DOCSLIB.ORG

Third Circuit Bar Association Newsletter 7-1 February 2013

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Third Circuit Bar Association Newsletter 7-1 February 2013 Bar Association for the Third Federal Circuit On Appeal February 2013 U.S. CONGRESS ENDS THIRD CIRCUIT’S OVERSIGHT OF FIVE-YEAR-OLD Volume VII, Number 1 VIRGIN ISLANDS SUPREME COURT Andrew Simpson, St. Croix, U.S.V.I. and Peter Goldberger, Ardmore, PA • U.S. Congress Ends Third Circuit’s Oversight of Five-Year-Old Virgin Islands The Virgin Islands Supreme Court had a special reason to celebrate the new year: on December 28, Supreme Court—Page 1 2012, President Barack Obama signed a bill that removed the Third Circuit’s oversight of the V.I. Supreme Court and heralded a significant milestone in the Territory’s path toward greater self- • Third Circuit Upholds Law Restricting governance. Decisions of the V.I. Supreme Court on issues of local law are now unreviewable by any Press Access to Polling Places, Creating federal court. Decisions implicating the U.S. Constitution or federal law will be subject to certiorari Circuit Split —Page 1 oversight by the U.S. Supreme Court, just like the decisions of any state supreme court. But why did the Third Circuit, a federal appeals court, previously have oversight over a non-federal • Case of Interest: Defoe v. Phillip, No. court like the V.I. Supreme Court? Article IV, sec. 3 of the U.S. Constitution gives Congress the authority 12-1586, 2012 WL 6643863, --- F.3d to make “all needful Rules and Regulations respecting the Territory or Other Property of the United --- (3d Cir. Dec. 21, 2012)—Page 3 States.” Consequently, when the United States acquired the Territory of the Virgin Islands from Denmark on March 31, 1917, Congress imposed a governing structure upon the Territory. Initially, it • From the President’s Desk—Page 4 was placed under the administrative rule of the U.S. Navy—there was no local executive or legislature. • Save the Date: Third Circuit Review For the existing judicial system, Congress provided that the Third Circuit would have appellate —Page 4 jurisdiction over all cases arising in the Territory, including those that formerly had been reviewable by the courts of Denmark. Clen v. Jorgensen, 265 F. 120, 121 (3d Cir. 1921). • Practice Pointer: Ninth Circuit Guides —Page 4 (continued on page 2) THIRD CIRCUIT UPHOLDS LAW RESTRICTING PRESS ACCESS TO POLLING PLACES, CREATING CIRCUIT SPLIT PG PUBLISHING CO. V. AICHELE, NO. 12-3863, (3D CIR. JAN. 15, 2013) Thomas S. Jones and Hayley A. Haldeman, Jones Day Pittsburgh, PA In January, the Third Circuit waded into the constitutional waters surrounding press access to polling places during Election Day. Applying the “experience and logic test” to the voting process, the Third Circuit recently ruled that the First Amendment right of access—which permits the press to gather news—may be limited in the context of polling places. PG Publishing Co. v. Aichele, No. 12-3863, 2013 WL 151124, --- F.3d --- (3d. Cir. Jan. 15, 2013). The opinion by Judge Greenaway, Jr., writing for a panel that included Judge Hardiman and Judge Vanaskie, upholds a Pennsylvania law restricting media access to polling places during elections. The opinion rejects the Sixth Circuit’s analysis of a FOR MORE INFORMATION ABOUT THE similar statute, creating a split between the circuits. THIRD CIRCUIT BAR ASSOCIATION, The decision affirmed the Western District of Pennsylvania’s ruling that the statute did not violate the PLEASE CONTACT US AT: First Amendment or the Equal Protection Clause of the Fourteenth Amendment. Plaintiff, PG Publishing Company (“PG”), publisher of the Pittsburgh Post-Gazette, filed a section 1983 suit in July 2012 [email protected] against the Pennsylvania Secretary of State and the Allegheny County Board of Elections alleging the OR VISIT US AT: unconstitutionality of 25 Pa. Stat. Ann. § 3060(d). www.thirdcircuitbar.org (continued on page 3) 1 U.S. CONGRESS ENDS THIRD CIRCUIT’S OVERSIGHT OF FIVE-YEAR-OLD…—continued from page 1 Clen, a landlord-tenant dispute, was the first case Until the last five years, the nature of the Third cutting edge of state supreme courts (as of 2010, from the Virgin Islands to reach the Third Circuit. Circuit’s relationship to the Virgin Islands’ only 15 states had implemented appellate e-filing The unique relationship between the local V.I. court judicial system remained fundamentally similar systems); it has modernized and professionalized system and the