Supreme Court: The Term in Review (2017–2018) Part 2 of 2


GERRYMANDERING IS AS OLD
AS THE COUNTRY ITSELF. ALTHOUGH IT’S NOW PRONOUNCED
“GERRYMANDER,” IT’S NAMED FOR ELBRIDGE GERRY,
A FOUNDING FATHER TWICE ELECTED
GOVERNOR OF MASSACHUSETTS. AND IT REFERS TO ELECTORAL
DISTRICTS THAT ARE DRAWN TO THE ADVANTAGE OF
THE PARTY IN POWER. GERRY WAS SAID TO HAVE DRAWN
A DISTRICT SO TWISTED, IT RESEMBLED A SALAMANDER, WHICH THE DAILY PAPERS RENAMED A “GERRYMANDER.” STATES GENERALLY REDRAW
ELECTORAL DISTRICTS EVERY 10 YEARS FOLLOWING
THE NATIONAL CENSUS. THERE ARE CONSTITUTIONAL
AND STATUTORY LIMITS ON HOW DISTRICTS CAN BE DRAWN. FOR EXAMPLE,
THE COURT HAS HELD THAT THE CONSTITUTION REQUIRES
ONE PERSON, ONE VOTE. FOR ANY ELECTED BODY,
ALL DISTRICTS MUST BE ABOUT THE SAME POPULATION. ALSO, THE CONSTITUTION
FORBIDS USING RACE AS A PREDOMINANT FACTOR
IN REDISTRICTING OR IN DISTRICTING. AND THE 1982 AMENDMENTS
TO THE VOTING RIGHTS ACT PROHIBIT DRAWING ELECTION
DISTRICTS IN A MATTER THAT HAS RACIALLY
DISCRIMINATORY IMPACT. BUT POLITICAL GERRYMANDERING
HAS PROVEN A MUCH MORE DIFFICULT QUESTION FOR THE
SUPREME COURT TO ADDRESS. IN “DAVIS V. BANDEMER” IN 1986, THE COURT HELD THAT
PARTISAN GERRYMANDERING VIOLATED THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT,
WHERE THERE WAS SUBSTANTIAL VOTE DILUTION, BUT DID NOT PROVIDE A STANDARD
FOR DETERMINING THIS. NOR COULD IT FIND AN ACCEPTABLE
ANSWER TO THAT PROBLEM WHEN IT REVISITED THE ISSUE
IN 2004 IN “VEITH V. JUBELIRER.” IN A 5-4 DECISION THIS YEAR, A 4-JUSTICE PLURALITY
CONCLUDED THAT CHALLENGES TO PARTISAN GERRYMANDERING ARE NON JUSTICIABLE
POLITICAL QUESTIONS BECAUSE OF THE LACK OF A
JUDICIAL STANDARD TO DETERMINE WHEN THERE IS A
CONSTITUTIONAL VIOLATION. JUSTICE KENNEDY, THE FIFTH
JUSTICE IN THAT MAJORITY, CONCURRED WITH THE PLURALITY,
BUT SAID HE BELIEVED A MANAGEABLE STANDARD
FOR JUDGING THE CASES MIGHT STILL BE DEVELOPED
AND CHALLENGED THE LOWER COURTS TO FIND ONE. THIS TERM, THE COURT
DECIDED 3 CASES THAT INVOLVED GERRYMANDERING
IN DIFFERENT WAYS. WE’LL TELL YOU ABOUT
TWO OF THEM. IN “GILL V. WHITFELD,”
THE COURT, AGAIN, ADDRESSED THE QUESTION
OF THE JUDICIABILITY OF POLITICAL GERRYMANDERING. IN 2012, REPUBLICANS
WON 60 OUT OF 99 SEATS IN THE WISCONSIN STATE ASSEMBLY. WITH ONLY 48% OF THE STATEWIDE
VOTE FOR ASSEMBLY CANDIDATES. IN 2014, THEY WON 63
OF THE 99 SEATS WITH ONLY 52% OF
THE STATEWIDE VOTES. PLAINTIFFS IN THE
DISTRICT COURT CLAIMED THE STATE’S ELECTORAL
DISTRICTING PLAN WAS UNCONSTITUTIONAL
POLITICAL GERRYMANDERING. THEY CHARGED THE REPUBLICANS
WITH WHAT IS CALLED “CRACKING AND PACKING.” THAT IS DIVIDING
A PARTY’S SUPPORTERS AMONG MULTIPLE DISTRICTS
SO THEY CAN’T FORM A MAJORITY IN ANY OF THEM, OR CONCENTRATING THE
OPPOSING PARTY’S MEMBERS INTO A FEW DISTRICTS SO THAT
THEY HAD FAR MORE VOTERS THAN THEY NEEDED TO WIN
IN THOSE DISTRICTS, AND THE EXTRA VOTES
WERE WASTED. THE 3-JUDGE DISTRICT COURT PANEL
FOUND FOR THE PLAINTIFFS, AND THE SUPREME COURT GRANTED
CERT ON THE QUESTION OF WHETHER FEDERAL COURTS
MAY HEAR CHALLENGES TO PARTISAN GERRYMANDERING,
AND, IF SO, WHEN IT VIOLATES
THE CONSTITUTION. SO, SUZANNA, DID THE JUSTICES
FINALLY DECIDE THESE ISSUES AFTER ALL THESE YEARS? NOT YET! CHIEF JUSTICE ROBERTS
WROTE AN OPINION FOR A UNANIMOUS COURT, SAYING THAT THE PLAINTIFFS
LACKED STANDING. HE SAID THAT IN ORDER
TO HAVE STANDING, PLAINTIFFS HAVE TO ALLEGE
A CONCRETE AND PARTICULARIZED INJURY TO THEMSELVES. AND SO THE PLAINTIFFS
IN THIS CASE HAD ARGUED THAT WHAT HARMED THEM WAS THAT
THE DISTRICT BOUNDARIES WERE MANIPULATED IN ORDER
TO KEEP DEMOCRATS STATEWIDE FROM HAVING THE
SAME OPPORTUNITIES PROVIDED TO REPUBLICANS
TO ELECT REPRESENTATIVES TO THE ASSEMBLY. AND THE CHIEF JUSTICE DESCRIBED
THAT EQUAL PROTECTION CLAIM AS ONE THAT THEIR VOTES
HAD BEEN DILUTED COMPARED TO OTHER VOTERS
IN WISCONSIN, BUT THE PROBLEM WAS,
THEY DIDN’T HAVE ANY EVIDENCE OF HARM TO THEMSELVES,
ONLY OF STATEWIDE EVIDENCE. AND SO, NONE OF THE
PLAINTIFFS HAD STANDING BECAUSE NONE OF THEM HAD SHOWN
ENOUGH HARM TO THEMSELVES. ALTHOUGH THE COURT HELD
THAT THE PLAINTIFFS FAILED TO ESTABLISH STANDING
BY PROVING THEIR INJURY, THE COURT DIDN’T
DISMISS THE CASE. THAT OF COURSE IS
WHAT USUALLY HAPPENS WHEN A COURT FINDS A LACK
OF STANDING, BUT CHIEF JUSTICE ROBERTS,
WRITING FOR THE COURT, SAID HERE THIS IS AN UNSETTLED CLAIM, THE CONTOURS
OF THE RIGHT ARE UNCERTAIN, JUSTICIABILITY IS UNCLEAR, SO THE COURT REMANDED
THE CASE BACK TO THE 3-JUDGE FEDERAL COURT TILL THE PLAINTIFFS
PROVE THEIR STANDING. CHANCE: WELL, THERE WAS
ANOTHER SORT OF UNUSUAL ASPECT TO THIS DECISION, AND THAT WAS THE CONCURRENCE
BY JUSTICE KAGAN. TELL US ABOUT THAT. SHERRY: WELL, YEAH. THERE WERE
TWO INTERESTING WRINKLES IN HER OPINION. IT WAS A CONCURRENCE. SHE SAID SEVERAL TIMES
IN HER OPINION THAT SHE WAS JOINING
THE MAJORITY IN FULL, BUT SHE USED THE CONCURRENCE
TO SUGGEST HOW THE PLAINTIFF ON REMAND
MIGHT ACTUALLY PROVE THE REQUISITE PERSONAL INJURY BY PROVING THAT HE OR SHE
HAD LIVED IN A DISTRICT THAT HAD BEEN PACKED
OR CRACKED. SO, FOR EXAMPLE,
THE PLAINTIFF COULD PROVIDE AN ALTERNATIVE REDISTRICTING MAP THAT SHOWED A WAY
THAT HIS OR HER OWN DISTRICT COULD BE DRAWN IN A WAY THAT AVOIDED PACKING
OR CRACKING, AND AS SHE POINTED OUT,
THE PLAINTIFFS SHOULD ALREADY HAVE
THIS INFORMATION, BUT THEY JUST NEEDED
TO PRESENT IT ON AN INDIVIDUAL
DISTRICT-BY-DISTRICT BASIS INSTEAD OF ON A STATEWIDE BASIS. I AGREE WITH SUZANNA. I THINK JUSTICE KAGAN
VERY MUCH HERE WAS TRYING TO PROVIDE
A ROADMAP FOR THE PLAINTIFFS ON REMAND. SHE DID SO JUST AS YOU SAY
WITH REGARD TO STANDING, BUT SHE ALSO DID SO
WITH REGARD TO THE CLAIM. SHE SAID TO THE PLAINTIFFS,
“ON REMAND, ARGUE “A FIRST AMENDMENT CLAIM “THAT THE GERRYMANDERING
INTERFERES WITH FIRST AMENDMENT
POLITICAL ASSOCIATION.” SO THIS IS DIFFERENT
THAN A VOTE DILUTION CLAIM UNDER EQUAL PROTECTION. STANDING IS EASIER
TO ESTABLISH HERE. I THINK THE CONVENTIONAL WISDOM
HAS BEEN THAT SHE WAS TRYING TO TELL
THE PLAINTIFFS WHAT TO DO TO BEST APPEAL
TO JUSTICE KENNEDY WHEN THE CASE WOULD COME
BACK BEFORE THE SUPREME COURT, BUT OF COURSE, HE’S
NO LONGER ON THE BENCH. WE’LL SEE HOW IT PLAYS
WITH THE NEW JUSTICE. WIGGINS: OK. OUR SECOND DECISION
INVOLVING REDISTRICTING WAS “ABBOTT V. PEREZ”
INVOLVING BOTH STATE AND FEDERAL ELECTORAL DISTRICTS
IN TEXAS. THE CASE HAD A LONG
PROCEDURAL HISTORY, WHICH ISN’T NECESSARY
TO REVIEW IN ITS ENTIRETY, BUT BRIEFLY, A 3-JUDGE
FEDERAL DISTRICT COURT IN TEXAS FOUND THAT
THE STATE LEGISLATURE INTENTIONALLY DISCRIMINATED
AGAINST LATINO VOTERS IN 2011 WHEN IT DREW
ELECTORAL DISTRICTS FOLLOWING THE 2010 CENSUS. THE 3-JUDGE COURT REPLACED
THE LEGISLATURE’S PLAN WITH ONE OF ITS OWN, WHICH
THEN THE LEGISLATURE ADOPTED IN 2013 WITH FEW CHANGES, BUT THE PLAINTIFFS
IN THE 2011 CASE CHALLENGED THAT PLAN, AS WELL,
BECAUSE THEY CLAIM THE LEGISLATURE HAD NOT ENGAGED
IN A DELIBERATIVE PROCESS TO ENSURE THAT THE 2013 PLAN
CURED THE DISCRIMINATORY TAINT OF THE 2011 PLAN. THE 3-JUDGE COURT FOUND
3 DISTRICTS IN THE 2013 PLAN VIOLATED THE VOTING RIGHTS ACT AND THEN A FOURTH DISTRICT
INVOLVED UNCONSTITUTIONAL
RACE DISCRIMINATION. SO, ERWIN, WHERE DID
THE SUPREME COURT COME DOWN ON THIS CASE? THE SUPREME COURT LARGELY
REVERSED THE 3-JUDGE FEDERAL COURT. THEY FOUND THAT ONLY ONE
OF THE DISTRICTS VIOLATED THE CONSTITUTION
OR THE VOTING RIGHTS ACT. THE SUPREME COURT STRESSED
THAT THE BURDEN OF PROOF IS ON THE CHALLENGERS
TO SHOW A VIOLATION OF THE CONSTITUTION
OR OF THE VOTING RIGHTS ACT. SAID HERE THERE HAS TO BE
A STRONG PRESUMPTION IN FAVOR OF THE DISTRICTING DONE
BY THE LEGISLATURE. THE COURT SAID IT’S
IMPERMISSIBLE TO IMPUTE BAD MOTIVES
FOR THE 2013 DISTRICTING BASED ON WHAT HAD HAPPENED IN 2011. THE COURT SAID THAT
THE 3-JUDGE FEDERAL COURT ERRED BY PUTTING THE BURDEN
OF PROOF ON THE GOVERNMENT TO SHOW THAT IT WASN’T
VIOLATING THE CONSTITUTION OR THE VOTING RIGHTS ACT. AND THEN THE COURT ACTUALLY
TALKED ABOUT THE STANDARD THAT WOULD BE APPLIED
WHEN THE PLAINTIFFS HAD TO PROVE THEIR CASE, AND THE COURT APPLIED
THE SO-CALLED “GINGLES” FACTOR FROM THE DECISION
IN “THORNBURG V. GINGLES.” I BELIEVE WE HAVE
THOSE FACTORS ON THE SCREEN. THESE ARE THAT THE PLAINTIFF
JUST ESTABLISH FIRST A GEOGRAPHICALLY COMPACT
MINORITY POPULATION SUFFICIENT TO CONSTITUTE
A MAJORITY IN A SINGLE MEMBER DISTRICT. SECOND, POLITICAL COHESION
AMONG MEMBERS OF THE MINORITY GROUP, AND 3–A BLOC VOTING
BY THE MAJORITY TO DEFEAT THE MINORITY’S
PREFERRED CANDIDATE. IF A PLAINTIFF MAKES
A SHOWING THAT THOSE 3 HAVE BEEN SATISFIED, THEN THE PLAINTIFF
HAS TO PROVE BY A TOTALITY
OF THE CIRCUMSTANCES THAT THE DISTRICT LINES
IN QUESTION DILUTE THE VOTES OF MEMBERS OF THE MINORITY, AND THE JUSTICES FOUND
THAT THE PLAINTIFFS HAD NOT SATISFIED
THE REQUIREMENTS. THE COURT DID FIND THAT ONE
OF THE DISTRICTS WAS IMPROPERLY DRAWN–
HOUSE DISTRICT NUMBER 90– AND INTERESTING, THE COURT
THERE SAID THAT RACE WAS IMPERMISSIBLY USED
AS A PREDOMINANT FACTOR TO BENEFIT LATINO VOTERS. THERE WAS A LONG
AND VEHEMENT DISSENT IN THIS CASE, WASN’T THERE? CAN YOU TELL US
ABOUT THAT? JUSTICE SOTOMAYOR
WROTE THE DISSENT. SHE CRITICIZED THE MAJORITY
FOR NOT GIVING SUFFICIENT DEFERENCE
TO THE FACT-FINDING OF THE 3-JUDGE FEDERAL COURT,
BUT MOST OF ALL, SHE WAS CONCERNED
FOR WHAT THIS WILL MEAN FOR MINORITY VOTERS IN TEXAS
AND OTHER STATES ROUND THE COUNTRY. WIGGINS: OK. FINALLY, “HUSTED V.
