to vote for an acquittal, that’s admissible because that’s considered an external
influence. So no, so now we’re all on this. Um, and you know, you know, jail is really
an unpleasant place. Right? So this is not the first time that a criminal
has thought of like, “Oh, gee. Whiz, let me go find a juror who will say
something helpful. See if I can upend, you know, the verdict.” And, and sort of make a claim that this is
really bad under the Constitution. Um, and some of these places, uh, are quite
compelling. My favorite, you know, example is Tanner versus
the United States. Right? Mr. Tanner, um, got a very heavy federal rap,
um, and after, you know, he was convicted, there were some very good evidence from a
number of the jurors, um, that you know, the jury, um, uh, room had been, well one of them
described as one big party. Um, and so, there were pictures of beer. The jury foreman, um, had a leader of wine
at lunch every day. Now I know what you’re thinking. I’ve had lunch with Leonard, too. (laughing) Um, but, um, that was not it. Right? I mean, it was, they were smoking pot and
snorting coke. Um, it was a regular Bernie Sanders rally,
this jury room. (laughing) And so, all of this comes to the Supreme Court. And the Supreme Court says, you know, Justice
O’Connor says like, “No. Common law rule, Lord Mansfield. Hello?” Um, and so that’s that. Um, and of course, there was a Second Amendment
claim. And I’m entitled to an impartial jury. And I think it would be hard to argue that
if your juror is in a magic carpet high as a kite, then maybe that’s not impartial. Uh, but no. Uh, and so, Colorado is one of 42 states that
has the identical rule 6 or 6B. Um, and Mr. Pena Rodriguez is a, is a, um,
sort of unclear. I think he’s a Mexican alien who is in this
country. He may be a legal resident. It’s unclear. He was persecuted for sexual assault in, uh,
in a horse racing, uh, track of two little girls. Um, and after the jury convicted, defense
council got affidavits from one or two jurors who stated that one of the juror, HC had expressed
anti-Hispanic bias. Now, among other things, this juror, HC, um,
had called the alibi witness an illegal even though apparently, he was a legal resident. And he also stated that in his experience
as a former law enforcement officer, “Mexican men have bravado that made him think they
could do whatever they wanted with women. Nine times out of 10, Mexican men were guilty
of being aggressive toward women and young girls and that, that the defendant did it
because he’s Mexican and Mexican men take whatever they want.” Now, I don’t know why we would make a federal
case out of there, out of that. I think we should put this guy on a bus with
Billy Bush and just, that would just take care of the problem. (laughing) Um, anyway, so the Co- Colorado courts took
all of this in and say, “Uh-huh. Mm-hmm (affirmative) Rules 6 or 6B.” Um, and but the case goes to the Supreme Court
and an opinion by Justice Kennedy 5-3. Justice Kennedy concluded, uh, that applying
the no impeachment rule in these circumstances was a violation of the Sixth Amendment. Now, you can read the opinion and the reasons
are a little bit fuzzy. So the first part of the opinion, um, is as
whole and explanation as to what a good idea the no impeachment rule is and its long history. And I’m in but I don’t see how this is helping
him. (laughing) Um, then we take a left turn, different Roman
numeral. We talk about the Civil War amendments and
how bad racism is. Again, check, check, 14th Amendment good. Racism bad. This is not a 14th Amendment claim. Nobody’s claiming equal protection. It’s a Sixth Amendment claim. I’m not seeing how this is helping. Um, then we get to the key part of the opinion. Uh, what is it that he says? Um, he says, oh, yes. New Roman numeral. This case lies at the intersection of the
court’s decision endorsing the no impeachment rule, part one. And its decision seeking to eliminate racial
bias, part two. But these lines may not conflict because we
can make an exception. Okay. (laughing) Um, I don’t know how many of you, uh, know
one of those lesser known, uh, Gilbert & Sullivan plays, Iolanthe. There is, you know, um, uh, this scene where,
uh, uh, everybody is wringing hands going, “Oh, but the law is clear. Every fairy must die who marries a mortal.” And the Lord Chancellor comes in and says,
“Oh, the subtlety of the legal mind is equal to the emergency. Let the law read every marry must die who
does not marry a mortal.” And there you are. Out of the, out of the problem at once. And this is just Iolanthe, but you know. (laughing) Gilbert & Sullivan was supposed to be a joke. (laughing) Now, um, put Justice Alito, um, you know,