Third Circuit evolved over the years, to when Soto was decided. Over the years, as the attorney discipline system; it has adopted rules but it existed in some form from 1917 until the Congress slowly granted the Territory greater of judicial discipline; it streams oral arguments beginning of this year. The second case to reach self-governance, the jurisdiction of the local courts live on the Internet; and it has published its the Circuit from the Territory was Soto v. United expanded; but, the one constant was the Third performance objectives and measures for the next States, 273 F. 628 (3d Cir. 1921). That decision Circuit’s role as the final authority on issues of local five years. In short, it is a fully functioning, highly provides a great example of the unusual issues that law. professional, supreme court. Indeed, rather than can arise when a federal court exercises appellate being subject to oversight, it could serve as a In 1984, Congress authorized the local legislature jurisdiction over local cases. model for state high courts throughout the United to create a Supreme Court of the Virgin Islands, but States. Soto was a criminal case that began with an provided that for the first 15 years of its existence, investigation into a ship-board murder allegedly the Third Circuit could review decisions of that For these reasons, it is not surprising that the Third committed by two sailors. The investigation was court via writ of certiorari. The Circuit’s Judicial Circuit—after an investigation and report from a conducted by a Police Court established by local Council was also directed to report every five years committee comprising Circuit Judge D. Brooks Virgin Islands law. In keeping with the European to Congress “as to whether [the Supreme Court] Smith, Senior Circuit Judge Walter Stapleton, and model of criminal procedure, which was followed had developed sufficient institutional traditions to Third Circuit Clerk Marcia Waldron—recommended in the V.I. at that time as a result of the Islands’ justify direct review by the Supreme Court of the in its first five-year oversight report to Congress Danish heritage, a judge presided over the United States” from its final decisions. that interim certiorari jurisdiction be terminated. investigative proceedings. The judge called the Interestingly, the oversight transition in the In 2004, the Virgin Islands legislature established a witnesses, who gave testimony. Then the two Virgin Islands was shorter than the process that Supreme Court and the court assumed jurisdiction suspects were asked if they wished to rebut the took place in Guam, where the Ninth Circuit January 29, 2007. In accordance with its mandate testimony. Upon the completion of the investigation, recommended a transition to local judicial from Congress, the Third Circuit established local criminal charges were filed in the federal district independence after eight and a half years. rules for considering writs of certiorari to the court. The same judge (from the Police Court) Virgin Islands Supreme Court. In the first case in Upon receiving the Third Circuit’s report, Congress presided over this case, along with four “lay- which it granted certiorari, the Circuit held that it passed Public Law 112-226, which the president judges” he selected to serve with him. The would defer to decisions of the Supreme Court of signed into law December 28, 2012. The prosecution relied upon the written record from the the Virgin Islands on matters of local law unless background of the law is recounted in the Third Police Court to establish guilt. The seamen were it found the decisions to be manifestly erroneous. Circuit’s December 21, 2012, decision in Defoe v. offered the opportunity to call witnesses but chose (The Third Circuit Bar Association provided Phillip, 2012 WL 6643863. See Case of Interest, not to. (On appeal, the Third Circuit noted that the commentary on the Court’s proposed certiorari page 3. “choice” was illusory, as all witnesses had long rules and, as part of that commentary, urged the since departed on the ship.) The district court found For the Virgin Islands, the change is important Court to announce the standard of review for such one of the seamen guilty of murder and sentenced and much to be desired. Nevertheless, the end of cases at its earliest opportunity.) With President him to death; the other seaman was convicted as the Circuit’s functioning as a local supreme court Obama’s signature, that era of review is coming to an accomplice