For Tuesday

Tuesday audio. No class Monday; happy Labor Day and enjoy the long weekend. SCOTUS Reaction Papers due at the beginning of class.

A final word on the shadow docket and, to a lesser extent, cert-before-judgment. Here is the question: How early in cases should SCOTUS get involved in cases, routinely or in special cases? Stated differently, how important is the three-step litigation process, in which three courts have a full opportunity to decide the issues. Critics of the expansion of the shadow docket and CBJ complain that the Court is taking the power to be the lone decsionmaker (or leaving the district court only a preliminary one). One scholar described this as "Supreme Court Imperialism." Another suggested that the Court was acting not as a "court of last resort" but as a "court of first (and only) resort."

Read all of Courts of Appeals--Finality and Interlocutory. Why the finality requirement in § 1291--what are the policies, benefits, and drawbacks to that? What are the elements of the collateral order doctrine and do they make sense? What is the difference between a right not to stand trial and a right against liability, does the distinction make sense, and how does it affect COD? How does a party seek review of non-final/non-appealable orders? What are the various mechanisms for non-final review and how do they interact? Consider Donald Trump's statement that he plans to appeal the district court order setting a trial date--how could that be appealed, if at all?

For Tuesday

Monday audio. Monday audio reposted.

We finish with § 1257(a) and the third possibility under Cox Broadcasting.

In addition, read pp. 8-11 in Moore v. Harper. The Court reject the independent state legislature doctrine--the theory that the U.S. Constitution grants state legislatures exclusive and unilateral control over redistricing and selector of presidential elections, unchecked by the state executive or state courts. The case was complicated because the North Carolina Supreme Court first reached the merits and rejected ISL, then (while the case was pending in SCOTUS and after the court's political alignment changed) reconsidered and held that political gerrymandering claims are not justiciable under the state constitution. SCOTUS thus had to consider whether the initial judgment rejecting ISL was final for § 1257. Was the Court right in finding finality? Did it rely on the correct Cox category?

Then move to Review of Federal Courts of Appeals. Add Supreme Court Rule 11, which deals with Cert before judgment; the Vladeck piece provides a nice history of this practice. What does it mean for a case to be "in" the court of appeals for § 1254?

I hope to move to Panel 3 and Courts of Appeals for the end of the class. For tomorrow, prep Structure and Finality/Collateral Order. Note how the courts of appeals are organized and the slightly different status and longevity for judges, as shown in the rules and statutes.

Judicial Supremacy v. Departmentalism

This post from Prof. Steve Vladeck (Texas) discusses judicial supremacy and the language of Cooper v. Aaron. (please do not share the link outside class). He elaborates on stuff we touched on in class-the difference between the judgment in Brown (binding only on the parties and, something we did not mention, enforceable by contempt of court if ignored) and the opinion in Brown and how various officials react.

Several points worth highlighting:

    1) Judicial supremacy depends on public perception and attitude. If the public regards SCOTUS opinions as pronouncing the controlling meaning of the Constitution, it creates political pressure for other actors to fall in line. Eisenhower sent in the 101st Airborne--importantly, to enforce not Brown but the district court opinion in a Little Rock lawsuit applying Brown--because national public pressure pushed him in that direction.

    2) The President plays a unique role here. If the judgment involves non-federal law (as in Brown and Cooper), the President's role is to enforce that judgment, raising the question of what a President can and should do if he disagrees with that judgment. If the judgment involved federal law (e.g., the injunction prohibiting enforcement of the student-loan relief plan), the President (or some other executive official subject to presidential control) is both the party bound by the injunction and the person who enforces it.

    3) The line between judicial supremacy and judicial departmentalism ultimately turns on how much leeway we give political actors who were not parties to the first case to ignore precedent until they get sued and subject to a court order. In other words, could Little Rock officials--adhering to their oaths of office and public obligation--continue enforcing current law and ignoring Brown, until sued and subject to a new judgment against them? Vladeck says no; a departmentalist would say yes.

This applies not only to how similarly situated government actors respond to precedent (i.e., how Little Rock officials responded to precedent created by a judgment in a case involving Topeka officials). It also applies to officials responding to a judgment against them. To see how much play there is in the joints and how complex this is, consider Allen v. Milligan from last term.

    SCOTUS held that Alabama's congressional map--containing one majority-Black district and one district that was about 39 % Black--violated the Voting Rights Act. SCOTUS affirmed an injunction requiring Alabama to draw a map that contained a second district that was majority or a "substantial minority" Black. Alabama enacted a new map with one majority-Black district and one district that is 41 % Black. Did they ignore the court order? Or did they attempt to comply and now we have a new question--to be litigated--of whether 41% constitutes a "substantial minority"?

Intro Reaction Papers

Here, here, here, and here.

For Monday

Tuesday audio.

We continue with Supreme Court Review of state courts. How has the court limited procedural rules as independent-and-adequate and why (note the timing of many of these cases)? What other state law can be I&A? What is an "advisory opinion" and how does the general prohibition on them explain independent-and-adequate? What are the different approaches to cases in which it is difficult to determine whether a decision is based on federal or state law and why did the Court settle on an approach in Long? (See the Pfander discussion of Long). What are the benefits and drawbacks to the Long approach? What does finality mean at its core and what other understandings of finality has the Court adopted--what are their details and why?

Move to Review of Federal Court of Appeals, looking closely at §§ 1253 and 1254; skip Camreta. What does it mean for a case to be "in" the court of appeals for § 1254 purposes? What is certiorari before judgment and when does the Court exercise that power (see the Vladeck essay from SCOTUSBlog).

