Presidential Comments About Pending SCOTUS Decisions

At VC, Professor Adler has a useful post discussing a forthcoming study reporting that President Obama has commented on pending SCOTUS decisions with more frequency and more depth than previous presidents. I agree with Adler that the President's practice is a poor one, since it lends the impression that the Court is not a neutral body and is subject to external influence. Adler distinguishes, as would I, between comments made during deliberations (inappropriate) and comments made before argument and during the briefing (appropriate). 

I would add that the reason for this President's increased rhetoric concerning pending cases is not likely merely the fact that he was a U.Chicago law professor, but also because the Supreme Court has now heard three cases threatening the President's signature legislative achievement: Obamacare. 

We all remember the first go-round, where the Court voted 5-4 to uphold the individual mandate on tax grounds. Then, there was rampant speculation--apparently confirmed from within the Court itself--that the Chief Justice had changed his conference vote, where he had initially sided with the dissenters to strike down the law. That was around the time the President began ma

Then there the RFRA challenge brought by the private, religious employers. And now Obamacare is again in serious jeopardy with this year's challenge to the federal subsidy provisions. 

The President campaigned vigorously in the press and public to get the law passed; to promote the law and the use of the healthcare exchanges; and later to defend the law from challenges in the Court. So far as I am aware, other presidents have not faced similar efforts by litigants to strike down their signature legislative accomplishments while the president was in office. 

Kansas Governor OK's Remarkable Invasion Of Judicial Branch

In an apparent act of retaliation against the Kansas Supreme Court for striking down an earlier law dealing with education, the Kansas legislature and Governor Sam Brownback have passed and signed a law funding the judicial branch but simultaneously threatening to defund the branch if it strikes down the funding law. And there is reason to think the courts might: The law purports to vest the authority to select chief district judges in the State's district judges themselves, not in the Kansas Supreme Court. The State constitution gives the supreme court "general administrative authority over all courts in this state."

According to NYT, critics of the law accuse the governor of attempting "to stack the district courts with judges who may be more favorable to his policies."

A threat to defund the entire judicial branch sounds like an unrealistic threat to me, but it's there nonetheless. 

Coalition for the Protection of Marriage Accuses 9th Circuit of "Panel-Packing"

In a cert petition filed on April 9, the anti-same-sex marriage group Coalition for the Protection of Marriage accuses the Ninth Circuit of "panel-packing" in order to tip the scales in favor of challengers of Nevada's prohibition on the recognition of same-sex marriage. The coalition defines "panel-packing" as "assigning a case to a three-judge panel of particular judges with the intent of influencing the outcome." Pet. at 27. 

Here are the facts the Coalition alleges to substantiate its panel-packing challenge (Pet. at 29):

From January 1, 2010, to October 13, 2014, the Ninth Circuit had assigned to merits panels eleven cases involving the intersection of federal constitutional rights and sexual orientation law (the “Relevant Cases”), as were listed and described in a table included among the exhibits to the Petition (Dkt. No. 274-2 at 6-10). Judge Berzon was on five of those panels. Dkt. No. 274-2 at p. 6. Judge Reinhardt had the next highest number, with four panel assignments. Id. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Id. Seventeen judges, including District Judge Bennett, received one assignment. Id. Eighteen of the judges with active status during any part of the relevant time period received none. 

A serious statistical discrepancy indeed! 

(Because it will no doubt need saying, the previous line was uttered sarcastically. The Coalition does cite,however, a statistician who claims the odds of these panel make-ups is 441-to-1. See Pet. App. at 191a.)

The Coalition goes on to argue that "Careful statistical analysis indicates a high likelihood that the number of Relevant cases assigned to Judges Reinhardt and Berzon, including this and the Hawaii and Idaho marriage cases (which the petition treated as one for these purposes), did not result from a neutral judge assignment process." (Pet. at 29). It also cites the wisdom of the "reasonable person," who simply wouldn't believe that gay-marriage friendly judges could have been so fortunate to find themselves on 5 panels hearing gay-marriage cases (Pet. at 31):

The appearance of unfairness is not a close question here. Even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of a circuit’s eleven Relevant Cases involving a particular issue, and when both that Judge and another Judge with respect to whom assignment disparities also exist, are assigned to the most momentous of those cases, here involving same-sex marriage. That sense will deepen on realizing that eighteen of the judges with active status during any part of the relevant time period were assigned to none of the eleven Relevant Cases. That sense will deepen even further because of the appearance, arising from widely shared public perceptions, that Judges Reinhardt and Berzon’s presence on the panel favored one side over the other.

It's not the first time the Coalition has raised this argument. It did so in its petition for rehearing en banc back in 2014. Chief Judge Kozinski, for his part, has denied that any type of panel-packing occurred, as did the Ninth Circuit's top administrator. 