the tone of his dissent could perhaps be, uh, described as in between incredible, incredulous
or like a long patient sigh. He, of course, goes like, “We’ve been through
this before. And you know, coke, coke Tanner, um, and you
know, uh, we’ve had this rule for a long time. And this has nothing to do e- exclusively
with race because the juror will be equally as irrational if he didn’t like the defendant
because he was a Domer. Um, and he was hell bent on convicting him
because he went to Notre Dame. Um, and but, all to no avail. So sticking quickly with Justice Kennedy because,
you know, he does get a little bit court work. Um, we had another criminal case, Weaver versus
Massachusetts. You know, the basic rule here, uh, in the
background is that if you close the courtroom during voir dire, um, that is a violation
of your right to a public trial. And is not subject to harmless error because
it’s called structural. Um, and, uh, that happened in the Voir dire
on Mr. Weaver and Massachusetts. Um, he’s doing a brief period, there were
too many jurors. His mother and his pastor could not, um, get
in to give the fisheye to the prospective jurors. And this was a tragedy. Uh, but nobody thought of saying boo about
it at the time. And so, years later, he filed an ineffective
assistance claim. And so the question is whether, uh, you know,
the fact that Voir dire is structural matters in the context of the ineffective assistance,
uh, case. Justice Kennedy writes 16 opinions, uh, telling
us, and pondering about what it means for an error to be structural, for trials to be
fair and for life to be good. Or to conclude that this was sort of like
a short period of time and probably didn’t matter anyway. Justice Alito subtle cuts to the chase saying
that, uh, you know, the public, uh, courtroom claim was not at issue here. All that’s at issue is ineffective assistance. By definition, and Strickland says so, it
requires you to show prejudice. Can we go home now? (laughing) Um, there is a, another ineffective assistance
of counsel, uh, claim called Lee versus the United States. The short version of this is that if your
lawyer really assures you that you’re not, you’re not going to be deported and he is
wrong, that’s ineffective assistance. Uh, and if you plead guilty, you don’t have
to show that you have been acquitted. Uh, you just have to show that you would not
have been pleaded guilty. Um, there was a, a double jeopardy case for
those of you who really, really, really have no private life. Um, it really pits two extremely obscure rules
of double jeopardy, col- lateral estoppel law. One of them says that if you have inconsistent
verdicts, that is to say, the jury convicts you on one count and acquits you on the other
and they’re completely inconsistent, it’s just crazy that they did this. Um, you’re stuck because as Oliver Wendell
Holmes said in a case in 1920s called done, you know, either they were lenient or crazy
or irrational and who cares? Go. (laughing) Um, um, the other one is a case called Yeager
in which, you know, the court said, um, if the jury convicts you, um, no. If the jury acquits you in one case and hangs
on the other, then you’re entitled to the collateral estoppel effect, uh, from the acquittal
on the hung count because the jury did not decide anything inconsistent. And so, the issue in Bravo is the all important
question of what happens if you have seen, uh, number one, you have two inconsistent
conviction and acquittal. But on appeal, the Court of Appeals flips
the conviction. And, uh, then you get, you know, the benefit
of the other. Now you have a vacancy there. Can you use collateral estoppel? The Supreme Court said no. Um, you still have inconsistent, um, you still
have inconsistent verdicts and the other rule controls. We have a number of cases, um, having to do
with criminal statutes. Um, short, uh, long story short, um, if you
sort of try to steal from somebody’s bank account, and you get persecutor under the
bank fraud, um, it will not help you a lot to say that you were trying to steal from
the depositor rather than from the bank. Um, that was 9-0. Um, if you are hoping to claim that the sentencing
guidelines are vague because they’re just identical to a statute that the court already
found vague that will not help you a lot because the sentencing guidelines are not mandatory. That speckles. Um, if you are engaged in an insider trading
by giving tips to your brother or your brother-in-law or your wife, um, um, you’re in trouble because
