Congressional Control over SCOTUS

From Prof. Steve Vladeck on Belva Lockwood, the first woman admitted to the SCOTUS Bar. It includes an interesting piece for our purposes: When the Chief Justice refused her admission, Congress enacted a law requiring admission of anyone who meets certain requirements. No one on the Court believed the law problematic--the Chief admitted Lockwood two weeks after Pres. Hayes signed the "Lockwood Bill."

Fed Courts Never Rests (Not Even During Thanksgiving)

A district judge abstained under Younger from an action by a member of the North Carolina Supreme Court to stop an investigation by the state Judicial Standards Commission. The court spent some time trying to distinguish the second and third Younger categories; the rest was pretty straightforward.

Abstention II Reax Papers

Here, here, here, here, here, here, and here.

Final Class

Monday audio.

All previous graded papers will be available outside my office this afternoon.

Abstention II papers will be available next week.

Congressional Control papers due when you come for arguments on December 12.

We begin promptly at 9:30 on Tuesday, December 12. Please refer to the schedule and standing order on procedure for details. Lunch will be provided. Please email if you have dietary needs or restrictions.

Have a great holiday and good luck on finals.

New proposal on Cameras

A bill proposed earlier this year. Prep this in conjunction with the bill posted in Additional Materials.

Interesting Standing Puzzle

The UF chapter of Students for Justice in Palestine, represented by the ACLU, has sued Gov. DeSantis, State University Chancellor Raymond Rodrigues (the head of all public universities), and the president and trustees of UF and moved for a preliminary injunction. As the complaint allegees, Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint does not allege that UF has, at this point, done anything in response to that order.

Assume (as seems likely) any move to deactivate UF SJP would violate the First Amendment. Anyone see a standing problem? Does anyone think the court might recognize and take that seriously? Anyone wanting to analyze can email me and I will post here.

Abstention I Papers

Here, here, here, here, here, here, here, here, here, and here.

Arguments

After the jump are individual links to arguments from Fed Courts in 2019 (the last time I did them in-person); you probably will need to log in. Here are the arguments from Civil Rights last spring; same format.

Also, here is the link for Oyez; under cases, you can click on any case and find the link for the argument. You also can find arguments on SCOTUS's websit (supremecourt.gov).

In saying to avoid moot court niceties, I mean things like giving your name, saying who you represent, etc. Obviously, you should have a roadmap or a theme to your argument--that's what makes it a legal argument. You have a minute uninterrupted to give your arguments--don't waste it.

For Final Class

Tuesday audio. Abstention II papers due Monday. Please note that the site for SPOTS evaluations is now open; please fill them out--we do welcome the feedback.

We continue with Plaut and the new separation of powers principle the Court announced. Can that square with FRCP 60(b)?

We will spend the rest of the class considering different examples of Congress regulating the Court and whether those impermissibly invade the "judicial power." Read the scholarly debates over jurisdiction stripping; although we will not discuss this, it informs much of our conversation. In addition to the Chief's Letter and the Cameras in the Courtroom Act (both on the blog), consider the constitutional validity of the following:

    • Believing opinions are too long and thus impenetrable for ordinary citizens, Congress enacts a law limiting majority opinions to 7500 words, dissents to 5000 words, and concurrences to 2500 words.

    • In resolving a case, the court shall:

        • Issue one per curiam (for the Court, no named author) opinion representing the judgment of the Court and the opinion of a majority. It shall not indicate vote counts.

        • No justice shall write a separate opinion.

        • If a majority of the Court cannot agree on a rationale for a judgment, the Court shall issue an order summarily affirming or reversing, with no opinion and not establishing precedent.

    • Congress enacts a code of ethics binding on SCOTUS.

    • Congress refuses to appropriate money for the courts in a given year, other than to pay the salaries of all Article III judges.

For all of these, consider whether the answer as to the permissibility differs for SCOTUS than for lower courts. If so, what makes SCOTUS different and does that difference justify or require different treatment on these matters?

For Next Class

Monday audio. Abstention II papers due next Monday.

We continue with Congress Decides a Case. Can Congress tell the courts how to interpret statutes, including by requiring or prohibiting, e.g., resort to canons of construction or use of legislative history? What can Congress do or not due under Klein, as we now understand it? What result and why in Robertson, Bank Markazi, and Patchak? What about the Protection of Lawful Commerce in Arms Act? What about § 324 of the 2023 debt ceiling act (begins on p.39)? What about the Congressional Accountability for Judicial Activism Act of 2005 (on the Additional Materials) post? How does judicial departmentalism affect how we understand that statute? What is the law and principle from Plaut and how does it relate to and differ from Klein? How does the law in Plaut differ from FRCP 60(b)'s grounds for granting relief from a judgment?

Puerto Rico and the 11th Amendment

A fun potentially open question: Is Puerto Rico sovereign for 11th Amendment purposes, as applied to IP claims? Longstanding precedent in the First Circuit (which covers Puerto Rico) says yes and the district court must adhere to that. But plaintiffs--the descendants of Puerto Rican baseball legend Roberto Clemente--seem to be trying to set-up a SCOTUS challenge on the issue.

Trump Appeals Gag Order

For those of you following the January 6 prosecution of Donald Trump: Trump has appealed a gag order the district judge imposed to prevent Trump from making certain public statements, especially about witnesses. The jurisdiction statement is on pp. 2-6. He argues the order is appealable under the collateral order doctrine (consider why) and as the equivalent of an injunction under § 1292(a).

Younger in action

An interesting Younger case because it crosses state lines and has some of the timing issues we discussed.