A. PHILIP RANDOLPH INSTITUTE” WAS NOT ABOUT REDISTRICTING
OR GERRYMANDERING BUT LOOKED AT THE INTERPRETATION
OF TWO FEDERAL STATUTES FOCUSED ON VOTING AND POSSIBLE
VOTER SUPPRESSION. THESE ARE THE NATIONAL VOTER
REGISTRATION ACT, OR NVRA, AND THE HELP AMERICA VOTE ACT,
OR HAVA. BOTH LAWS TELL STATES
THAT THEY MUST MAKE AN EFFORT TO REMOVE INELIGIBLE VOTERS
FROM STATE VOTING ROLLS AND DETAILS HOW THEY’RE
ALLOWED TO DO THAT. UNDER THE NVRA, A STATE
MAY NOT REMOVE A VOTER’S NAME FROM THE ROLLS BECAUSE
OF A CHANGE OR A RESIDENCE UNLESS THE VOTER EITHER
CONFIRMS IN WRITING THAT HE OR SHE HAS MOVED OR FAILS TO RETURN
A PREADDRESSED, POSTAGE-PAID “RETURN CARD”
CONTAINING STATUTORILY PROSCRIBED LANGUAGE AND THE VOTER THEN FAILS
TO VOTE IN ANY ELECTION DURING THE PERIOD COVERING THE NEXT TWO GENERAL
FEDERAL ELECTIONS, WHICH IS ROUGHLY
A 4-YEAR PERIOD. NVRA ALSO INCLUDES WHAT’S
CALLED A FAILURE-TO-VOTE CLAUSE THAT SAYS,
“A STATE REMOVAL PROGRAM “SHALL NOT RESULT
IN A PERSON’S REMOVAL FROM THE ROLLS SOLELY
FOR FAILURE TO VOTE.” AMONG OTHER THINGS,
HAVA ADDED LANGUAGE TO THIS FAILURE TO VOTE CLAUSE
SPECIFYING THAT IT DOESN’T PROHIBIT THE STATE FROM USING
THE PROCEDURES OF SENDING A RETURN CARD
AND REMOVING VOTERS WHO FAIL TO RETURN THE CARD
AND THEN FAIL TO VOTE FOR THE REQUISITE TIME PERIOD. “HUSTED” WAS AN ACTION
THAT WAS ORIGINALLY BROUGHT AGAINST THE STATE OF OHIO. SO WHAT WAS THE COMPLAINT
IN OHIO? SHERRY: WELL, LET ME START
BY TELLING YOU WHAT OHIO DID. OHIO BASICALLY FOLLOWS
THE LETTER OF BOTH FEDERAL LAWS. IT SENDS OUT
THE REQUISITE RETURN CARDS, AND IF THEY ARE NOT RETURNED,
IT WAITS 4 YEARS AND REMOVES THE VOTER
ONLY IF THE VOTER HASN’T RETURNED THE CARD AND HASN’T VOTED
IN THOSE SUBSEQUENT 4 YEARS. THE PROBLEM IS THAT
THE FEDERAL STATUTES DON’T SPECIFY WHAT MAY
OR SHOULD TRIGGER THE SENDING OF THE RETURN CARDS, SO WHAT OHIO DOES, IT SENDS
OUT THE CARDS IF SOMEBODY HASN’T VOTED
FOR TWO YEARS. OTHER STATES DO SIMILAR THINGS. THEY MIGHT PICK
DIFFERENT TIME PERIODS, BUT THEY SEND THEM OUT
IF SOMEONE HASN’T VOTED. STILL, OTHER STATES JUST SEND
THEM OUT AT REGULAR INTERVALS REGARDLESS OF WHETHER
THE VOTER HAS VOTED, AND THE CHALLENGERS IN “HUSTED”
CLAIMED THAT SENDING OUT THE RETURN CARDS
ON THE BASIS OF A FAILURE TO VOTE VIOLATED THE FAILURE TO VOTE CLAUSE
IN THE FEDERAL LAWS. THE SUPREME COURT RULED
5-4 THAT OHIO WAS NOT VIOLATING THE NATIONAL VOTER
REGISTRATION ACT. THE COURT SAID THE NATIONAL
VOTER REGISTRATION ACT SAYS A STATE CANNOT REMOVE VOTERS
FROM THE ROLLS SOLELY FOR THEIR FAILURE TO VOTE. THE COURT SAID OHIO
WASN’T DOING THAT, THUS NO VIOLATION
OF THE STATUTE. CHANCE: JUSTICE SOTOMAYOR’S
DISSENT WAS AGAIN VERY STRONG. SHE SAID THE MAJORITY OPINION
IGNORED THE HISTORY OF THE VOTER SUPPRESSION AGAINST WHICH THE NVRA
WAS ENACTED. SHERRY: I HAVE TO SAY THAT
I’M A LITTLE BIT SURPRISED BY THE DISSENT
AND BY THE FACT THAT THERE WERE TWO JUDGES
ON THE 6-CIRCUIT PANEL WHO AGREED WITH
THE SUPREME COURT DISSENT. OHIO SEEMS TO ME TO HAVE
FOLLOWED THE FEDERAL STATUTES EXACTLY AND HAD BEEN DOING SO
FOR MORE THAN 20 YEARS. I DO THINK THAT THIS IS
JUST ANOTHER INDICATION OF HOW SENSITIVE THE ISSUE
OF VOTING AND POTENTIAL VOTER SUPPRESSION
HAS BECOME. I THINK IT’S IMPORTANT TO PUT
THE 3 CASES TOGETHER THAT WE’VE TALKED ABOUT. I THINK IT SHOWS A COURT
THAT’S GOING TO GIVE GREAT DEFERENCE TO THE STATES
WITH REGARD TO ELECTIONS, WHETHER YOU’RE TALKING
ABOUT PARTISAN GERRYMANDERING OR EVEN THE USE OF RACE OR WHEN TO REMOVE PEOPLE
FROM THE VOTER ROLLS. THANKS, ERWIN. NEXT, A LOOK AT DECISIONS
AFFECTING THE FEDERAL COURTS. THE SUPREME COURT’S DECISIONS
AFFECT NEARLY EVERY ASPECT OF LIFE IN THE U.S.,
BUT PROBABLY NONE MORE DIRECTLY THAN THE FEDERAL COURTS
THEMSELVES. THE RULES BY WHICH
THE LOWER COURTS FUNCTION, THE NATURE AND EXTENT
OF THEIR AUTHORITY, AND THEIR RELATIONSHIP
TO OTHER PLAYERS IN OUR CONSTITUTIONAL SYSTEM
WERE ALL CONSIDERED BY THE JUSTICES THIS TERM. OUR NEXT CASE, “CHINA AGRITECH
V. RESH,” INVOLVES SEVERAL OF THESE ISSUES. WHEN A CLASS ACTION SUIT
IS FILED, IT MIGHT TAKE THE COURTS
TO DECIDE WHETHER THE CLASS SHOULD BE CERTIFIED SOME TIME, AND IF A COURT NOT ONLY
TAKES A LONG TIME BUT DECIDES
AGAINST CLASS CERTIFICATION, THE STATUTE OF LIMITATIONS
MAY HAVE RUN OUT ON THE INDIVIDUAL CLAIMS,
SO WHAT HAPPENS THEN, SUZANNA? WELL, THE COURT ANSWERED
THAT QUESTION IN 1974 IN “AMERICAN PIPE AND
CONSTRUCTION COMPANY V. UTAH” AND THEN CLARIFIED
ITS HOLDING 9 YEARS LATER IN “CROWN CORK, & SEAL COMPANY
V. PARKER.” ESSENTIALLY WHAT
THE COURT RULED IS THAT THE FILING
OF A CLASS ACTION STOPS THE STATUTE OF LIMITATIONS
FROM RUNNING FOR INDIVIDUAL MEMBERS
OF THE CLASS SO THAT IF CERTIFICATION
IS DENIED INDIVIDUAL CLASS MEMBERS
THEN HAVE WHATEVER TIME IS LEFT ON THE STATUTE
OF LIMITATIONS FROM THE TIME THAT
THE CLASS CERTIFICATION REQUEST WAS FILED, AND THEY CAN FILE
AN INDIVIDUAL ACTION WITHIN THAT TIME PERIOD, OR THEY CAN INTERVENE
IN ANOTHER LAWSUIT DURING THAT PERIOD. THE PURPOSE OF THE RULE,
THE COURT SAID, WAS TO PROMOTE
JUDICIAL EFFICIENCY BECAUSE IF THE RULE
WENT THE OTHER WAY WHAT WOULD HAPPEN WHEN
A CLASS CERTIFICATION REQUEST WAS FILED IS THAT
INDIVIDUAL MEMBERS OF THE CLASS WOULD ALSO
FILE THEIR OWN LAWSUITS JUST IN CASE CERTIFICATION
WAS ULTIMATELY DENIED, AND THAT WOULD CLOG
UP THE COURTS. WELL, IF THE ISSUE WAS
DEALT WITH DECADES AGO, WHY WAS IT HERE–
WHY WERE WE REVISITING IT IN “CHINA AGRITECH”? CHEMERINSKY: IN “AMERICAN PIPE” AND IN “CROWN, CORK & SEAL,” IT WAS A CLASS ACTION THAT WAS
DENIED CERTIFICATION, AND THEN INDIVIDUALS FILED
CLAIMS THAT WOULD HAVE OTHERWISE BEEN TIME-BARRED. IN THIS CASE, THE COURT DENIED
CERTIFICATION OF CLASS ACTION, BUT MICHAEL RESH WANTS TO FILE
ANOTHER CLASS ACTION SUIT THAT WOULD BE TIME-BARRED. THE DISTRICT COURT SAID
THAT THAT WAS IMPERMISSIBLE, BUT THE NINTH CIRCUIT
REVERSED AND SAID JUST AS INDIVIDUAL CLAIMS
CAN BE FILED WHEN THEY’RE TIME-BARRED,
SO SHOULD WE ALLOW ANOTHER CLASS ACTION SUIT
TO BE FILED. WIGGINS: SO WHAT DID
THE SUPREME COURT SAY? THE SUPREME COURT REVERSED
THE NINTH CIRCUIT HERE. JUSTICE SOTOMAYOR WROTE
FOR THE COURT, JOINED BY 8 JUSTICES. SHE SAID THOUGH INDIVIDUALS
CAN FILE A SUIT WHEN CLASS CERTIFICATION
IS DENIED, EVEN THOUGH THE INDIVIDUALS
WERE TIME-BARRED, IT’S DIFFERENT WHEN IT COMES
TO A CLASS ACTION BEING FILED WHEN IT’S TIME-BARRED WHEN CLASS CERTIFICATION
IS DENIED. SHE SAYS WHEN IT COMES
TO INDIVIDUAL SUITS THERE’S THE EFFICIENCY ARGUMENT
THAT SUZANNA MADE. SHE SAID WHEN IT COMES
TO CLASS ACTION SUITS IT’S VERY DIFFERENT. SAID WHEN IT COMES
TO CLASS ACTION SUITS, WE WANT PEOPLE TO
COME FORWARD EARLY SO AS TO BE ABLE TO DETERMINE
THE CLASS REPRESENTATIVES, WHO’S GONNA BE CLASS COUNSEL. SHE ALSO POINTED OUT
THAT IF THE RULE WENT THE OTHER WAY IN THIS CASE
IT WOULD ALLOW THE STATUTE OF LIMITATIONS
TO BE EXTENDED ESSENTIALLY INDEFINITELY. EVERY TIME CLASS CERTIFICATION
WAS DENIED, SOME OTHER PUTATIVE CLASS MEMBER
WOULD BE ABLE TO COME FORWARD AND FILE ANOTHER CLASS ACTION. ALSO, I THINK THIS CASE
IS NOT VERY SURPRISING. THE COURT HAS BEEN CUTTING BACK
ON CLASS ACTIONS GENERALLY, AND WE’RE GONNA SEE THIS AGAIN
WHEN WE GET TO THE “EPIC SYSTEMS
V. LEWIS” CASE. OUR NEXT DECISION IS ALSO
ABOUT THE TOLLING OF A STATUTE OF LIMITATIONS, BUT IN THIS CASE STATE,
NOT FEDERAL, STATUTES ARE IN QUESTION. THE CASE IS “ARTIS
V. DISTRICT OF COLUMBIA.” FEDERAL COURTS HAVE
SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS
THAT ARISE FROM THE SAME MATTER
AS FEDERAL LAW CLAIMS THE COURT IS ADJUDICATING. THE COURTS ARE GIVEN