and sentenced to six years. will change one aspect of the practice of law in an end. (The law removes Third Circuit oversight the Territory that many Virgin Islands lawyers will On appeal, the Third Circuit noted that Congress from all cases filed December 28, 2012 and later.) look back upon with great fondness: the Circuit had provided that the judicial procedure While a jurisdiction’s highest court might took its oversight role seriously, and as a result, established by Danish law should continue to apply understandably chafe at the idea that another Virgin Islands lawyers enjoyed the privilege of in the Territory, “in so far as compatible with the court could review its decisions on local law, arguing cases before the Third Circuit in far greater changed sovereignty.” While Danish law had been the Supreme Court of the Virgin Islands never numbers than their counterparts in New Jersey, followed scrupulously in the case, the Third Circuit expressed any such frustration.
Load more

Recommended publications
  • The Ideological Divide: Conflict and the Supreme Court's Certiorari Decision
    THE IDEOLOGICAL DIVIDE: CONFLICT AND THE SUPREME COURT’S CERTIORARI DECISION EMILY GRANT* SCOTT A. HENDRICKSON** MICHAEL S. LYNCH*** ABSTRACT This Article bridges a gap in existing literature by evaluating, from an empirical perspective, the impact of conflict among the lower courts on the Supreme Court’s decision to grant or deny a petition for a writ of certiorari. Specifically, this Article looks at the political ideology of the lower courts involved in a split of authority on federal law and compares those positions to the political ideology of the Supreme Court itself. This Article concludes that the ideological content of lower court opinions in a conflict case impacts the Supreme Court’s certiorari decisions in a statistically significant way, and thus sheds new light on the role lower court conflict plays in whether the Supreme Court’s exercise of its discretion to grant cert. I. INTRODUCTION .................................................................... 560 II. BACKGROUND ...................................................................... 563 A. The Writ of Certiorari and the Development of Discretion .................................................................... 563 B. The Tie Between Certiorari and Conflict .................... 565 C Conflict, the Uniformity of Federal Law, and the Certiorari Decision ...................................................... 567 III. STUDYING CERTIORARI BEHAVIOR FROM AN EMPIRICAL PERSPECTIVE ....................................................................... 569 A. The Development
    [Show full text]
  • Why Congress Should Not Split the Ninth Circuit
    SMU Law Review Volume 50 Issue 2 Article 5 1997 Why Congress Should Not Split the Ninth Circuit Carl Tobias Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Carl Tobias, Why Congress Should Not Split the Ninth Circuit, 50 SMU L. REV. 583 (1997) https://scholar.smu.edu/smulr/vol50/iss2/5 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. WHY CONGRESS SHOULD NOT SPLIT THE NINTH CIRCUIT Carl Tobias* TABLE OF CONTENTS I. THE BACKGROUND OF SENATE BILL 956 ........... 584 II. ANALYSIS OF SENATE BILL 956 ...................... 588 A. DESCRIPTIVE ANALYSIS OF SENATE BILL 956 ......... 588 B. PROPONENTS' ARGUMENTS FOR SENATE BILL 956 AND R ESPONSES ............................................ 589 C. ADDITIONAL ARGUMENTS AGAINST SENATE BILL 956 .................................................... 592 1. The Limited Strategy of Circuit-Splitting ........... 592 2. The Problems of a One-State Circuit............... 593 3. The Ninth Circuit and Experimentation ............ 594 4. A Closer Look at the Ninth Circuit ................ 595 5. Miscellaneous Disadvantages ...................... 596 D . RESOLUTION .......................................... 597 III. SUGGESTIONS FOR THE FUTURE ................... 597 A. A NATIONAL STUDY .................................. 598 B. IMPROVEMENTS IN SENATE BILL 956 .................. 600 IV. CONCLUSION ........................................... 601 URING the first session of the 104th Congress, the United States Senate Judiciary Committee approved Senate Bill 956, a proposal to split the United States Court of Appeals for the Ninth Circuit. The measure would have established a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington and would have left California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit.