the court in Salomon versus the United States held that that is still a violation of 10b-5. That actually is a case in which I probably
would say a couple more words because, um, this is one of those areas of law in which
we actually have no statute. And of course, they’ve made it up as they
have gone along. Um, there was a huge fight in the East Coast
in the Southern district where, um, that paragon of restraint freed Barrera who only recently
had to be, you know, removed, uh, from his office by prying his fingernails off the door
jam. (laughing) Um, had, uh, been indicting people by superseding
indictments in front of the same judge. The judge that he agreed that he knew would
agree with his view of the law and avoiding all the other judges. The Second Circuit got sort of mad with him
in a case called Newman and sort of cut back on the insider trading law. The government tried to take the case up to
the Supreme Court and failed. Um, but in an out turn of events, one of,
uh, these judge’s colleagues, Jed Rakoff got somehow invited to sit by designation in the
Ninth Circuit where he promptly got assigned an opinion that disagreed with Newman. That case got, um, got, uh, taken up to the
Supreme Court. And somehow achieving the double feed of getting
Jed Rakoff and the Ninth Circuit both affirmed, uh, by the Supreme Court in the same case. Um, so we have, oh, yes. Just a couple of minutes for the important
property rights case of the term Murr versus Wisconsin. Um, it is sort of an absterge case because
it involves the area of, uh, regulatory takings. Um, this was sort of a case mostly about methodology. Usually, you start by defining what the property
interest is. Um, this is your house. Um, you know, the government is trying to
X, Y or Z to it. Have they done too much to it? Have they taken too much of the useful value? The issue here is how do you define, you know,
the area of property. What happened here was that the Murr’s had
two properties that have, that have come to them as inheritance from their parents. The law in Wisconsin, because this was a scenic
area, was that if you had two lake front properties, you could not sell them separately. You had to develop them as one lot because
they didn’t want to have overly developed lake front property. And the question was whether that was a regulatory
taking. Um, this was a very complicated fight but
the essence of the fight at the end of the day was whether, um, the state could engage
in what amounted to double counting but enga- by redefining the property interest on the
front end by saying, “We deem this to be a single property, uh, lot already encumbered
by this restriction.” And then doing the usual regulatory analysis
on the backend. And that’s what Justice Kennedy said was the
right answer over a, uh, dissent by the Chief Justice basically saying that that’s, this
basically would mean that states would circumvent all of the restrictions on regulatory takings. Um, I should probably say a couple of words
about, um, cases that are coming up next term. And in particular, you know, the one that
the court took, um, you know, the last day of the term, the so-called travel ban case. There are a couple of other boring cases having
to do with cases under the discrimination laws and whatnot that I’m sure you probably
rather than hear about. Um, and so, uh, so the travel ban case. There are actually two cases on the next term,
um, that are very interesting under the immigration laws. Let me take th- the one that the court had
this term and was set for re-argument next term. There are several immigration statues that
say that if you are an excludable alien or other classes of aliens, you’re subject to
mandatory detention. So for example, to give you an easy example,
if you are somebody who comes up to an airport, LAX and claims asylum, the person who is at
the airport may conclude that your story is not facially incredible and claim that maybe
you should be allowed to, to be examined, uh, some more. And be temporarily sort of, uh, led in just
for the purposes of examining these things. But you’re subject to mandatory detention. You’re not allowed to roam the streets. Um, and so there was a class action saying
that in these cases, um, the government had to give people like this bail after six months. And the Ninth Circuit held that these things,
um, had to happen. And this case, Jennings versus Rodriguez went
to Supreme Court, was argued in November. Now, the statute you could argue is pretty