THAT AUTHORITY BY 28 U.S.C. 1367. IF THE FEDERAL COURT DISMISSES
THE FEDERAL CLAIMS, IT CAN AND OFTEN WILL DISMISS
THE STATE LAW CLAIMS. THE PLAINTIFF CAN THEN REFILE
THE STATE LAW CLAIMS IN STATE COURT, BUT WHAT IF THE STATE
STATUTE OF LIMITATIONS HAS RUN OUT WHILE THE STATE
CLAIMS WERE PENDING IN FEDERAL COURT? WELL, SECTION 1367 (D) SAYS,
“THE PERIOD OF LIMITATION “FOR ANY STATE CLAIM
THAT’S BEING HEARD “WITH A FEDERAL CLAIM
IN FEDERAL COURT “IS TOLLED WHILE THE CLAIM
IS PENDING IN FEDERAL COURT “AND FOR A PERIOD OF 30 DAYS
AFTER IT IS DISMISSED UNLESS THE STATE LAW PROVIDES
FOR A LONGER TOLLING PERIOD.” SO WHAT’S THE ISSUE HERE, ERWIN? CHEMERINSKY: THE ISSUE IS WHAT
DOES THE WORLD “TOLLED” MEAN? DOES IT MEAN THAT THE STATE
STATUTE OF LIMITATIONS STOPS RUNNING WHILE
THE STATE CLAIMS ARE PENDING IN FEDERAL COURT, OR DOES IT MEAN THAT THE STATE
STATUTE OF LIMITATIONS WAS RUNNING BUT AFTER
THE FEDERAL COURT DISMISSES THE STATE LAW CLAIMS THERE’S
THEN A 30-DAY GRACE PERIOD TO REFILE THOSE CLAIMS
IN STATE COURT? AND HERE’S HOW IT AROSE
IN THIS CASE. STEPHANIE ARTIS WAS FIRED
FROM HER JOB WITH THE DISTRICT OF COLUMBIA,
AND SHE SUED IN U.S. DISTRICT COURT
UNDER BOTH FEDERAL LAW AND D.C. LAW. THE DISTRICT COURT EVENTUALLY
DISMISSED BOTH HER FEDERAL CLAIMS
AND HER STATE LAW CLAIMS, AND THEN SHE FILED
HER STATE LAW CLAIMS IN D.C. LOCAL COURTS
59 DAYS LATER, AND THE D.C. COURTS TOOK
THE APPROACH THAT IT WAS ONLY A 30-DAY GRACE PERIOD, AND THEREFORE ARTIS’ COMPLAINT
WAS TIME-BARRED. SHE ARGUED IN FRONT
OF THE SUPREME COURT THAT TOLLING MEANT SUSPENDING
THE STATUTE OF LIMITATIONS ALTOGETHER DURING THE PENDENCY
OF THE LAWSUIT, AND THAT WOULD MEAN
THAT SHE HAD FILED WITHIN THE TIME LIMIT. WIGGINS: SO, SUZANNA, WHAT
INTERPRETATION OF THE TERM “TOLLING” DID THE SUPREME COURT THINK
WAS PROPER? SHERRY: THEY AGREED WITH HER. THEY SAID THAT TOLLING MEANS
THAT THE CLOCK STOPS RUNNING ALTOGETHER FROM THE TIME
THE CASE IS FILED IN FEDERAL COURT
UNTIL 30 DAYS AFTER THE FEDERAL DISMISSAL, SO ARTIS’ CLAIM WAS TIMELY. SO WHAT THE MAJORITY
LOOKED AT WAS THEY LOOKED AT THE HISTORY
OF DIFFERENT INTERPRETATIONS OF THE TERM “TOLLING,” AND THEY LOOKED OF COURSE
AT DICTIONARIES, AS THEY OFTEN DO,
AND THEY QUOTED AN EARLIER SUPREME COURT
DECISION, AND THEN THEY SAID THAT
THE D.C. COURT’S ATYPICAL DEFINITION
OF “TOLLING” WAS, AS THEY SAID, “A FEATHER
ON THE SCALE AGAINST THE WEIGHT
OF DECISIONS,” IN WHICH “TOLLING” MEANS
STOPPING THE CLOCK. WIGGINS: OK. SO BUT THERE WAS
A SECOND ISSUE IN THIS CASE, TOO,
AND THAT WAS ABOUT THE CONSTITUTIONALITY
OF 1367 (D) AND WHETHER REALLY CONGRESS
COULD SUSPEND STATE STATUTES OF LIMITATIONS IN THE WAY THAT STATUTE DID. CHEMERINSKY: THE COURT FOUND
THIS AN EASY ISSUE THAT HAD BEEN PREVIOUSLY
RESOLVED. THE COURT SAID CONGRESS
HAD THE AUTHORITY UNDER THE NECESSARY
AND PROPER CLAUSE TO ADOPT SECTION 1367. THE COURT SAID THIS WAS
PREVIOUSLY DECIDED IN “JINKS V. RICHLAND COUNTY.” WIGGINS: OK. “WILSON V. SELLARS” ALSO
INVOLVED THE RELATIONSHIP BETWEEN FEDERAL
AND STATE COURTS, BUT THIS TIME, THE FOCUS
WAS ON WHEN FEDERAL COURTS CAN GRANT HABEAS RELIEF
ON STATE COURT CONVICTIONS. SUZANNA, CAN YOU FILL US IN
ON THE BACKGROUND OF THIS CASE? SHERRY: WELL, AS OUR AUDIENCE
PROBABLY KNOWS, SECTION 2254 (D) PROHIBITS
FEDERAL COURTS FROM GRANTING A WRIT
OF HABEAS CORPUS ON A CLAIM THAT’S ALREADY
BEEN CONSIDERED BY A STATE COURT UNLESS THE STATE COURT RULING
IS CONTRARY TO OR AN UNREASONABLE APPLICATION
OF CLEARLY ESTABLISHED FEDERAL LAW,
BUT THAT LEAVES OPEN THE QUESTION OF WHAT
SHOULD HAPPEN IF THE LAST STATE COURT RULING– USUALLY THE STATE
SUPREME COURT– DOESN’T GIVE ANY REASONING
OR EXPLANATION. IT SIMPLY DENIES REVIEW
OR AFFIRMS A LOWER COURT RULING. HOW IS A FEDERAL HABEAS COURT
SUPPOSED TO DECIDE IN THAT CASE WHETHER THE STATE
SUPREME COURT’S RULING WAS EITHER CONTRARY TO
OR AN UNREASONABLE APPLICATION OF FEDERAL LAW? CHANCE: SO HOW DID THIS ARISE
IN THE “WILSON” CASE? CHEMERINSKY: MARION WILSON
WAS CONVICTED OF FIRST DEGREE MURDER
AND SENTENCED TO DEATH IN GEORGIA STATE TRIAL COURT. SUBSEQUENTLY, HE FILES
A STATE HABEAS CORPUS PETITION ARGUING INEFFECTIVE
ASSISTANCE OF COUNSEL. THE STATE TRIAL COURT
RULES AGAINST HIM. THE GEORGIA SUPREME COURT
DENIES REVIEW. WILSON THEN FILES
FOR HABEAS CORPUS IN FEDERAL COURT, ALLEGING INEFFECTIVE ASSISTANCE
OF COUNSEL. THE FEDERAL COURT FOCUSES
ENTIRELY ON THE STATE COURT DECISION WITH REGARD TO THE STATE
HABEAS PETITION. THE FEDERAL COURT FINDS THAT
COUNSEL’S PERFORMANCE WAS DEFICIENT,
BUT THERE WASN’T PREJUDICE, SO THERE WASN’T INEFFECTIVE
ASSISTANCE OF COUNSEL. THE ELEVENTH CIRCUIT, THOUGH,
SAYS THAT THE FEDERAL DISTRICT COURT
WAS WRONG TO LOOK THROUGH THE GEORGIA
SUPREME COURT AND FOCUS JUST ON THE GEORGIA TRIAL COURT. THE ELEVENTH CIRCUIT SAID
IT’S ALSO APPROPRIATE TO FOCUS ON THE ARGUMENTS THAT THE GEORGIA SUPREME COURT
COULD HAVE CONSIDERED IN SUPPORT OF THE RESULT. AND THE JUSTICES DISAGREED
WITH THE ELEVENTH CIRCUIT BY A 6-3 MAJORITY. THEY HELD THAT A FEDERAL
HABEAS COURT SHOULD LOOK THROUGH AN UNEXPLAINED
STATE COURT DECISION TO THE LAST STATE COURT DECISION
THAT DOES PROVIDE A RATIONALE. IT SHOULD THEN PRESUME
THAT THE UNEXPLAINED DECISION ADOPTED THE SAME REASONING, BUT THEY WERE CAREFUL–
THE COURT WAS CAREFUL TO NOTE THAT THE STATE CAN REBUT
THAT PRESUMPTION BY SHOWING THAT
THE UNEXPLAINED AFFIRMANTS RELIED OR AT LEAST
LIKELY RELIED ON SOME DIFFERENT GROUNDS. CHEMERINSKY: IT’S IMPORTANT
TO NOTE HERE THAT ALL OF THE OTHER CIRCUITS
HAD SAID THAT IT IS PERMISSIBLE
FOR A FEDERAL HABEAS COURT TO LOOK THROUGH A COURT
THAT DIDN’T TAKE THE CASE AND FOCUS ON THE TRIAL COURT–
OR WHATEVER COURT HANDED DOWN THE LAST DECISION. THERE’S A REAL EFFICIENCY
GAINED HERE BECAUSE IT LETS
THE FEDERAL COURT FOCUS ON THE ACTUAL DECISION
THAT WAS RENDERED RATHER THAN TRY TO IMAGINE
WHAT ARGUMENTS MIGHT HAVE BEEN MADE
BUT NEVER WERE ADVANCED. SHERRY: WE SHOULD NOTE,
THOUGH, THAT THE COURT EXPLICITLY SAID THAT
THE VERY UNREASONABLENESS OF THE LOWER STATE COURT
DECISION COULD BE SOME EVIDENCE THAT THE HIGHER,
UNEXPLAINED DECISION ACTUALLY DIDN’T RELY
ON THAT LOWER COURT DECISION AND THAT THE STATE
WOULD HAVE TO COME FORWARD WITH SOME OTHER EVIDENCE
TO REBUT THE PRESUMPTION. SO I EXPECT THAT COUNSEL
FOR THE STATE IN FUTURE HABEAS CASES
IS GOING TO BE MAKING ARGUMENTS AND LOOKING FOR REASONS
FOR WHY A STATE SUPREME COURT PROBABLY DIDN’T RELY
ON THE SAME RATIONALE AS A FLAWED LOWER
STATE COURT CASE. WIGGINS: OK. FINALLY,
WE WANT TO TELL YOU ABOUT A DECISION THE COURT
REACHED AFFECTING HOW U.S. FEDERAL COURTS
SHOULD INTERPRET LAWS OF OTHER NATIONS. THE DECISION WAS
IN “ANIMAL SCIENCE PRODUCTS V. HEBEI WELCOME
PHARMACEUTICAL COMPANY.” U.S. PURCHASERS
OF VITAMIN C FROM THE CHINESE COMPANY HEBEI BROUGHT AN ANTITRUST SUIT
AGAINST IT FOR PRICE FIXING. HEBEI RESPONDED THAT
CHINESE LAW REQUIRED THEM TO ENGAGE IN PRICE FIXING
AND THEY WERE THEREFORE IMMUNE FROM U.S. ANTITRUST LAWS. HEBEI MOVED THE DISTRICT COURT
TO DISMISS THE CASE ON THOSE GROUNDS. THE CHINESE MINISTRY
OF COMMERCE FILED AN AMICUS BRIEF SUPPORTING
HEBEI’S CLAIMS ABOUT CHINESE LAW. THE DISTRICT COURT DENIED
HEBEI’S MOTION TO DISMISS AND HELD THAT CHINESE LAW
DID NOT REQUIRE THE SELLERS TO FIX PRICES. THE CASE WAS TRIED
TO A JURY, WHICH RETURNED A VERDICT
FOR THE U.S. PURCHASERS. THE SECOND CIRCUIT COURT
OF APPEALS REVERSED THAT DECISION ON THE GROUND THAT THE CHINESE MINISTRY’S
INTERPRETATION OF CHINESE LAW WAS BINDING AND THAT
THE DISTRICT COURT SHOULD HAVE GRANTED THE SELLER”
IMMUNITY MOTION TO DISMISS THE COMPLAINT, BUT THE SUPREME COURT