    [Show full text]
  • Why Congress Should Not Split the Ninth Circuit Carl Tobias
    SMU Law Review Volume 50 | Issue 2 Article 5 1997 Why Congress Should Not Split the Ninth Circuit Carl Tobias Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Carl Tobias, Why Congress Should Not Split the Ninth Circuit, 50 SMU L. Rev. 583 (1997) https://scholar.smu.edu/smulr/vol50/iss2/5 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. WHY CONGRESS SHOULD NOT SPLIT THE NINTH CIRCUIT Carl Tobias* TABLE OF CONTENTS I. THE BACKGROUND OF SENATE BILL 956 ........... 584 II. ANALYSIS OF SENATE BILL 956 ...................... 588 A. DESCRIPTIVE ANALYSIS OF SENATE BILL 956 ......... 588 B. PROPONENTS' ARGUMENTS FOR SENATE BILL 956 AND R ESPONSES ............................................ 589 C. ADDITIONAL ARGUMENTS AGAINST SENATE BILL 956 .................................................... 592 1. The Limited Strategy of Circuit-Splitting ........... 592 2. The Problems of a One-State Circuit............... 593 3. The Ninth Circuit and Experimentation ............ 594 4. A Closer Look at the Ninth Circuit ................ 595 5. Miscellaneous Disadvantages ...................... 596 D . RESOLUTION .......................................... 597 III. SUGGESTIONS FOR THE FUTURE ................... 597 A. A NATIONAL STUDY .................................. 598 B. IMPROVEMENTS IN SENATE BILL 956 .................. 600 IV. CONCLUSION ........................................... 601 URING the first session of the 104th Congress, the United States Senate Judiciary Committee approved Senate Bill 956, a proposal to split the United States Court of Appeals for the Ninth Circuit. The measure would have established a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington and would have left California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit.
    [Show full text]
  • 13 Cincinnati Women’S Services, Inc
    No. 18A774 In the Supreme Court of the United States ______________ JUNE MEDICAL SERVICES L.L.C., on behalf of its patients, physicians, and staff, d/b/a HOPE MEDICAL GROUP FOR WOMEN; JOHN DOE 1; JOHN DOE 2, Applicants, v. DR. REBEKAH GEE, in her official capacity as Secretary of the Louisiana Department of Health and Hospitals, Respondent. ______________ On Application to Stay the Mandate of the United States Court of Appeals for the Fifth Circuit ______________ OBJECTION TO EMERGENCY APPLICATION FOR A STAY PENDING THE FILING AND DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI ______________ GENE C. SCHAERR JEFF LANDRY STEPHEN S. SCHWARTZ LOUISIANA ATTORNEY GENERAL SCHAERR|JAFFE LLP ELIZABETH B. MURRILL 1717 K Street NW, Suite 900 Solicitor General Washington, DC 20006 Counsel of Record (202) 787-1060 J. SCOTT ST. JOHN [email protected] Deputy Solicitor General [email protected] LOUISIANA DEPARTMENT OF JUSTICE 1885 N. 3rd St. Baton Rouge, LA 70802 (225) 326-6766 [email protected] Counsel for Respondent TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................. iii INTRODUCTION ............................................................................................... 1 BACKGROUND .................................................................................................. 2 REASONS FOR DENYING THE APPLICATION ............................................ 9 I. THIS COURT IS UNLIKELY TO GRANT CERTIORARI AND REVERSE. ...................................................................................................