I expect/hope to finish SCOTUS on Tuesday, depending on how far we get on Monday, so panel 3 (Courts of Appeals) should be ready to go.

For Tuesday (Updated)

Monday audio.

Continue with Original Jurisdiction.Why make some original-jurisdiction cases exclusive? What is the source of SCOTUS's original jurisdiction? What is the argument for and against discretionary original jurisdiction?

Then move to SCOTUS Review of State Courts, covering the first three sections (Background; Power and Independent & Adequate); review the chart of the structure of the judiciary and the chart of the Florida judiciary. Compare and contrast the pre-1988 version of § 1257 (on the Blog) with the current version. What is the source of SCOTUS's appellate jurisdiction? Can federal courts review state court's constitutional decisions and why? What can SCOTUS review from a state court and why? What are the different ways of dealing with mixed federal/state cases?

Argument Cases

List of oral argument cases.

We have 30 in the class and 15 cases; every case has two advocates and two judges. At some point in the semester, you must agree with your partner as to who will represent which side (per SCOTUS practice, the first-listed party is petitioner, the loser below) and who will serve as chief justice. 

Fifteen cases means we can do this in one long (8-ish-hour) day of arguments, including a break for lunch.

I assigned all roles on all cases at random, ensuring only that no one argues and judges consecutive cases.

Panels (Updated and moved to top)

Updated and final panel roster. Most everyone stayed the same; a few (randomly selected) people moved. The panel sizes are evenly balanced.

Each student is assigned to three (3) panels. Each panel will be "on" for at least 1 1/2 class sessions; some are longer and some are shorter. They are randomly assigned, although longer panels have more people. 

The group assigned to Introduction must be ready on the first day of class (apologies, but you have time to prepare). Please sit on the side of the room closest to the front door.

This schedule is based on enrollment as of August 1. If enrollment changes, panels may change.

Reaction papers are tied to your panel; each paper is due one week after we finish a panel.

Panels after the jump.

Vladeck, History of Certiorari

Returning to the beginning of the semester, here is a good discussion of the 1925 law that made most of SCOTUS's jurisdiction discretionary and that, unintentionally, ushered in the practice of "questions presented."

For Monday

Tuesday audio. Panel I reax papers due on Tuesday at the beginning of class. Please follow the guidelines and instructions on the assessment information. Also, here is an updated and corrected syllabus.

We continue with Supreme Court. Review the three Court-reform proposals (even Court, Regulation of Appointments Act, and lottery); be ready to discuss the benefits, drawbacks, and constitutional concerns for each. What textual objections can there be to each.

On the textual point, think about the meaning of four constitutional phrases and how they affect these proposals. We have discussed two of them: "the judicial power" in Art. III § 1 and Congress's necessary-and-proper power. With respect to SCOTUS in particular, we need to think about two more: "one Supreme Court" in Art. III § 1 and "with such exceptions and under such regulations" as to SCOTUS's appellate jurisdiction in Art. III § 2 cl.2. So think about all of these, what they might mean, and how they might affect the constitutional validity of reform proposals. Also, thinking about whether Segall's even-Court proposal violates the President's appointment power under Art. II § 2.

Then move to Original Jurisdiction. What is the difference between original and appellate jurisdiction? What is the difference between exclusive and concurrent jurisdiction? What is within SCOTUS's original jurisdiction and what is within its appellate jurisdiction? What is the source or origin of SCOTUS's jurisdiction? Why put these cases in SCOTUS's original jurisdiction? Why make some of SCOTUS' original jurisdiction exclusive and some concurrent? Concurrent with whom? Why was § 25 of the 1789 invalid in Marbury?

What is the difference between mandatory and discretionary jurisdiction? How has SCOTUS evolved on that, within its appellate jurisdiction? How does the move to virtually all discretionary jurisdiction undermine the rationale for judicial review? What guides the Court in deciding whether to hear a case? Is there a difference between hearing "case or controversies" and hearing "questions?" Is SCOTUS's original jurisdiction mandatory or concurrent? Why? And what are the arguments for and against that? This short essay by Prof. Steve Vladeck offers a nice overview of the evolution of the Court's jurisdiction, on top of the discussion in Chemerinsky.

For Tuesday

Monday audio. Class begins tomorrow at 10:45. I will answer questions about the syllabus and course assignments in the first couple minutes of class. Please check the updated panel assignments. Panel # 2 is on tomorrow; sit on the far side of the room.

We finish Introduction. Why should the power of review rest with courts? What is "judicial supremacy" and does the power of judicial review entail that? What is "departmentalism?" What is the best way of understanding the role of different branches in constitutional interpretation? What is "judicial activism" and why should you never again use that phrase in this class?

Also, apropos of today's class: This essay, from a historian at SMU, discusses the impeachment of Justice Samuel Chase. It tells the full story of the impeachment and trial; how the case has become precedent limiting impeachment to criminal activity rejecting the power to judges for bad or disagreeable decisions on the bench; and how we might reconsider that limited conception of impeachment. Note that in focusing on the "high crimes and misdemeanors" language of Art. II, the author ignores the "good behaviour" language of Art. III. Here is the list of the 14 impeached judges, 8 of whom have been removed.

We then move to Supreme Court, covering Structure. Consider how the Court's structure has evolved historically and the validity of proposals to alter it. Review the various proposals for changing the Court and think about whether they are valid and whether they are a good idea. Also, consider a proposal for Supreme Court panels in which three justices hear each case rather than the full Court. One correction--pp. 124-25 in Chemerinsky should be 725-28.