REVERSED THE SECOND CIRCUIT, HOLDING THAT “A FEDERAL COURT
SHOULD CAREFULLY CONSIDER “A FOREIGN STATE’S VIEWS
ABOUT THE MEANING OF ITS OWN LAWS,” BUT “A FEDERAL COURT IS NEITHER
BOUND TO ADOPT “THE FOREIGN GOVERNMENT’S
CHARACTERIZATION NOR REQUIRED TO IGNORE
OTHER RELEVANT MATERIALS.” UNDER FEDERAL RULE
OF CIVIL PROCEDURE 44.1, THE COURT SAID A LOWER COURT
SHOULD CONSIDER ANY RELEVANT MATERIAL,
INCLUDING ITS OWN RESEARCH, TO DETERMINE THE CONTENT
OF FOREIGN LAW. WE’LL BE BACK IN A MOMENT
WITH A LOOK AT SOME FEDERAL STATUTES
THE COURT CONSIDERED THIS TERM. SOME OF THE MOST IMPORTANT
WORK THE COURT DOES EVERY TERM IS IN INTERPRETING
FEDERAL STATUTES. THIS TERM, THE COURT DECIDED
SEVERAL CASES DEALING WITH A BROAD RANGE OF TOPICS,
BOTH DOMESTIC AND FOREIGN. THE FIRST OF THESE, “EPIC
SYSTEMS CORPORATION V. LEWIS,” MAY HAVE A PROFOUND EFFECT
ON ENFORCING WORKER PROTECTIONS
IN A NUMBER OF AREAS. “EPIC” WAS ACTUALLY ONE
OF 3 CASES CONSOLIDATED FOR ARGUMENT
THAT DEAL WITH THE SAME QUESTION– ARE WORKERS WHO SIGNED
EMPLOYMENT AGREEMENTS WITH MANDATORY INDIVIDUAL
ARBITRATION CLAUSES ALLOWED TO FILE CLASS ACTION LAWSUITS
AGAINST THEIR EMPLOYERS? THE COMPANIES ARGUED THAT
THE COURTS HAVE TO UPHOLD THE AGREEMENTS
THE EMPLOYEES SIGNED UNDER THE FEDERAL
ARBITRATION ACT, OR FAA. THE EMPLOYEES ARGUED THAT
THEIR RIGHT TO COLLECTIVE BARGAINING
AND ORGANIZING UNDER THE NATIONAL
LABOR RELATIONS ACT, OR NLRA, TRUMPED THE FAA. WHAT DID THE COURT HOLD, LAURIE? LEVENSON: WELL, THE COURT HELD
IN FAVOR OF THE EMPLOYERS, SAYING THAT THEY COULD
REQUIRE THE EMPLOYEES TO SETTLE
THE INDIVIDUAL DISPUTES THROUGH INDIVIDUAL ARBITRATION RATHER THAN COMING TOGETHER
IN A COLLECTIVE ACTION TO BRING THEIR CLAIMS. THE 5-JUSTICE MAJORITY HERE
SAID THAT THE LANGUAGE OF THE NLRA DOES NOT BAR
ENFORCEMENT OF THE ARBITRATION AGREEMENTS
UNDER THE FAA. THEY SAID THE NLRA HAS NEVER
BEEN INTERPRETED IN ITS 77 YEARS OF EXISTENCE
TO NULLIFY THE FAA AND THAT THIS COURT
HAS NEVER READ A RIGHT OF CLASS ACTION
INTO THE FAA. SHERRY: THE SPECIFIC CONFLICT
BETWEEN THE TWO STATUTES, ACCORDING TO THE EMPLOYEES,
AROSE FROM SECTION 7 OF THE NLRA. THAT SECTION PROTECTS
WORKERS’ RIGHTS TO UNIONIZATION
AND COLLECTIVE BARGAINING AND ALSO, IN THE LANGUAGE,
OF THE SECTION, “TO ENGAGE IN OTHER
CONCERTED ACTIVITIES “FOR THE PURPOSE
OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID
OR PROTECTION,” AND THE MAJORITY SAID THAT
THE OTHER CONCERTED ACTIVITIES WERE ONLY THOSE RELATED TO UNION ORGANIZING, AND CLASS ACTIONS HAVE NOTHING TO DO WITH UNION ORGANIZING. LEVENSON: AND THE MAJORITY SAID THAT THE FAA REQUIRES RESPECT FOR ARBITRATION AGREEMENTS THAT ARE REACHED
BETWEEN PRIVATE PARTIES, THAT THIS MIGHT BE DIFFERENT
IF THERE WERE SOME EVIDENCE OF FRAUD OR COERCION. THAT MIGHT INVALIDATE
THE AGREEMENTS, BUT THAT WASN’T HERE, AND THEY DISMISSED
THE EMPLOYEES’ ARGUMENT THAT THE COURT SHOULD FIND
IN THEIR FAVOR BASED UPON THE SO-CALLED
CHEVRON DOCTRINE, WHICH WOULD SAY THAT THE COURT
SHOULD DEFER TO AGENCY INTERPRETATIONS
IF THERE’S AMBIGUITY IN THE STATUTES. THE NLRB, NATIONAL LABOR
RELATIONS BOARD, WHICH ENFORCES THE NRLA,
HAD RULED BACK IN A 2012 ADMINISTRATIVE ACTION
THAT THE NLRA TRUMPED THE FAA. THE MAJORITY DISMISSES
THAT ARGUMENT WITH VERY LITTLE ANALYSIS. CHANCE: LAURIE, WHAT’S
THE LIKELY IMPACT OF THIS DECISION? LEVENSON: WELL, MOST CERTAINLY,
IT IS GOING TO MAKE IT MORE DIFFICULT FOR EMPLOYEES
TO BRING WORKPLACE COMPLAINTS, ESPECIALLY IN CASES
OF DISCRIMINATION AND SEXUAL HARASSMENT. FRANKLY, IT WILL COST
THE INDIVIDUAL EMPLOYEES MUCH MORE TO LITIGATE
THESE CLAIMS THAN THEY’RE LIKELY
TO RECOVER EVEN IF THEY WIN. CHANCE: THERE WAS
AN IMPASSIONED DISSENT READ FROM THE BENCH
BY JUSTICE GINSBURG IN THIS CASE,
WASN’T THERE, SUZANNA? SHERRY: YES. SHE SAID THAT
REQUIRING ADHERENCE TO ARBITRATION TAKES AWAY
THE EMPLOYEES’ BARGAINING POWER. THE EMPLOYEES’ STRENGTH
IS IN THEIR NUMBERS, AND SHE READS SECTION 7
OF THE NLRA AS WRITTEN TO PROTECT EMPLOYEES
WHO WANT TO JOIN TOGETHER IN COLLECTIVE LITIGATION,
AS WELL AS OTHER COLLECTIVE ACTIONS. SHE’S ESSENTIALLY ARGUING
FOR A BROAD INTERPRETATION ACCORDING TO THE PURPOSES
OF THE NLRA, THAT IF THE EMPLOYEES
HAVE A RIGHT– THE EMPLOYEES MUST HAVE A RIGHT
TO LITIGATE COLLECTIVELY, AND THEREFORE WAIVERS OF THEIR
RIGHT TO DO SO ARE UNLAWFUL. SHE ALSO POINTED OUT
THAT THE MAJORITY DECISION COULD LEAD TO INCONSISTENT
AND ANOMALOUS RESULTS IN INDIVIDUAL
ARBITRATION DECISIONS, EVEN WHERE THERE WERE
SIMILARLY SITUATED EMPLOYEES. WIGGINS: OK. THE DECISION
IN “MURPHY V. SMITH” WON’T AFFECT AS MANY PEOPLE
AS THE DECISION IN IN “EPIC,” BUT IT COULD HAVE
A SIGNIFICANT EFFECT FOR THE SMALLER POPULATION
IT CONCERNS. THE QUESTION SURROUNDS
SOME AMBIGUITY IN THE LANGUAGE
OF THE PRISON LITIGATION REFORM ACT OF 1995. THAT STATUTE SAYS THAT
WHEN A PRISONER WINS A CIVIL SUIT
AGAINST A PRISON OR A GUARD AND THE DISTRICT COURT
AWARDS THE PRISONER’S ATTORNEY’S FEES,
“A PORTION “OF THE PRISONER’S JUDGMENT
NOT TO EXCEED 25% “SHALL BE APPLIED TO SATISFY “THE AMOUNT OF THE ATTORNEY’S
FEES AWARDED “AGAINST THE DEFENDANT. “IF THE AWARD OF ATTORNEY’S FEES
IS NOT GREATER THAN 150% OF THE JUDGMENT, THE EXCESS
SHALL BE PAID BY THE DEFENDANT.” SO, SUZANNA, WHAT WAS
THE AMBIGUITY HERE? SHERRY: WELL, WE SHOULD START
BY EXPLAINING WHAT HAPPENED IN THIS CASE. THE PETITIONER HERE–MURPHY–
WAS A VICTIM OF A VICIOUS ASSAULT IN PRISON. HE WON A LAWSUIT
AGAINST TWO GUARDS, AND HE GOT ABOUT $300,000
IN DAMAGES AND A LITTLE OVER $100,000
IN ATTORNEY’S FEES, AND THE JUDGE ORDERED
THAT 10% OF HIS DAMAGES SHOULD GO TOWARD SATISFYING
THE ATTORNEY’S FEES AND THE DEFENDANT WOULD HAVE
TO PAY THE REST OF THE ATTORNEY’S FEES, BUT THE DEFENDANT ARGUED
THAT UNDER THE STATUTE MURPHY SHOULD HAVE TO PAY
THE FULL 25% OF THE ATTORNEY’S FEES
OUT OF HIS DAMAGES, AND THE AMBIGUITY WAS
WHETHER THE 25% AMOUNT STATED IN THE STATUTE
WAS A CEILING OR WAS A REQUIREMENT, ESSENTIALLY ASKING
WHETHER THE JUDGE HAS THE DISCRETION TO AWARD
A DIFFERENT AMOUNT THAN 25%. WIGGINS: OK. SO HOW DID
THE COURT COME DOWN ON THESE QUESTIONS? LEVENSON: WELL, JUSTICE GORSUCH
WROTE FOR THE MAJORITY THAT THE PRISONERS
WHO WERE SUCCESSFUL IN THEIR CIVIL RIGHTS SUITS
MUST GIVE, IF NECESSARY, 25%
OF THEIR AWARD TO COVER ATTORNEY’S FEES AND THAT TRIAL JUDGES
DO NOT HAVE THE DISCRETION TO APPORTION THE FEES. HIS REASONING–“WHEN
THE STATUTE SAYS “A PORTION OF THE JUDGMENT
NOT TO EXCEED 25% “SHALL BE APPLIED
TO ATTORNEY’S FEES, “THAT OBLIGATION
IS MANDATORY, “AND THE PHRASE TO SATISFY
THE AMOUNT “OF THE ATTORNEY’S FEES
MEANS TO DISCHARGE THE OBLIGATION IN FULL.” WIGGINS: SO THERE WAS A DISSENT
THAT SORT OF JUST CAME DOWN– ARGUED THE SAME
AS THE THIRD AND THE EIGHTH CIRCUIT
HAD PREVIOUSLY DECIDED. CAN YOU TELL US ABOUT THAT? LEVENSON: YES. JUSTICE
SOTOMAYOR WROTE FOR HERSELF AND 3 COLLEAGUES THAT
THE PHRASE “APPLIED TO SATISFY” MEANT
THAT WHATEVER AMOUNT IS ORDERED PAID
TOWARD ATTORNEY FEES GOES TOWARD PAYING DOWN
THE AMOUNT, BUT THERE IS NO MANDATORY 25% SHERRY: I THINK THIS IS
AN INTERESTING CASE BECAUSE BOTH THE MAJORITY
AND THE DISSENT HAD PRETTY PLAUSIBLE READINGS
OF THE STATUTE. IT SHOWS THAT EVEN
WHEN CONGRESS IS TRYING TO BE CLEAR, SOMETIMES
IT DOESN’T SUCCEED. SO NOW THE EFFECT IS–
OBVIOUSLY, THE RULE IS DETRIMENTAL TO PRISONERS, BUT IT DOES HAVE THE ADVANTAGE
OF BEING A BRIGHT-LINE RULE. HOWEVER, I THINK THERE’S
GONNA BE MORE QUESTIONS DOWN THE ROAD. IN THIS CASE, MURPHY HAD
A PRETTY LARGE AWARD, SO TAKING 25% FROM HIM WAS STILL
GONNA LEAVE HIM A FAIR AMOUNT, BUT WILL A JUDGE FEEL