    [Show full text]
  • Supreme Court of the United States ______PETER M
    No. 18-1049 IN THE Supreme Court of the United States ____________________ PETER M. HOFFMAN, MICHAEL P. ARATA, and SUSAN HOFFMAN, Petitioners, v. UNITED STATES OF AMERICA, Respondent. ____________________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit ____________________ REPLY BRIEF FOR PETITIONERS ____________________ Anton Metlitsky Jeffrey L. Fisher O’MELVENY & MYERS LLP Counsel of Record Times Square Tower O’MELVENY & MYERS LLP 7 Times Square 2765 Sand Hill Road New York, N.Y. 10036 Menlo Park, Cal. 94025 (212) 326-2000 (650) 473-2633 [email protected] Kendall Turner O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 (202) 383-5300 i TABLE OF CONTENTS Page REPLY BRIEF FOR PETITIONERS ....................... 1 I. The Court Should Grant Certiorari to Resolve the Propriety of the Equipoise Rule .............. 2 A. The split as to whether the equipoise rule properly effectuates Jackson is meaningful ........................................... 2 B. The equipoise question presented is properly preserved ............................... 6 II. This Court Should Grant Review on The Ambiguity Question Presented ...................... 8 CONCLUSION ........................................................ 12 SUPPLEMENTAL APPENDIX A La. Act 530 (effective July 10, 2009) ............ 1a SUPPLEMENTAL APPENDIX B La. H. Con. Res. 181 (2008).......................... 4a ii TABLE OF AUTHORITIES Page(s) CASES Alabama v. White, 496 U.S. 325 (1990) .......................................... 3–4 Cage v. Louisiana, 498 U.S. 39 (1990) ............................................ 2, 3 District of Columbia v. Wesby, 138 S. Ct. 577 (2018) ............................................ 3 Elonis v. United States, 135 S. Ct. 2001 (2015) .......................................... 3 Florida v. J.L., 529 U.S. 266 (2000) .............................................. 3 In re Winship, 397 U.S.
    [Show full text]
  • (1) a Motion to Strike and Fo
    Case 2:19-cv-11793-BWA-DPC Document 45 Filed 04/14/20 Page 1 of 53 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KATHERINE MUSLOW AND CIVIL ACTION MEREDITH CUNNINGHAM VERSUS NO. 19-11793 BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL SECTION M (2) AND MECHANICAL COLLEGE, THOMAS SKINNER, LARRY HOLLIER, AND JON HARMAN ORDER & REASONS Before the Court is (1) a motion to strike and for protective order,1 and (2) a partial motion to dismiss plaintiffs’ amended complaint,2 both filed by defendants Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (the “LSU Board”), Thomas Skinner, Larry Hollier, and Jon Harman (collectively, “Defendants”). Plaintiffs Katherine Muslow and Meredith Cunningham (collectively, “Plaintiffs”) oppose both motions.3 Defendants reply in support of their motions.4 Having considered the parties’ memoranda, the record, and the applicable law, this Court issues this Order and Reasons. I. BACKGROUND A. Factual Background Plaintiffs were formerly employed with the LSU Board as attorneys. The LSU Board oversees and manages Louisiana State University and Agricultural and Mechanical College (“LSU”) institutions across Louisiana, including its campuses in Baton Rouge (“LSU (Baton 1 R. Doc. 33. 2 R. Doc. 35. 3 R. Docs. 36; 37. 4 R. Docs. 41; 43. Case 2:19-cv-11793-BWA-DPC Document 45 Filed 04/14/20 Page 2 of 53 Rouge)”) and the LSU Health Sciences Center in New Orleans (“LSU (New Orleans)”).5 Until recently, Skinner was Vice President of Legal Affairs and General Counsel at LSU (Baton Rouge). Hollier is Chancellor, and Harman Vice Chancellor, Administration and Finance at LSU (New Orleans).6 Also until recently, Muslow was “General Counsel” to LSU (New Orleans) and reported directly to Hollier.7 Before her employment at LSU (New Orleans), she served as its outside counsel.