Yelp posts notices on reviews of crisis pregnancy centers, stating that these centers do not provide abortion services. The Texas AG sent Yelp a letter that those notices violate Texas deceptive-practice laws and threatening an enforcement action. Yelp sued in California federal court, alleging that enforcement violates the First Amendment. The next day, Texas filed its state-law action, then moved to dismiss the federal action on Younger grounds (and for lack of personal jurisdiction).

Mootness Papers

Here, here, here, here, here, here, here, and here.

Federal Courts always ongoing

More on settlement and mootness

In our discuss of mootness and Campbell-Ewald, we considered how settlements and settlement offers affect mootness (or should not be deemed to affect mootness.

In this Third Circuit case, a member of a public-employee union sued to recover damages covering past dues paid plus interest, following the Supreme Court holding that compelled union payments violate the First Amendment. The union sent the plaintiff a check in the amount of dues paid plus interest; although the plaintiff did not cash the check, the union argued the offer mooted the case. The Third Circuit rejected the argument, because there was no agreement and the plaintiff had suffered a past injury (subsidizing the union) for which she sought a traditional damages remedy.

More on finality

This is Eleventh Circuit case should have been easy. But it shows you how courts have to quickly address things when the parties fail to pay attention and do something obviously wrong. District court granted summary judgment on the plaintiff's claims but did not address defendant's counterclaims; plaintiff then appealed. The court of appeals dismissed for lack of jurisdiction because the decision on the claims was not final and plaintiff had not obtained an FRCP 54(b) certification. The defendants tried something cute--asking the court to retain jurisdiction and stay the appeal but do a limited remand so the district court can address the counterclaims. The court of appeals refused; lacking jurisdiction, it could do nothing other than dismiss for lack of jurisdiction.

For Next Class

Moot Court semis at 4 p.m. tomorrow in RDB 1000. Judicial Lecture with Justice Couriel at 12:30 p.m. next Thursday, November 16 in RDB 1000. Moot Court finals at 6 p.m. next Thursday, November 16 in RDB 1000. Please note we want to have a small group of students have lunch with Justice Couriel following the lecture; if you are interested, please let me know.

Statutory Abstention/Pullman papers due next Monday.

We will continue with Younger/Colorado/Burford/Comity; those papers (which can cover any doctrines discussed while you were on panel) likely will be due on the final day of class. What are the factors to balance for international comity abstention.

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction and why? What different approaches might the court take?

Move Congressional Control: When Does Congress Decide a Case. In addition, look at § 324 of the 2023 debt ceiling bill (p.39 of document) and Title II of the Constitution Restoration Act. What proposition(s) does Klein stand for? Consider whether there are Klein problems in Bank Markazi, Patchak, the Protection of Lawful Arms in Commerce Act, and the two provisions above? What if Title II of the Constitution Restoration Act applied to statutory claims? Was there a Klein problem in Plaut? What is the distinct constitutional principle the Court adopted there? What makes a law retroactive and what limits are there on retroactivity?

For Next Class

I forgot to turn the audio on--apologies. Pullman/Statutory is done; papers due next Monday--you can write about Pullman. We will have one final word about Pullman, going to Alex's question.

We then turn to the remaining Abstention doctrines--Younger, Colorado, International Comity, and Burford.

We will move to the next panel and the judge-made abstention doctrines (Colorado, Burford, and international comity). What are the elements of each of these? What are the similarities between Colorado River and international comity abstention? What factors and principles do courts balance as to each?

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction?

Read the pfander section on Younger (pp. 371-81). Consider the following cases:

    1) Andrew Warren, the Hillsborough County State Attorney, was suspended from office by Gov. DeSantis, a first step under state law to removing him from office under the governor's authority to remove certain officials for "misfeasance, neglect of duty, or incompetence." Warren brings a § 1983/EpY action against DeSantis, alleging the suspension violates the First Amendment. He also believes that nothing he did constitutes "misfeasance, neglect of duty, or incompetence." Suspension triggers a Senate trial, in which the Senate will review the Governor's decision and either reinstate Warren or remove him from office.

    2) Harris is prosecuted in state court under an anti-Communist law for engaging in the constitutionally protected speech of advocating the overthrow of capitalism. Harris sues Younger (the district attorney) in federal court, alleging a First Amendment violation and seeking to enjoin Younger from enforcing the law.

    3) After his victory in the Supreme Court, Jack Phillips of Masterpiece Cakeshop declines a request to bake a cake celebrating a customer's male-to-female transition. The customer complains to the state Civil Rights Commission, which commences a proceeding under the state public accommodations law. Phillips sues the the head of the Commission in federal court, alleging the new proceeding violates the First Amendment (as determined by SCOTUS in his prior case) and seeking to enjoin it.

    4) 3 companies--Tim-Rob, M&L, and Salem--operate nude dancing establishments in a town. The town passes an ordinance prohibiting nude dancing. The companies sue, claiming the ordinance violates the First Amendment; they seek a TRO (which is denied), DJ, and Preliminary injunction. The day after filing, M&L resumes nude dancing and is ticketed; Salem and Tim-Rob comply with the ordinance. The city moves for Younger abstention.

What is the connection between Younger and § 2283? How does the requirement that the state proceeding be "pending" affect abstention?

Ex parte Young and the responsible executive officer

One feature of standing or sovereign immunity in Ex parte Young actions is identifying and suing the responsible executive officer. Plaintiff must show that the named defendant has the particular legal duty to enforce the particular challenged legal provision. As we said in class, this is easy for federal law, because the chain of enforcement authority runs through agency and cabinet heads and to the president (in whom the executive power is "vested" under Art. II). It is harder at the state level, where executive power is divided among state officers and between state and local government.

The Fifth Circuit has been especially strict on this, as indicated in this case holding that plaintiffs cannot sue the governor over an executive order the governor issued, because the EO ordered the state Department of Public Safety to enforce it.