COMFORTABLE TAKING 25% OF A MUCH SMALLER AWARD? ALSO, IN THIS CASE,
THE SUPREME COURT IS TRYING TO LIMIT THE DISCRETION
OF LOWER COURT JUDGES, AND THAT DOESN’T ALWAYS WORK
AS WELL AS THE SUPREME COURT HAD HOPED. WELL, THERE’S NOT MUCH
DISCRETION IN WHAT A JUDGE MUST DO TO ISSUE
WIRETAP ORDERS UNDER THE OMNIBUS CRIME CONTROL
AND SAFE STREETS ACT OF 1968. THE STATUTE REQUIRES
THE JUDGE TO FIND PROBABLE CAUSE TO SUPPORT
THE ISSUANCE OF THE ORDER, AS WELL AS SET FORTH
OTHER DETAILED REQUIREMENTS REGARDING THE APPLICATION
FOR A WIRETAP AND THE JUDICIAL ORDER
AUTHORIZING IT. SUPPRESSION AT TRIAL IS
THE PRICE PAID: IF ANY WIRE OR ORAL
COMMUNICATION WAS UNLAWFULLY INTERCEPTED; OR IF THE ORDER OF APPROVAL
UNDER WHICH IT WAS INTERCEPTED IS INSUFFICIENT ON ITS FACE; OR IF THE INTERCEPTION
WAS NOT MADE IN CONFORMITY WITH THE ORDER
OF AUTHORIZATION OR APPROVAL. WHICH ONE OF THESE ELEMENTS
WAS IN QUESTION IN “DAHDA V. UNITED STATES,”
LAURIE? LEVENSON: THE ARGUMENT
IN QUESTION IN THIS CASE WAS INSUFFICIENCY. LOS AND ROOSEVELT DAHDA
HAD ARGUED THAT EACH
OF THE 9 WIRETAP ORDERS AUTHORIZED TO GATHER
EVIDENCE AGAINST THEM ON A DRUG CONSPIRACY
WAS INSUFFICIENT ON ITS FACE BECAUSE EACH CONTAINED
A SENTENCE AUTHORIZING INTERCEPTION OF INFORMATION OUTSIDE OF THE TERRITORIAL
JURISDICTION OF THE AUTHORIZING JUDGE, BUT HERE, A UNANIMOUS COURT,
MINUS A RECUSED JUDGE GORSUCH, DISAGREED WITH THE DAHDAS. THE COURT SAID THAT
THE WIRETAP ORDERS AUTHORIZED BY THE JUDGE IN KANSAS
WERE NOT FACIALLY INSUFFICIENT, IN FACT, JUST BECAUSE THEY
INCLUDED LANGUAGE THAT AUTHORIZED OUTSIDE
OF THE DISTRICT. INSUFFICIENCY MEANS
SOMETHING IS MISSING. HERE JUSTICE BREYER WROTE
FOR THE COURT THAT THE ADDITIONAL LANGUAGE
MORE SURPLUSAGE AND THE GOVERNMENT DIDN’T
ACTUALLY SEEK TO USE THE CALLS OUTSIDE OF THE DISTRICT, SO THE ADDITIONAL INFORMATION
HAD NOT HURT ANYTHING. THE COURT RECOGNIZED THAT THERE
WILL BE SOME HARD QUESTIONS. LOWER COURTS MAY DISAGREE
ON WHAT KINDS OF DEFECTS ARE INSUFFICIENT. IT ALSO DISCUSSED
A HYPOTHETICAL, IMAGINING A WIRETAP ORDER
THAT AUTHORIZES 180 DAYS WORTH OF WIRETAPS EVEN THOUGH
THE STATUTE LIMITS IT TO 30 DAYS, AND THE COURT SAID IT WASN’T
DECIDING THAT QUESTION, BUT IT HINTED VERY STRONGLY THAT ONLY INFORMATION OBTAINED
BEYOND THE FIRST 30 DAYS WOULD BE SUPPRESSED. WIGGINS: OK. IN DECIDING
“JESNER V. ARAB BANK,” THE COURT REVISITED
A FEDERAL STATUTE THAT IT’S DEALT WITH
REPEATEDLY OVER THE YEARS AND ALWAYS
WITH SOME TREPIDATION. IT’S THE ALIEN TORT STATUTE,
ENACTED AS PART OF THE JUDICIARY’S
ACT OF 1789 IN DEALING WITH THE RIGHTS
OF NONCITIZENS TO SUE IN U.S. FEDERAL COURTS. “JESNER’S” CONSIDERATION
OF THE ATS PRODUCED ONE OF THIS TERM’S
MOST FRACTURED OPINIONS, SO, LAURIE, TELL US
ABOUT THE BACKGROUND. LEVENSON: A LITTLE BIT
ON THE BACKGROUND. THE VICTIMS OF SOME
TERRORIST ATTACKS IN A MIDDLE EAST COUNTRY SUED
THE ARAB BANK, WHICH IS A JORDANIAN
CORPORATION IN THE UNITED STATES, CLAIMING THAT IT HAD FUNNELED
MONEY TO THE TERRORISTS. THE VICTIMS ARGUED THAT
THE ATS GIVES THE U.S. FEDERAL COURTS
JURISDICTION OVER, QUOTE, “ANY CIVIL ACTION
BY AN ALIEN “FOR A TORT ONLY, COMMITTED
IN VIOLATION “OF THE LAW OF NATIONS
OR A TREATY OF THE UNITED STATES.” IN “JESNER,” THE COURT ACTED
TO DECIDE IF ONLY INDIVIDUALS
COULD BE SUED OR ALSO CORPORATIONS. THAT WAS THEIR FOCUS,
AND WHAT RESULTED FRANKLY WAS A PLURALITY DECISION, 3 CONCURRENCES,
AND A DISSENT. THE BOTTOM LINE, THOUGH,
IS THAT THE ATS CANNOT BE USED TO SUE
THE FOREIGN CORPORATIONS IN THE UNITED STATES COURTS
FOR ACTIVITIES THAT TAKE PLACE
OUTSIDE OF THE UNITED STATES. WIGGINS: OK. SO HOW DID THE
COURT REACH THAT DECISION? SHERRY: WELL, IT REVIEWED
THE HISTORY OF BOTH THE ATS AND ITS OWN PAST DECISIONS,
FOCUSING ESPECIALLY ON “SOSA V. ALVAREZ-MACHAIN” IN WHICH THE COURT
HAD HELD THAT THE ALIEN TORT STATUTE
AS A JURISDICTIONAL STATUTE DIDN’T CREATE
A CAUSE OF ACTION. LEVENSON: AND AS SUZANNA SAID,
THE PLURALITY DID APPLY THE SOSA TEST FOR LIMITED
APPLICATION OF THE ATS, AND WE HAVE THAT UP
ON THE SCREEN NOW. ONE, CAN THE PLAINTIFF
DEMONSTRATE THAT THE ALLEGED VIOLATION
IS, QUOTE, “OF A NORM THAT IS SPECIFIC, UNIVERSAL,
AND OBLIGATORY?” AND, TWO, EVEN ASSUMING THAT,
WOULD ALLOWING THE CASE TO PROCEED UNDER THE ATS
BE A PROPER EXERCISE OF JUDICIAL DISCRETION
IN LIGHT OF CONCERNS OVER FOREIGN AFFAIRS
AND SEPARATION OF POWERS? USING THAT TEST, THE COURT
CONCLUDED THAT INTERNATIONAL LAW FOR HUMAN RIGHTS
HAS NOT BEEN EXTENDED TO ACTIONS AGAINST CORPORATIONS
OR OTHER ARTIFICIAL ENTITIES AND THAT RECENT PRECEDENCE
OF THE COURT CAST SOME DOUBT ON THE AUTHORITY
OF THE COURTS TO EXTEND PRIVATE ACTIONS
OR PRIVATE CAUSES OF ACTIONS EVEN IN THE REALM
OF DOMESTIC LAW. OK, AND SO
THE 4-JUSTICE DISSENT? LEVENSON:
YES. THERE WAS A DISSENT THAT SAID THE PLURALITY
ACTUALLY MISUNDERSTOOD INTERNATIONAL LAW,
THAT IF YOU LOOK AT THE TEXT, THE HISTORY, THE PURPOSE
OF THE ATS, THAT DID SUPPORT THE IDEA
THAT CORPORATIONS CAN BE SUED
UNDER THAT LAW. THEY SAID THAT THERE ARE
OTHER LIMITATIONS PERHAPS THAT THE COURT COULD
PUT ON THESE ACTIONS AGAINST CORPORATIONS
SUCH AS REQUIRING THE ALIEN TO SUE
IN THEIR HOME COUNTRY FIRST, AND FINALLY,
THE DISSENTERS DISMISSED THESE POLITICAL CONCERNS
IN THIS CASE BECAUSE THE SOLICITOR GENERAL
AND THE CONGRESS ACTUALLY SUPPORTED
THE PLAINTIFFS IN THEIR ABILITY TO SUE. NEXT UP, FEDERALISM
AND SEPARATION OF POWERS. FEDERALISM
AND SEPARATION OF POWERS ARE ARGUABLY
THE TWO CENTRAL TENETS OF THE U.S. CONSTITUTION. FINDING A BALANCE
BETWEEN THE POWER OF THE FEDERAL AND STATE
GOVERNMENTS THAT WOULD ALLOW THE NEW COUNTRY TO FUNCTION
MORE EFFICIENTLY THAN IT HAD UNDER THE ARTICLES
OF CONFEDERATION WAS A REASON FOR CALLING
THE CONSTITUTIONAL CONVENTION IN 1787. ONCE THERE, THE CHIEF CHALLENGE
WAS DEVISING A GOVERNMENT THAT WOULD ALLOW EACH
OF ITS PARTS THE EFFECTIVE POWER
TO DO ITS JOB WITHOUT OVERWHELMING
THE OTHERS. THOSE TWO EFFORTS CONTINUE
TO THIS DAY AND PRESENTED THEMSELVES AGAIN
THIS TERM AT THE COURT. THE ISSUE IN “MURPHY V. NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION,” OR THE NCAA, WAS
THE AUTHORITY OF THE FEDERAL GOVERNMENT
OVER STATE LEGISLATURES. IN THE 1990s, CONGRESS PASSED THE PROFESSIONAL
AND AMATEUR SPORTS PROTECTION ACT, OR PASPA, WHICH PROHIBITED STATES
FROM PASSING LAWS AUTHORIZING SPORTS GAMBLING. IT ALSO MADE IT UNLAWFUL
FOR STATES TO ADVERTISE SUCH SCHEMES. PASPA DID NOT MAKE
SPORTS GAMBLING A FEDERAL CRIME, BUT INSTEAD, IT ALLOWED
THE ATTORNEY GENERAL, AS WELL AS AMATEUR
AND PROFESSIONAL SPORTS ORGANIZATIONS TO BRING
CIVIL ACTIONS TO ENJOIN ITS VIOLATION. SO HOW DID IT AFFECT
THE SITUATION IN NEW JERSEY, ERWIN? THE FEDERAL STATUTE REQUIRED
THAT STATES HAVE LAWS TO PROHIBIT SPORTS BETTING. IT CREATED AN EXCEPTION
FOR 4 STATES THAT ALREADY ALLOWED
SPORTS GAMBLING, AND IT SAID NEW JERSEY HAD
ONE YEAR FROM THE TIME OF THE ENACTMENT
OF THE FEDERAL LAW TO DECIDE WHETHER TO ALLOW
SPORTS BETTING. NEW JERSEY DIDN’T DO
ANYTHING DURING THAT YEAR. SUBSEQUENT TO THAT,
NEW JERSEY VOTERS PASSED AN INITIATIVE TO ALLOW
THE LEGISLATURE TO PERMIT SPORTS GAMBLING
IN NEW JERSEY. NEW JERSEY’S LEGISLATURE
THEN ENACTED SUCH A STATUTE PERMITTING AMATEUR
AND PROFESSIONAL SPORTS BETTING. FEDERAL DISTRICT COURT SAID,
“THAT’S PREEMPTED “BY FEDERAL LAW. “NEW JERSEY, YOU HAD A YEAR,
AND YOU DIDN’T TAKE ADVANTAGE OF IT.” THE THIRD CIRCUIT AFFIRMED. THE UNITED STATES SUPREME COURT
DENIED REVIEW. THEN THE NEW JERSEY
LEGISLATURE TOOK A DIFFERENT APPROACH. IT REPEALED ITS EXISTING LAW, THE ONE THAT WAS ON THE BOOKS THAT PROHIBITED SPORTS GAMBLING. THE FEDERAL