    [Show full text]
  • Melissa Lucio's
    Case: 16-70027 Document: 00515739449 Page: 1 Date Filed: 02/09/2021 United States Court of Appeals United States Court of Appeals for the Fifth Circuit Fifth Circuit FILED February 9, 2021 No. 16-70027 Lyle W. Cayce Clerk Melissa Elizabeth Lucio, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. Appeal from the United States District Court for the Southern District of Texas USDC No. 1:13-CV-125 Before Owen, Chief Judge, and Higginbotham, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, and Oldham, Circuit Judges.* Andrew S. Oldham, Circuit Judge, announced the judgment of the court and delivered an opinion joined by Owen, Chief Judge, and Jones, Smith, Ho, Duncan, and Engelhardt, Circuit Judges: * This case was submitted before Judge Wilson was confirmed to our court. Judge Wilson did not take part in the consideration or decision of this case. Case: 16-70027 Document: 00515739449 Page: 2 Date Filed: 02/09/2021 No. 16-70027 A Texas jury convicted Melissa Lucio of capital murder for beating to death her two-year-old daughter. The state courts affirmed her conviction and sentence on direct appeal and denied her petition for postconviction relief. Now she seeks federal habeas relief. Lucio argues that the state trial court denied her constitutional right to present a complete defense by excluding two expert witnesses from testifying at the guilt phase of her trial. The federal district court held that she cannot surmount the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
    [Show full text]
  • No. 13-9003 ___JAMES A. DENNIS V
    PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 13-9003 _____________ JAMES A. DENNIS v. SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT GREENE; SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT ROCKVIEW; DISTRICT ATTORNEY OF PHILADELPHIA COUNTY, Appellants On appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2-11-cv-01660) District Judge: Honorable Anita B. Brody Argued on November 5, 2014 before Merits Panel Argued En Banc on October 14, 2015 Before: McKEE Chief Judge, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE and RENDELL* Circuit Judges (Filed: August 23, 2016) Ronald Eisenberg, Esquire (Argued) Susan E. Affronti, Esquire Ryan Dunlavey, Esquire Philadelphia County Office of District Attorney 3 South Penn Square Philadelphia, PA 19107 Counsel for Appellants *Honorable Marjorie O. Rendell assumed Senior Status on July 1, 2015. 2 Amy L. Rohe, Esquire (Argued) Reisman Karron Green 1700 K. Street, N.W. Suite 200 Washington, DC 20006 Stuart B. Lev, Esquire Federal Community Defender Office for the District of Pennsylvania Trial Unit 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 Counsel for Appellee Catherine M. A. Carroll, Esquire WilmerHale 1875 Pennsylvania Avenue, N. W. Washington, DC 20006 Counsel for Amicus Appellees 3 O P I N I O N RENDELL, Circuit Judge. James Dennis has spent almost twenty-four years unsuccessfully challenging his conviction for the murder of Chedell Williams. The Pennsylvania Supreme Court repeatedly affirmed Dennis’s first-degree murder conviction and sentence and denied his applications for post-conviction relief.
