For Tuesday, September 16

Monday audio. Panel # 2 papers due tomorrow. Constitution Week panels tomorrow and Wednesday; both at 12:30 in RDB 1000. We will look for some make-up times for 9:30, TBD.

Continue with Finality. Can you explain how COD has broken out, along the lines of the three elements of Cohen? Consider:

   X, the defendant in a criminal prosecution, challenges (as a Fifth Amendment violation) a court policy of keeping pre-trial detainees in five-point shackles during non-jury court proceedings, regardless of whether the detainee poses a security threat; the court holds that the shackling is permissible. Can X appeal under COD? How should we understand the decision for purposes of the third prong of Cohen?

Move to Interlocutory Review, including all the assigned statutes. How do all the various mechanisms fit together as a whole?

New Podcast of interest

Battle of the Branches, featuring interviews and discussions with faculty members at University of Chicago. The first, second, and final episodes are most relevant to this class.

Important Updates to Class

1) No make-up next Monday (September 15). About half the class has a conflict, so it makes no sense to hold the session. Normal class both days next week. Make-ups TBD.

2) During our shadow-docket discussion, I forgot to mention the connection between the increase in stay petitions to SCOTUS and the increase in cert before judgment--the Court responds to a petition for a stay pending review to the court of appeals by treating it as (and granting) a petition for cert before judgment and taking up the entire case. See, for example, United States v. Texas. This also came up in Trump v. Boyle. The Court granted a stay in a firing case, based on a prior order in a firing case; Justice Kavanaugh concurred to argue the Court should have granted cert before judgment. Note that Kavanaugh's concurrence in CASA requires additional cert-before-judgment, because he insists that the Court must resolve the "interim" merits earlier in cases.

3) Shane asked for examples of the Court making a stay decision, then coming out the other way. The most prominent example of the Court staying the injunction but then affirming is Allen v. Milligan (a redistricting case from Alabama, on mandatory review of a 3-judge district court). Two examples of the Court refusing to stay the injunction but eventually reversing on the merits--Biden v. Texas and US v. Texas.

4) Point # 3 somewhat relates to another piece of the shadow docket controversy--whether the Court should write something to explain its stay decisions. In Labrador v. Poe and in CASA, Justice Kavanaugh wrote concurrences to justify not writing--the concern that writing "locks" the Court into a position on the merits.

5) The Court granted the latest cert before judgment today, in the tariffs case (actually two consolidated cases). This involves consolidation of cases at different stages--plaintiffs sought cert before judgment in one case while the government sought cert from a Federal Circuit decision in the other.

For Monday September 15 (Double Session)

Tuesday audio. SCOTUS Papers due at beginning of class next Tuesday. Double session on Monday, so we should get through all of Finality and COD; we will take a break and return at 12:30.

Additional questions: Why have the Federal Circuit and does it make sense as a specialty court? Review the rules and statutes governing the process for appeal and what parties must do. How does a party appeal prior non-final orders once a judgment is final?

Constitution Day Event: The Substance and Procedure of Birthright Citizenship

We have several events next week for Constitution Day.

One is The Substance and Procedure of Birthright Citizenship, a discussion of CASA and the citizenship E.O., featuring Prof. Roman and me, sponsored by the College of Law and several student groups.

12:30 p.m. next Tuesday, September 9 in RDB 1000 (Large Courtroom).

Flier here. 

For Tuesday, September 9

Monday audio. Panel # 3 should be ready to go, but just prep Structure; we won't get beyond that.

We will finish State Court Review, then move to Review of Federal Courts (including these materials). We will begin with the other two possibilities in Cox and how they implicate federal policy concerns. Then review the pages in Moore; consider why Category # 2 is wrong and whether # 4 would have been a better fit.

We hopefully will get to Courts of Appeals: Structure towards the end of class.

Additional reading for Monday/Tuesday

We will discuss the "shadow docket" (Chemerinsky pp. 673-74) as part of SCOTUS's review of federal courts. This is an increasingly controversial subject, especially in the first months of the current administration.

In addition to that reading, look at NIH v. APHA, especially Justice Gorsuch's concurring opinion, and pp. 23-31 (especially FN 9) of Harvard v. HHS. 

Two more things. First, read this NBC New story based on interviews with ten lower-court judges. Beyond what this tells us about the emergency docket, consider the problems or benefits of rhetoric such as Justice Gorsuch uses and the response from Judge Burroughs and those interviewed for the NBC story. How does the nature of the emergency docket create tension among the courts and with the executive and public?

Second, this NY Times story (H/T: Sara) on a district judge "apologizing" for failing to treat an emergency order as binding precedent. I put apologizing in danger quotation marks because it is not clear he was apologizing as much as explaining why he approached the cases as he did. Read this in connection with Harvard FN 9, which reflects a different response to Justice Gorsuch.

 

The Next Original Jurisdiction Case?

Prof. Steve Vladeck (One First) discusses the Administration's plan to send Texas National Guard troops (unfederalized, so under the command of the Texas government) to Chicago and the potential statutory and constitutional problems with this plan. He also discusses how Illinois might challenge this in court, including by suing Texas in an original jurisdiction action in SCOTUS or by suing the Secretary of Defense in district court. Consider that there should be two automatic votes (Thomas and Alito) to allow the action.

Although he does not discuss it, there is a third option--sue the U.S. in SCOTUS on original jurisdiction. The case arguably raises some of the sovereignty and speed concerns that justified original jurisdiction in South Carolina v. Katzenbach.

For Monday, September 8

Tuesday audio.

Prep the rest of Review of State Courts and then Review of Federal Courts of Appeals. Review the Vladeck piece, which provides a nice history of cert before judgment. What does it mean for a case to be "in" the court of appeals for § 1254 purposes.

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?

I hope to begin Panel III by sometime Tuesday.