DISTRICT COURT SAID, “THIS IS STILL PREEMPTED. “YOU HAD YOUR YEAR
TO ALLOW SPORTS GAMBLING. YOU DIDN’T DO IT.” THE THIRD CIRCUIT AFFIRMED, BUT THE UNITED STATES
SUPREME COURT REVERSED AND RULED IN FAVOR
OF THE STATE OF NEW JERSEY. THE SUPREME COURT SAID
IT’S WELL ESTABLISHED THAT IT VIOLATES
THE TENTH AMENDMENT FOR CONGRESS TO COMMANDEER
STATE AND LOCAL GOVERNMENTS. IN CASES LIKE “NEW YORK
V. THE UNITED STATES” AND “PRINTZ V.
THE UNITED STATES,” THE SUPREME COURT SAID
CONGRESS CANNOT COMPEL STATE GOVERNMENTS,
LOCAL GOVERNMENTS TO ENACT LAWS,
TO ENFORCE A FEDERAL MANDATE, AND THE COURT SAID THAT’S
EXACTLY WHAT CONGRESS WAS DOING HERE. ESSENTIALLY WHAT THE COURT SAID
IS THAT THE DIFFERENCE BETWEEN COMPELLING A STATE
TO ENACT LEGISLATION AND PROHIBITING IT
FROM REPEALING EXISTING LEGISLATION IS
AN EMPTY DISTINCTION, AND IN BOTH CASE,
CONGRESS IS VIOLATING THE DIRECTIVE THAT CONGRESS
CAN’T ISSUE DIRECT ORDERS TO STATE LEGISLATURES. WIGGINS: SO WHAT ARE
THE IMPLICATIONS? CHEMERINSKY: WELL, ONE
IMPLICATION IS ANY STATE THAT WANTS TO
NOW CAN ALLOW SPORTS BETTING ON BOTH PROFESSIONAL
AND AMATEUR ATHLETICS. I ALSO THINK THERE’S
GONNA BE IMPLICATIONS FOR THIS DECISION
FOR SOME CASES NOW PENDING IN THE LOWER FEDERAL COURTS. PRESIDENT TRUMP ISSUED
AN EXECUTIVE ORDER THAT SAID THAT STATE AND LOCAL
GOVERNMENTS THAT DON’T COOPERATE WITH IMMIGRATION
OFFICIALS WILL LOSE THEIR
FEDERAL LAW ENFORCEMENT FUNDS. 3 FEDERAL DISTRICT COURTS
IN SAN FRANCISCO, CHICAGO, AND PHILADELPHIA
HAVE FOUND THAT TO BE IMPERMISSIBLE COMMANDEERING. THE SUPREME COURT’S
STRONG ENDORSEMENT OF THIS ANTICOMMANDEERING
PRINCIPLE COULD BE QUITE IMPORTANT
FOR THAT LITIGATION. IN “SOUTH DAKOTA V. WAYFAIR,”
THE QUESTION WAS THE POWER
OF THE FEDERAL GOVERNMENT OVER THE STATES IN RELATION
TO INTERSTATE COMMERCE. PREVIOUS DECISIONS
BY THE SUPREME COURT HAD PROHIBITED STATES
FROM COLLECTING SALES TAX ON BUSINESSES THAT SOLD
GOODS IN THEIR STATES UNLESS THEY HAD
A PHYSICAL PRESENCE THERE. DOING OTHERWISE,
THE COURT RULED, WOULD PLACE AN UNDO BURDEN
ON THE INTERSTATE COMMERCE AND VIOLATE THE DORMANT
COMMERCE CLAUSE. FACING AN ERODING SALES TAX BASE
AND THE LOSS OF REVENUE TO PAY FOR STATE SERVICES, SOUTH DAKOTA PASSED A LAW
REQUIRING OUT-OF-STATE SELLERS TO COLLECT AND REMIT
SALES TAX AS IF THEY HAD
A PHYSICAL PRESENCE IN THE STATE. NOW THE LAW ONLY COVERED SELLERS
THAT DELIVERED MORE THAN $100,000 OF GOODS
INTO THE STATE ANNUALLY OR ENGAGED IN 200 OR MORE
SEPARATE TRANSACTIONS FOR THE DELIVERY OF GOODS
OR SERVICES INTO THE STATE. DEFENDING THE LAW
BEFORE THE SUPREME COURT, SOUTH DAKOTA ASKED THE JUSTICES
TO OVERTURN TWO PRECEDENTS IN DORMANT COMMERCE CLAUSE
JURISPRUDENCE. IT ARGUED THAT THEY HAD BECOME
OUTDATED. DID THE JUSTICES
DO THAT, SUZANNA? SHERRY: BY A 5-4 MAJORITY,
THEY DID DO THAT. THE TWO PRIOR DECISIONS
WERE “QUILL V. NORTH DAKOTA” AND “NATIONAL BELLAS HESS V. DEPARTMENT OF REVENUE
OF ILLINOIS,” AND BOTH OF THEM
WERE OVERRULED. JUSTICE KENNEDY WROTE
THE MAJORITY OPINION. HE SAID THAT “QUILL” WAS WRONG
WHEN IT WAS DECIDED AND HAD BECOME EVEN MORE WRONG
OVER TIME BECAUSE IT CREATED
A TAX HAVEN FOR INTERNET COMPANIES AND IT DISCRIMINATED
AGAINST LOCAL COMPANIES, WHO HAD TO PAY THE TAX. HE SAID IT CREATED
A FORMALIST ARTIFICIAL RULE THAT BORE NO RESEMBLANCE
TO CURRENT ECONOMIC REALITY AND THAT IT DIDN’T EVEN CREATE
A BRIGHT LINE WITH CERTAINTY BECAUSE
THERE WAS A LOT OF UNCERTAINTY
ABOUT WHAT CONSTITUTES A PHYSICAL PRESENCE. SO DID THE DECISION
LAY DOWN A NEW RULE FOR WHEN STATES COULD TAX
OUT-OF-STATE COMPANIES? CHEMERINSKY: NO, THE COURT DID
NOT LAY DOWN A NEW LAW; INSTEAD, JUST AS KENNEDY’S
MAJORITY-OPINION SAID, THAT WE SHOULD RELY ON THE TEST
THAT WAS ARTICULATED IN “COMPLETE AUTO TRANSIT
V. BRADY.” THE ISSUE IN THAT CASE
WAS THE ABILITY OF A STATE TO TAX
OUT-OF-STATE TRANSACTIONS. IT’S DIFFERENT THAN
THE PRECISE ISSUE IN THIS CASE, WHICH IS ABOUT WHETHER
A STATE CAN FORCE OUT-OF-STATE BUSINESSES
TO COLLECT SALES TAX. IN “COMPLETE
AUTO TRANSIT V. BRADY,” THE SUPREME COURT ARTICULATED
A 4-PART TEST FOR DETERMINING WHETHER
A STATE TAX VIOLATES THE DORMANT COMMERCE CLAUSE. I UNDERSTAND WE HAVE
THAT 4-PART TEST ON THE SCREEN. FIRST, DOES THE TAX APPLY
TO AN ACTIVITY WITH A SUBSTANTIAL NEXUS
TO THE TAXING STATE? SECOND, IS THE TAX
FAIRLY APPORTIONED? THIRD, THE TAX
MUST NOT DISCRIMINATE AGAINST INTERSTATE COMMERCE,
AND FOURTH, IT MUST BE FAIRLY RELATED TO SERVICES
THAT THE STATE PROVIDES. OF COURSE, THE KEY
FOR FUTURE LITIGATION IS GOING TO BE THE FIRST PRONG
OF THE TEST, WHETHER THERE IS A SUBSTANTIAL
NEXUS TO THE TAXING STATE. AND HERE, JUST AS KENNEDY
ARTICULATED THE TEST THAT’S BEEN USED BEFORE–
AND I UNDERSTAND THAT THAT’S ON THE SCREEN AS WELL–
WHERE THE COURT SAYS A SUBSTANTIAL NEXUS… CHANCE: NOW, THERE WAS A DISSENT
WRITTEN IN THIS CASE BY THE CHIEF JUSTICE
WITH A FAIRLY UNUSUAL LINEUP, AS WAS THE MAJORITY.
WHAT WAS THAT, SUZANNA? WELL, YES, IT WAS QUITE UNUSUAL. THE CHIEF WAS JOINED IN HIS
DISSENT BY JUSTICES BREYER, SOTOMAYOR, AND KAGAN. AND JUSTICE KENNEDY’S MAJORITY
INCLUDED JUSTICES ALITO, GORSUCH, THOMAS, AND GINSBURG, SO THOSE ARE TWO LINEUPS
YOU DON’T SEE VERY OFTEN. THE DISSENT’S POSITION WAS
BASICALLY THAT THE COURT SHOULD HAVE APPLIED STARE DECISIS
AND UPHELD THIS PRECEDENCE AND ESSENTIALLY LEFT IT
TO CONGRESS TO SOLVE THE PROBLEM OF WHATEVER DISCRIMINATION THERE
WAS BETWEEN INTERNET COMPANIES AND BRICK-AND-MORTAR
COMPANIES. IT ALSO–THE DISSENT
ALSO POINTED OUT THAT WHILE E-COMMERCE HAD TRANSFORMED
THE MODERN ECONOMY, E-COMMERCE ALSO DEVELOPED
UNDER THE RULES OF “QUILL” AND “BELLAS HESS,”
AND THAT THEREFORE TAKING AWAY THOSE RULES MIGHT BE
QUITE DISRUPTIVE. CHANCE: HOW IMPORTANT IS
THIS DECISION? WHAT DO YOU THINK
THE EFFECT MAY BE? CHEMERINSKY: THIS CASE IS GOING
TO BE VERY IMPORTANT. IT’S GOING TO MAKE SUBSTANTIAL
ADDITIONAL SALES-TAX REVENUE FOR STATE GOVERNMENTS. JUSTICE KENNEDY POINTED OUT
THAT STATE GOVERNMENTS WERE NOW LOSING AS MUCH
AS $33 BILLION A YEAR IN SALES-TAX REVENUE
THAT THEY CAN NOW COLLECT. ALSO, I THINK, FROM THE PERSPECTIVE
OF THE FEDERAL COURTS, IT’S GOING TO LEAD TO
A LOT OF LITIGATION. THE TEST IS, WHAT’S
A SUBSTANTIAL NEXUS TO THE TAXING STATE? I READ THE DEFINITION.