clear that bail is just not available. But the argument is that it would be unconstitutional
for bail to be denied. Because it is an invasion of a liberty interest. Um, and so, after hearing argument on this
question in November, the Supreme Court early in the year asked for briefing on the constitutional
question. And then on the last day of the term, set
the case for re-argument. Now, um, a very interesting case and it depends
on how you look at what the liberty interest is. Just to give you a little bit of background
on that one, there’s an earlier famous case from 1953. I’m sure you’re all f- familiar with it. It’s called Shaughnessy versus Mezei. Mezei was a stateless Hungarian who had lived
in this country for 25 years in Buffalo. He, um, left to go to Hungary, uh, to visit
his dying mother. And came back to Ellis Island where he was
excluded as an excludable alien, I think was a communist. Surprise. Um. (laughing) And so, um, uh, he sort of filed a habeas
corpus and all of that and the Second Circuit sort or agreed with him over a dissent by
Learned Hand. Um, the government went to Supreme Court where
the government won. And the Learned Hand point was sort of simple
and sort of helps you sort of understand what’s at the center of the fight after whether this
is a liberty interest. Learned Hand was quite a liberty interest. We’re only keeping him if he wants to be here
and wants us to examine his application. He’s free to get on the next boat that pulls
on our shore and go away. Um, and so, and the, the answer was, well,
he’s stateless. No country will take it. To which Learned Hand’s somewhat heartless
answer was, he can, he’s free to sail the seas like the flying Dutchman until his final
days come. (laughing) And that was basically the view that gained,
you know, favor from the Supreme Court in 1953. Um, that was before they had, this is just
a statement of fact, by the way. That was before the court had female members. (laughing) Uh, in any event, um, so that’s the underlying
issues in the Jennings case but it, it really has to do with the capacity of the country
as a country to exclude aliens who come to our, um, to our, uh, shores and to keep them,
uh, incarcerated until we’re really, really sure that they don’t pose a, any sort of a
danger. Um, now the next one is of course, you know,
the so-called ban. And that one, uh, you’ll know the story on
on the last day of the term. Um, the, uh, court dealt with the government’s
applications to state injunctions that had been entered by the Ninth Circuit and the
Fourth Circuit. Um, in what is clearly a compromise, um, you
know, the court basically lifted most of the injunctions. And allowed the injunctions just to proceed
for those who had bonafide close familial relationships and bonafide commercial, you
know, relationships. And those that are, a- a- a- and I think the
court made quite clear that those were, uh, preexisting and went out of its way to say
that if you’re an immigrant rights organization, it’s not a bonafide, you know, relationship
to invite somebody to come. Um, now it seems pretty clear, um, that although
the court set this case for oral argument in October, um, the court also made clear
that it expects the government to conduct whatever study it is, it says is conducting
about this over the summer. And to drive the point home, also asked the,
the government to brief the question of mootness, um, as to whether this case will still be
live then. Um, and so, uh, the short version of the travel
ban is that the Chief Justice engineered a compromise to give the government most of
this ban for the 90 days the government claimed it needed. Um, and it sent it over to the White House
with a note to say, saying, “We’re going away for the summer. We expect not to find this back when we come
back.” (laughing) And I think that’s all we have. A lot of time. Oh. Oh, booze. You know, there are two thoughts I have here. One is, uh, uh, that I will, uh, I, I, I told
Miguel at the start that this was a test. Given the nature of the term, if he, uh, could,
could, could he make this interesting and keep the attention of the audience? (laughing) I think you passed. Oh, thank you. And since, um, uh, this is consumable, and
our standard tie repeated enough times isn’t exactly, we thought this would be a more appropriate
gift. Well, thank you. Thank you very much. Thank you so much. Wonderful crowd.

One Comment

  • RabidHaze

    It's disgraceful that this brilliant and witty man was not allowed to sit on the DC Circuit because of his ethnicity.

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