Remarkably, the Coalition fails to cite to a recent law review article by respected professors Adam Chilton (Chicago) and Marin Levy (Duke), Challenging the Randomness of Panel Assignments in the Federal Courts of Appeals. The article was quite math-y and involved graphs. In short, it was well beyond my ken. But I ferreted out one of the relevant conclusions: "there is evidence that the ideological balance of panels is non-random in four circuits: the D.C. Circuit, the Second Circuit, the Eight Circuit, and the Ninth Circuit." At 31. 

Either way, the Coalition's position here sounds like sour grapes.

An Entertaining Kagan Footnote On "Acre-Foot of Water"

In today's decision Kansas v. Nebraska, the Court resolved a water rights dispute. I enjoyed footnote two of the opinion. You can just imagine Kagan reading this paragraph aloud:

"An acre-foot of water is pretty much what it sounds like. If you took an acre of land and covered it evenly with water one foot deep, you would have an acre-foot of water." 

REBLOG: Steven Klepper On Fourth Circuit "Soft Precedent"

Here's a great blog post from Steven Klepper, the editor of Maryland Appellate Blog. Klepper discusses the various reasons underlying the Fourth Circuit's unusual practice of designating lengthy, divided opinions as "unpublished." His conclusion? The court designates some divided opinions as unpublished to avoid creating binding precedent in the circuit, thus giving other panels an opportunity to differ on the same issue without having to go en banc. 

Same-Sex Divorce: Stufflebeam Appeal Decided

Due to the holiday, I neglected to bring you news of the Third District Court of Appeal's decision resolving the Oliver v. Stufflebeam case, which I've previously discussed. The question in Stufflebeam was whether a Florida trial court could dissolve the out-of-state same sex union of two women who were validly married in Iowa. 

On the eve of Christmas, the court held "no"—Section 741.212, which provides that same sex marriages "are not recognized for any purpose in this state," barred the divorce. 

The court began by noting that the parties had formulated their appeal as a question of statutory interpretation, not one of the constitutional validity of the statute. Thus, the parties had argued that Section 741.212 should be read to permit same-sex divorce, since, in their view, a trial court was not required to "recognize" a marriage in order to dissolve it.

From there, it was a simple matter of holding that "Where there is no valid marriage there can be no divorce." 

The court did note, however, that its decision did not prejudice the rights of the parties to seek an annulment in the trial court. An annulment, unlike a divorce, does not necessarily "recognize" a marriage. The court noted that "a court need not recognize as valid a marriage which is valid in the jurisdiction where consummated where recognition would affront the public policy of the forum state."

It’s interesting to note the court’s dismissal of the parties’ statutory interpretation argument that the court should read the statute in their favor—so as not to forbid same-sex divorce—in order to avoid constitutional concerns. Of that argument, the court wrote:

This position is legally puzzling. It would be a disingenuous court indeed that would “avoid” an issue to reach a particular result. We have no difficulty deciding a constitutional issue when properly raised. The parties did not raise the constitutionality of the statute either before this court or the trial court; thus, we do not reach any constitutional issues here.

See n.1.

That is simply wrong. The Florida Supreme Court has called it a "settled principle" that "[w]hen two constructions of a statute are possible, one of which is of questionable constitutionality, the statute must be construed so as to avoid any violation of the constitution." State v. Presidential Women's Center, 937 So. 2d 114, 116 (Fla. 2006); see also Arthur Young & Co. v. Mariner Corp., 630 So. 2d 1199, 1203 n.5 (Fla. 4th DCA 1994). The parties had fully briefed this issue. Although they did not ask the court to invalidate the law on equal protection or due process grounds, they did argue that interpreting the statute to preclude the relief they sought would raise those constitutional concerns, and therefore the court should read the statute more narrowly. 

A party need not challenge the constitutional validity of a statute in order to raise this canon of construction. It is enough that the party apprise the court of the potential for constitutional concerns, should it adopt the opposite interpretation of the statute.

Female SCOTUS Clerks Since 2004

As a follow-up to my earlier post about the relatively small number of women in appellate practice, here is a breakdown of the female SCOTUS clerks of the last ten years by Justice (Terms 2004-13). I found that 35 percent of clerks throughout that period have been women. That is higher than the percentage of women (under 30 percent) who currently do appeals for the major appellate law firms.

Justice	Total Clerks	Female Clerks	% Female Clerks
Roberts, C.J.	32	8	25%
Rehnquist, C.J.	6	1	17%
Alito	36	10	28%
Breyer	40	19	48%
Ginsburg	40	21	53%
Kagan	16	5	31%
Kennedy	40	8	20%
O’Connor	16	7	44%
Scalia	40	7	18%
Sotomayor	20	7	35%
Souter	25	8	32%
Stevens	28	16	57%
Thomas	40	15	25%
Totals	379	132	35%