IT LEAVES SO MUCH AMBIGUITY. SHERRY: I AGREE, AND WHAT IF A STATE ENACTS
A LAW, UNLIKE THIS ONE, THAT REQUIRES EVERY SELLER
OUT OF STATE TO COLLECT TAXES, EVEN PEOPLE WHO JUST SELL
A FEW THINGS ON eBAY OR ON THEIR OWN WEB SITE? OK. THANK YOU. OUR SEPARATION-OF-POWERS
DECISION IS “LUCIA V. SECURITIES
AND EXCHANGE COMMISSION.” UNDER THE APPOINTMENTS CLAUSE
OF THE CONSTITUTION, OFFICERS OF THE UNITED STATES, AS DISTINCT FROM MERE EMPLOYEES
OF THE FEDERAL GOVERNMENT, MAY BE APPOINTED
BY THE PRESIDENT, COURTS OF LAW,
OR HEADS OF DEPARTMENT. THE SECURITIES
AND EXCHANGE COMMISSION, OR SEC,
HAS STATUTORY AUTHORITY TO ENFORCE THE NATION’S
SECURITIES LAWS. WHEN IT DOES THIS BY INSTITUTING
AN ADMINISTRATIVE PROCEEDING AGAINST SOMEONE, THE COMMISSION
OFTEN DELEGATES THAT TASK TO AN ADMINISTRATIVE
LAW JUDGE, OR AN ALJ. IN OVERSEEING ONE OF THESE
ADVERSARIAL PROCEEDINGS, THE ALJ EXERCISES AN AUTHORITY
COMPARABLE TO THAT OF A FEDERAL DISTRICT JUDGE
CONDUCTING A BENCH TRIAL. AND ALTHOUGH THE DECISION ISSUED
BY THE ALJ AT THE END OF THE PROCEEDING IS REVIEWABLE
BY THE COMMISSION, IF THE COMMISSION DECIDES
NOT TO DO THAT, THE ALJ’s DECISION BECOMES FINAL AND IS DEEMED AN ACTION
OF THE COMMISSION. BUT FOR ALL THAT AUTHORITY,
THE ALJs AT THE SEC ARE SELECTED BY OTHER EMPLOYEES
OF THE COMMISSION, NOT THE COMMISSIONERS
THEMSELVES. SO HOW DOES THE COURT COME DOWN
ON THIS ISSUE? CHEMERINSKY: THE SECURITIES
EXCHANGE COMMISSION BEGAN AN INVESTIGATION
OF RAYMOND LUCIA. HE HAD A RETIREMENT
INVESTMENT PLAN. HE CALLED IT “BUCKETS OF MONEY.” THE ADMINISTRATIVE
LAW JUDGE FOUND THAT HE WAS IN VIOLATION
OF FEDERAL SECURITIES LAW. CIVIL PENALTIES OF $300,000
WERE IMPOSED ON LUCIA; ALSO, A LIFETIME BAN
ON INVESTMENT ADVICE WAS IMPOSED ON HIM. HE ARGUED, THOUGH,
THAT THE APPOINTMENT OF THE ADMINISTRATIVE LAW JUDGE
VIOLATED THE CONSTITUTION. AS YOU SAID, THE ALJ WAS HIRED
AS AN EMPLOYEE. HE SAID THAT THE ALJ SHOULD BE
TREATED AS AN OFFICE OF THE UNITED STATES,
SO THAT UNDER THE CONSTITUTION, THE APPOINTMENT WOULD BE
EITHER BY THE PRESIDENT OR THE HEADS OF DEPARTMENTS
OF THE LOWER FEDERAL COURTS. SHERRY: AND MAJORITY ACTUALLY
DIDN’T HAVE MUCH TROUBLE WITH THIS QUESTION. THE MAJORITY THOUGHT
THAT 3 PRIOR DECISIONS PRETTY MUCH ANSWERED
THE QUESTION OF WHO’S AN EMPLOYEE
AND WHO’S AN OFFICER. “UNITED STATES V. GERMAINE”
STRESSED THE IDEA OF TENURE AND DURATION AND MADE IT CLEAR
THAT AN INDIVIDUAL MUST OCCUPY A CONTINUING POSITION
ESTABLISHED BY LAW TO QUALIFY AS AN OFFICER, AND THEN “BUCKLEY V. VALEO”
LATER DETERMINED THAT MEMBERS OF FEDERAL
COMMISSIONS ARE OFFICERS, RATHER THAN EMPLOYEES,
ONLY IF THEY EXERCISE SIGNIFICANT AUTHORITY PURSUANT TO THE LAWS
OF THE UNITED STATES. SO THE FOCUS OF THE INQUIRY IS
ON THE EXTENT OF THE AUTHORITY THAT AN INDIVIDUAL WIELDS
IN A PARTICULAR POSITION. CHANCE: SO DID
THE COURT THEN DEFINE SIGNIFICANT AUTHORITY
IN “LUCIA”? CHEMERINSKY: NO,
THE COURT FOUND IT UNNECESSARY TO ARTICULATE
A NEW DEFINITION. THE COURT SAID THAT
IN “FREYTAG V. COMMISSIONER,” A DEFINITION HAD BEEN ANNOUNCED. IT’S SIGNIFICANT,
UNADORNED AUTHORITY. THE COURT IN THAT CASE FOUND
THAT THE SPECIAL TAX JUDGES WERE EXERCISING SIGNIFICANT,
UNADORNED AUTHORITY. THE COURT SAID HERE,
THERE’S REALLY NO DIFFERENCE BETWEEN THE ADMINISTRATIVE
LAW JUDGE AND THE SPECIAL TAX JUDGES,
AND SO THAT THEREFORE, THIS IS SOMEBODY WHO HAD TO BE
APPOINTED BY THE PRESIDENT TO HEAD THE DEPARTMENTS OF
THE LOWER FEDERAL COURTS, AND THE COURT SAID THERE HAS
TO BE A NEW PROCEEDING AGAINST LUCIA IN FRONT
OF SOMEBODY ELSE WHO’S BEEN PROPERLY APPOINTED. SO HOW SIGNIFICANT
DID YOU THINK THIS DECISION IS? CHEMERINSKY: I THINK IT’S
GOING TO BE SIGNIFICANT. TO START WITH,
IT’S GOING TO MEAN THAT ADMINISTRATIVE LAW JUDGES THROUGHOUT THE FEDERAL
GOVERNMENT ARE EITHER GOING TO HAVE TO BE APPOINTED
BY THE PRESIDENT OR THE HEADS OF DEPARTMENTS OF
THE LOWER FEDERAL COURTS. NOW, FOR THE SECURITIES
AND EXCHANGE COMMISSION, THERE’S ONLY
5 ADMINISTRATIVE LAW JUDGES. BUT IN THE SOCIAL SECURITY
ADMINISTRATION, THERE’S 1,500
ADMINISTRATIVE LAW JUDGES, AND EITHER CONGRESS IS
GOING TO HAVE TO DECIDE OR THERE’S GOING TO HAVE TO BE
SOME VOLUNTARY AGREEMENT TO COMPLY WITH WHAT THE
SUPREME COURT HAS SAID REQUIRES. I ALSO THINK THIS CASE IS
GOING TO RAISE A MAJOR ISSUE WITH REGARD
TO REMOVAL POWER. THIS IS SOMETHING
THAT JUSTICE BREYER IDENTIFIED. ONCE THESE INDIVIDUALS
ARE DEEMED TO BE OFFICERS OF THE UNITED STATES,
THEN WHO CAN REMOVE THEM? IT’S GOING TO BE
A MAJOR QUESTION, AND IT’S GOING TO BE LITIGATED
A GREAT DEAL IN THE FUTURE. I THINK THIS CASE IS ALSO PART
OF A LARGER RECONSIDERATION OF THIS BY THIS COURT OF
THE ADMINISTRATIVE STATE. ALREADY, NEXT TERM,
THERE’S A CASE ON WHETHER A PARTICULAR
BROAD DELEGATIONS OF LEGISLATIVE POWER
ARE UNCONSTITUTIONAL, AND I THINK THE SIGNS
ARE THAT WE COULD SEE A SIGNIFICANT CHALLENGE TO
THE CHEVRON DEFERENCE PRINCIPLE AS WELL. WIGGINS: OK. THANKS. WE’LL BE BACK WITH
SOME DECISIONS DEALING WITH CRIMINAL TRIALS,
PLEAS, AND SENTENCING. OUR NEXT TWO DECISIONS
BOTH ADDRESS THE MEANING AND APPLICATION OF
THE SAME FEDERAL STATUTE. THAT IS 18 USC, SECTION 3582,
SUBSECTION C2. THAT LAW AUTHORIZES
A DISTRICT JUDGE TO REDUCE A DEFENDANT’S
SENTENCE IF… THE SENTENCING COMMISSION
HAS LOWERED THE SENTENCING GUIDELINES RANGE
FOR MOST DRUG OFFENSES AND MADE THESE CHANGES
RETROACTIVE, LEADING TO A LARGE NUMBER
OF PRISONERS SENTENCED UNDER THE ORIGINAL GUIDELINE
RANGE TO SEEK A REDUCTION UNDER 3582(c)(2). THE APPLICANTS IN OUR NEXT
TWO CASES WERE AMONG THEM. LAURIE, CAN YOU TELL US
ABOUT THE FIRST CASE, “HUGHES V. UNITED STATES”? LEVENSON: YES, “HUGHES” IS
THE MORE COMPLICATED OF THE TWO CASES. ERIK HUGHES WAS INDICTED
ON A DRUG CONSPIRACY WITH DRUG CHARGES
AND GUN CHARGES RELATED TO CONSPIRACY
TO DISTRIBUTE METH. AND HE AGREED TO WHAT
WE CALL A TYPE-C TYPE OF PLEA AGREEMENT
WITH THE GOVERNMENT. HUGHES WOULD PLEAD GUILTY
TO TWO CHARGES. THE GOVERNMENT WOULD DISMISS
TWO OTHER CHARGES, AND THEN THE GOVERNMENT WOULD
NOT FILE ANY INFORMATION WHICH WOULD MAKE HIM SUBJECT
TO A MANDATORY LIFE SENTENCE. TYPE-C ARE BINDING AGREEMENTS
UNDER THE FEDERAL RULES OF CRIMINAL PROCEDURE,
AND UNDER THE AGREEMENT, HUGHES WOULD SERVE 180 MONTHS,
BUT THE AGREEMENT DID NOT REFER TO ANY PARTICULAR
GUIDELINE RANGE. THE DISTRICT COURT
ACCEPTED THE AGREEMENT, AND HUGHES WAS SENTENCED
TO 180 MONTHS. THEN, AFTER THAT, THE SENTENCING COMMISSION LATER
AMENDED THE GUIDELINES, SO HUGHES WOULD HAVE BEEN
SUBJECT TO ABOUT 3 TO 4 YEARS LOWER ON THE GUIDELINES
AS APPLIED TO HIS CRIMES. PROSECUTORS ENDED UP ARGUING
THAT HUGHES DID NOT QUALIFY FOR THE REDUCTION BECAUSE HE HAD
A TYPE-C TYPE OF AGREEMENT, AND IT DIDN’T REFER TO
THE GUIDELINES AT ALL; IT ONLY REFERRED TO
THE SENTENCING OF 180 MONTHS. CHANCE: SO THE QUESTION WAS,
CAN A PRISONER WHO AGREED TO A TYPE-C PLEA STILL GET
A 3582(c)(2) REDUCTION IF THE SENTENCING COMMISSION
RETROACTIVELY REDUCES THE GUIDELINES RANGE FOR THE
CRIME HE WAS CONVICTED OF? AND THE SUPREME COURT SAID YES. THEY RULED IN FAVOR
OF HUGHES HERE. THE COURT SAID THAT
A CRIMINAL DEFENDANT WHO TAKES A TYPE-C PLEA
CAN TAKE ADVANTAGE OF A REDUCTION IN
THE GUIDELINE RANGE WHERE THE TRIAL JUDGE RELIED
ON THE GUIDELINE RANGE, AT LEAST IN PART,
WITH REGARD TO THE SENTENCE. JUSTICE KENNEDY WROTE
THE OPINION FOR THE COURT HERE. HE FOCUSED ON THE PLAIN LANGUAGE
OF THE STATUTE. HE ALSO NOTED THAT HERE,
THE TRIAL JUDGE HAD REFERRED TO THE SENTENCING GUIDELINES
IN IMPOSING THE SENTENCE. I THINK THIS IS IMPORTANT
BECAUSE IT RESOLVES SOME CONFUSION
IN THE SUPREME COURT. IN “FREEMAN V. UNITED STATES”
IN 2011, THE SUPREME COURT HAD SPLIT
4-1-4 ON THIS QUESTION. ALSO, JUSTICE KENNEDY SAID
THAT PROCEEDING IN THIS WAY REALLY SERVES THE PURPOSES
OF THE SENTENCING GUIDELINES, MAKING SURE THAT
CRIMINAL DEFENDANTS WHO’VE COMMITTED SIMILAR CRIMES
ARE GIVEN SIMILAR SENTENCES. CHANCE: HMM.
SO THIS WAS A 6-3 DECISION WITH THE CHIEF WRITING
IN DISSENT. WHAT DID HE SAY? LEVENSON: WELL, THE DISSENT SAID
THAT TYPE-C SENTENCES RELY ON THE PLEA AGREEMENT,
NOT THE SENTENCING GUIDELINES, AND DEFENDANTS WHO TAKE
THIS TYPE OF PLEA SHOULD NOT BE ELIGIBLE FOR THOSE REDUCTIONS
UNDER 3582(c)(2). AND THE CHIEF ALSO IMAGINED
THAT IN THE FUTURE, THOUGH, PROSECUTORS COULD GET AROUND
THIS PARTICULAR DECISION BY ADDING PROVISION
TO TYPE-C PLEA AGREEMENTS THAT THE DEFENDANT ACTUALLY
WAIVES ANY RIGHT TO SEEK THE SENTENCE REDUCTION FOLLOWING
A FUTURE GUIDELINES AMENDMENT. SO, ERWIN, CAN YOU
TELL US WHAT HAPPENED IN OUR NEXT CASE,
“KOONS V. UNITED STATES”? HERE, THE SUPREME COURT RULES
IN FAVOR OF THE GOVERNMENT AND AGAINST
THE CRIMINAL DEFENDANTS. WHAT’S IMPORTANT TO NOTE
HERE IS IT INVOLVES 5 CRIMINAL DEFENDANTS,
AND THEIR SENTENCES WERE BASED NOT ON THE SENTENCING
GUIDELINES, BUT ON FEDERAL STATUTES PROVIDING FOR
THE MANDATORY MINIMUM SENTENCES. NOW, THEY COULD HAVE BEEN
SENTENCED UNDER THE GUIDELINES, AND THE SENTENCING COMMISSIONER
REDUCED THE GUIDELINE RANGE FOR THEIR SENTENCES, BUT
THE SUPREME COURT SAYS WHEN THE CRIMINAL DEFENDANTS’
SENTENCES WERE BASED ON THE MANDATORY MINIMUMS
IN FEDERAL LAW AND NOT THE SENTENCING
GUIDELINES, THEN THE REDUCTION
IS APPROPRIATE. IN THIS INSTANCE, IN FACT,
THE DEFENDANTS HAD BEEN GIVEN SENTENCES LESS THAN
THE MANDATORY MINIMUMS BECAUSE OF THE COOPERATION WITH FEDERAL
LAW ENFORCEMENT AUTHORITY. SO, LAURIE, WHAT,
DO YOU THINK, ARE THE IMPLICATIONS
OF THIS DECISION? WELL, THIS DECISION,
I THINK, PROVIDES SOME STRAIGHTFORWARD GUIDANCE
FOR THE LOWER COURTS IN DECIDING ON A REDUCTION
IN THE GUIDELINES, IF–WHETHER IT PROVIDES
A BASIS FOR RELIEF. UNDER 3582(c)(2), THE COURT HAS TO DECIDE WHETHER
THE SENTENCE WAS ACTUALLY BASED ON THE GUIDELINES
OR OTHER CONSIDERATIONS, AND ONLY SENTENCES THAT ARE
ACTUALLY BASED ON THE GUIDELINES WOULD BE ELIGIBLE FOR
THE REDUCTION UNDER 3582(c)(2). CHANCE: THE COURT ALSO DEALT
WITH THE ISSUE OF WHETHER A DEFENDANT WHO IS SENTENCED
UNDER THE WRONG GUIDELINES RANGE CAN OBJECT TO
THAT MISTAKE ON APPEAL IF HE DIDN’T OBJECT
IN THE DISTRICT COURT. THIS WAS “ROSALES-MIRELES
V. UNITED STATES.” WHEN FLORENCIO ROSALES-MIRELES
WAS SENTENCED FOR ILLEGALLY ENTERING
THE COUNTRY, THE PROBATION OFFICE
MISTAKENLY COUNTED A PREVIOUS STATE MISDEMEANOR
CONVICTION TWICE. THAT RAISED THE GUIDELINES RANGE
THAT HE WAS SENTENCED UNDER. ROSALES-MIRELES DIDN’T OBJECT
IN DISTRICT COURT, BUT LATER OBJECTED TO
THE ERROR ON APPEAL. SO WHAT WERE
THE APPELLATE COURT’S OPTIONS UNDER THESE CIRCUMSTANCES? UNDER FEDERAL RULE
OF CRIMINAL PROCEDURE 52(b), AN ERROR CAN BE RAISED ON APPEAL EVEN IF IT WASN’T RAISED
IN THE TRIAL COURT IF IT’S A PLAIN ERROR, AND IT AFFECTS
SUBSTANTIAL RIGHTS. IN “UNITED STATES V. OLANO,” THE SUPREME COURT ARTICULATED
A 4-PART TEST FOR DETERMINING WHEN SUCH AN
ERROR CAN BE RAISED ON APPEAL, EVEN THOUGH IT WASN’T
PRESENTED BELOW. AS I UNDERSTAND IT, WE HAVE
THAT 4-PART TEST ON THE SCREEN. FIRST… SECOND… THIRD… AND FINALLY, FOURTH… WHAT THIS CASE IS ABOUT IS
THE FOURTH OF THOSE FACTORS. CHANCE: HMM. LEVENSON: AND IN THIS CASE,
THE FIFTH CIRCUIT FOUND THAT THE ERROR WAS PLAIN AND
AFFECTING SUBSTANTIAL RIGHTS, BUT DECLINED TO EXERCISE ITS
DISCRETION TO ACTUALLY CORRECT THE MISTAKE BECAUSE IT SAID
THAT THE ERROR DID NOT SERIOUSLY AFFECT THE FAIRNESS
OR THE INTEGRITY OF THE JUDICIAL PROCEEDINGS. IN ORDER TO DO SO,
THE CIRCUIT SAID IT HAD TO SHOCK THE CONSCIENCE
OF THE COMMON MAN. WIGGINS: BUT THE SUPREME
COURT DISAGREED WITH THE FIFTH CIRCUIT,
DIDN’T IT? IT FOUND THAT STANDARD
TOO RESTRICTIVE. LEVENSON: IT DID.
IN A 7-2 DECISION WITH JUSTICE SOTOMAYOR WRITING
FOR THE MAJORITY, THE COURT HELD THAT
AN ERROR IN CALCULATING THE GUIDELINES RANGE IS ONE THAT AFFECTS
THE FAIRNESS, INTEGRITY, AND PUBLIC REPUTATION
OF THE COURTS. IN FACT, THE COURTS
SPECIFICALLY SAID THAT THE PROOF OF A PLAIN GUIDELINE ERROR
THAT AFFECTS SUBSTANTIAL RIGHTS SATISFIES THAT BURDEN
OF PERSUASION, OF SHOWING THAT IT
AFFECTED THE FAIRNESS, INTEGRITY, AND PUBLIC
REPUTATION OF COURTS. NOW, THE MAJORITY DOES SAY THAT WHILE ANY
EXERCISE OF DISCRETION UNDER OLANO’S
FOURTH PRONG REQUIRES AN INDIVIDUAL,
CASE-SPECIFIC INQUIRY, THERE WERE NO COUNTERVAILING
FACTORS IN THIS CASE, AND THEREFORE IT WAS
SATISFYING THE ERROR. CHEMERINSKY: I THINK THIS CASE
CAN HAVE PRACTICAL IMPLICATIONS. I THINK IT WILL MAKE IT EASIER
FOR CRIMINAL DEFENDANTS TO CHALLENGE
THEIR SENTENCE ON APPEAL EVEN IF THEY DIDN’T RAISE ERRORS
IN THE DISTRICT COURT. I THINK THE FACT
THAT THE COURT REJECTS THE “SHOCKS THE CONSCIENCE” TEST
MAYBE WAS MOST IMPORTANT IN TERMS OF PRACTICAL EFFECT. IT’S UNCLEAR, THOUGH, WHAT IT’S
GOING TO MEAN BEYOND THE SENTENCING CONTEXT. OK, THANK YOU. BEFORE WE TURN AWAY
FROM THE DECISIONS DEALING WITH THE SENTENCING GUIDELINES,
WE WANT TO TELL YOU ABOUT THE COURT’S DECISION IN
“CHAVEZ-MESA V. UNITED STATES.” CHAVEZ-MESA WAS SENTENCED
TO A TERM AT THE VERY BOTTOM OF HIS
SENTENCING GUIDELINES RANGE. WHEN THE SENTENCING
COMMISSION LATER LOWERED THE GUIDELINES RANGE FOR
THE CRIME HE WAS CONVICTED OF, CHAVEZ-MESA SOUGHT
A MODIFICATION TO HIS SENTENCE BASED
ON THE CHANGE. THE JUDGE LOWERED HIS SENTENCE,
BUT NOT ALL THE WAY TO THE BOTTOM OF THE NEW RANGE,
AND CHAVEZ-MESA APPEALED ON THE GROUND THAT THE JUDGE
HAD NOT ADEQUATELY EXPLAINED HIS REASONS FOR CHOOSING
THE NEW SENTENCE. HE ALSO ARGUED THAT THE
NEW SENTENCE SHOULD HAVE BEEN AT THE VERY BOTTOM
OF THE NEW RANGE. A 5-3 MAJORITY DISAGREED
WITH CHAVEZ-MESA. JUSTICE GORSUCH DIDN’T
TAKE PART IN THE DECISION BECAUSE IT ORIGINATED
IN HIS FORMER CIRCUIT. THE MAJORITY LOOKED BACK
AT SOME OF ITS PRIOR DECISIONS AND CONCLUDED THAT THE RECORD
OF THE RE-SENTENCING AS A WHOLE, INCLUDING THE JUDGE’S COMMENTS
AT THE INITIAL SENTENCING, SUPPORTED THE JUDGE’S DECISION
NOT TO IMPOSE A NEW SENTENCE AT THE VERY BOTTOM OF
THE NEW RANGE. THE COURT DID NOT, HOWEVER,
DECIDE MORE BROADLY WHETHER THE OBLIGATION
OF EXPLANATION IS THE SAME AT INITIAL SENTENCING
AND AT RE-SENTENCING AFTER A GUIDELINE’S
MODIFICATION. NEXT, “CLASS VS. UNITED STATES”
POSES AN IMPORTANT QUESTION NOTED BY JUSTICE BREYER
IN HIS MAJORITY OPINION. DOES A GUILTY PLEA BAR
A CRIMINAL DEFENDANT FROM LATER APPEALING
HIS CONVICTION ON THE GROUNDS THAT THE STATUTE OF CONVICTION
VIOLATES THE CONSTITUTION? A FEDERAL LAW PROHIBITS
HAVING FIREARMS IN CAPITOL BUILDINGS
OR ON CAPITOL GROUNDS. CLASS WAS INDICTED FOR HAVING
FIREARMS IN HIS LOCKED CAR ON THE GROUNDS OF
THE U.S. CAPITOL. HE MOVED TO DISMISS
THE CHARGES, BASED ON THE SECOND AMENDMENT
AND DUE PROCESS GROUNDS, BUT THE DISTRICT COURT
DENIED HIS MOTION. THEN WHAT HAPPENED, ERWIN? CHEMERINSKY: HE THEN PLED GUILTY
TO THE FEDERAL CHARGES. THE PLEA AGREEMENT IS
IMPORTANT HERE. THE PLEA AGREEMENT SAYS
THERE ARE CERTAIN THINGS HE STILL COULD RAISE LATER. HE COULD RAISE A CLAIM
OF INEFFECTIVE COUNSEL, HE’D BE ABLE TO RAISE A CLAIM BASED
ON NEWLY DISCOVERED EVIDENCE. IT ALSO SAID THERE ARE CERTAIN
THINGS HE COULDN’T RAISE; FOR EXAMPLE, HE COULDN’T RAISE
THE STATUTE OF LIMITATIONS. HE COULDN’T BRING A COLLATERAL
ATTACK ON THE CONVICTION. THE PLEA AGREEMENT SAID NOTHING,
THOUGH, ABOUT WHETHER HE COULD BRING AN APPEAL BASED
ON CONSTITUTIONAL ARGUMENTS. HE BROUGHT SUCH AN APPEAL
TO THE D.C. CIRCUIT. THE D.C. CIRCUIT SAID, THOUGH,
THAT HE HAD WAIVED THE ABILITY TO APPEAL ON THE CONSTITUTIONAL
ISSUES BY PLEADING GUILTY. THE UNITED STATES SUPREME COURT, IN A 6-3 DECISION, REVERSED
THE D.C. CIRCUIT. JUSTICE BREYER WROTE
FOR THE COURT AND SAID THAT THE GUILTY PLEA HERE
DID NOT PRECLUDE THE ABILITY TO BRING AN APPEAL BASED ON
THE CONSTITUTIONAL CHALLENGES– THE SECOND AMENDMENT
AND DUE PROCESS. AND WHAT WAS
THE MAJORITY’S REASONING? IN PART, JUSTICE BREYER RELIED
ON PRIOR PRECEDENTS THAT A GUILTY PLEA DOESN’T
PRECLUDE THE ABILITY TO CHALLENGE
CONSTITUTIONAL ISSUES, BUT THE PLEA AGREEMENT
IS SILENT ABOUT IT. NOW, THE GOVERNMENT
MADE THE ARGUMENT THAT FEDERAL RULE
OF CRIMINAL PROCEDURE 1182 WAS THE SOLE ABILITY
TO BRING SUCH A CHALLENGE, BUT JUSTICE BREYER SAID THERE’S
NOTHING IN THE TEXT THAT RULED THAT SAYS IT’S THE SOLE ABILITY
TO BRING SUCH AN APPEAL. LEVENSON: BUT, FOLKS,
THIS IS WHERE IT BECOMES MESSY BECAUSE THE DECISION DOES NOT
ESTABLISH A PER SE RULE THAT ALL CONSTITUTIONAL CLAIMS
CAN BE BROUGHT AFTER THERE’S A GUILTY PLEA. GUILTY PLEAS DO WAIVE
SOME CONSTITUTIONAL RIGHTS, SUCH AS FOURTH-AMENDMENT
CHALLENGES, CHALLENGES TO THE GRAND JURY
PROCEEDINGS. IN FACT, A DEFENDANT MAY WAIVE
THE RIGHT OF APPEAL IN A PLEA AGREEMENT,
SO THE COURT ENDS UP AND SAYS WE LOOK TO 5 CATEGORIES
OF WHAT CAN BE ARGUED ON APPEAL AFTER A GUILTY PLEA, AND I THINK WE DO HAVE THOSE
UP ON THE SCREEN. ONE, CERTAINLY… TWO… 3… 4… AND 5… SO RIGHT NOW, WHEN WE LOOK
AT THE COURT’S DECISION HERE AND ITS PRECEDENT, IT LOOKS LIKE
THE CLEAREST GROUNDS ARE THAT… …DOUBLE JEOPARDY, AND FINALLY
VINDICTIVE PROSECUTION. CHANCE: HEH! I THINK
IT’S WORTH NOTING HERE THAT THE DISSENT
CALLED THIS A MUDDLE AND THAT IT WOULD LIMIT APPEALS
AFTER GUILTY PLEAS TO JURISDICTIONAL CLAIMS. OK, NOW HERE IS JOHN COOKE
WITH SOME FINAL WORDS. THAT’S OUR PROGRAM
FOR THIS YEAR. WE HOPE YOU FOUND IT
INTERESTING AND USEFUL. PLEASE TAKE THE TIME TO FILL OUT
THE ONLINE EVALUATION FORM THAT YOU’LL FIND
ON THE SAME PAGE AS THE WRITTEN MATERIALS
AT OUR WEB SITE. IT’S THE ONLY WAY FOR US TO KNOW
HOW WE CAN IMPROVE THIS PROGRAM AND MAKE IT EVEN MORE USEFUL FOR
YOU IN YOUR WORK FOR THE COURTS. I THANK THE FACULTY FOR HELPING
TO EXPLAIN THESE DECISIONS AND EVERYONE AT THE FEDERAL
JUDICIAL CENTER RESPONSIBLE FOR PRODUCING THIS PROGRAM. I’M JOHN COOKE.
THANK YOU FOR WATCHING.

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