    [Show full text]
  • Comparing the Roberts and Rehnquist Courts' Ideological
    SUPREME SPLIT: COMPARING THE ROBERTS AND REHNQUIST COURTS’ IDEOLOGICAL PREFERENCES TOWARD BUSINESS ACCOUNTING FOR CASE SELECTION Clifford Winston Jia Yan Quentin Karpilow Brookings Institution Washington State University Yale University [email protected] [email protected] [email protected] Abstract. There is growing concern that Supreme Court rulings are increasingly being made along partisan lines. We develop a new methodology that jointly analyzes justices’ selection of cases to hear and their rulings, while allowing for justice preference heterogeneity, to estimate the effects of their ideology on business case rulings in the Roberts and Rehnquist Courts. In contrast to prior approaches that mute justices’ ideological preferences by not controlling for case selection, we find strong evidence of growing politicization and polarization on the Supreme Court. We briefly discuss explanations for, consequences of, and possible reforms to mitigate this worrisome trend. May 2016 1 1. Introduction The Supreme Court of the United States (SCOTUS) has ultimate jurisdiction over federal laws and plays a central role in determining the nation’s economic and social policies. In contrast to Congress and the Executive Office of the President, the Supreme Court is generally thought to be an independent and apolitical body because justices are appointed for life, are not ambitious for higher office, decide which cases they wish to hear, and are not subject to reversal by a higher court (Segal and Spaeth (2002)). This perceived aloofness from politics has bolstered public trust in the Court, and public opinion polls have repeatedly shown that, of the three branches of government, Americans hold the judicial branch in the highest regard.
    [Show full text]
  • Notes Resolving the Circuit Split on Defense Witness Immunity
    Notes Resolving the Circuit Split on Defense Witness Immunity: How the Prosecutorial Misconduct Test Has Failed Defendants and What the Supreme Court Should Do About It* I. Introduction This Note discusses the near impossibility of obtaining immunity for defense witnesses in federal criminal cases. It provides a statistical overview suggesting that the “prosecutorial misconduct” standard used in ten of the twelve circuits fails to provide adequate protection for the accused. The Note then analyzes arguments on both sides of the matter before concluding that the Supreme Court, yet to rule on the issue, should expand a defendant’s right to obtain immunity for essential witnesses. One of the earliest cases to explore defense witness immunity, Earl v. United States,1 was written by Judge (and later Chief Justice) Warren Burger when he served on the U.S. Court of Appeals for the District of Columbia. Earl was convicted of selling heroin to an undercover policeman.2 During the trial Earl sought to prove his innocence via the testimony of Frank Scott, but when called to the stand Scott invoked the Fifth Amendment.3 Scott, also involved in the heroin sale, would have testified that Earl was not present and that a man resembling Earl was at the sale.4 This testimony would have corroborated the defense theory of mistaken identity.5 Ultimately the trial judge denied Earl’s request to immunize Scott, and on appeal, Earl’s conviction was sustained. 6 Judge Burger explained that under the circumstances a court could not grant immunity on its own without authorization from Congress.7 The relevant statute for understanding defense witness immunity is the use-immunity statute, 18 U.S.C.
    [Show full text]
  • In the Supreme Court of the United States
    NO. 20-602 In the Supreme Court of the United States STEPHANIE G. CLIFFORD, Petitioner, v. DONALD J. TRUMP, Respondent. __________________________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit REPLY BRIEF OF PETITIONER CLARK O. BREWSTER COUNSEL OF RECORD GUY A. FORTNEY MBILIKE M. MWAFULIRWA BREWSTER & DE ANGELIS PLLC 2617 E. 21ST STREET TULSA, OK 74114 (918) 742-2021 [email protected] JANUARY 19, 2021 COUNSEL FOR PETITIONER i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................... ii INTRODUCTION ....................................................... 1 ARGUMENT ............................................................... 3 I. THIS CASE PRESENTS AN IDEAL VEHICLE TO REVIEW THE QUESTION PRESENTED .................. 3 II. THE NINTH CIRCUIT’S DECISION IS WRONG AND WARRANTS THIS COURT’S IMMEDIATE REVIEW .............................................................. 7 CONCLUSION .......................................................... 12 ii TABLE OF AUTHORITIES Page TABLE OF AUTHORITIES CASES Abbas v. Foreign Policy Grp., 783 F.3d 1328 (D.C. Cir. 2015) ..................... 2, 11 Abbott v. Veasey, 137 S.Ct. 612 (2017) ............................................ 7 Arizona v. United States, 567 U.S. 387 (2012) ............................................. 8 Boyle v. United Tech. Corp., 487 U.S. 500 (1988) ............................................. 9 Bush v. Gore, 531 U.S. 98 (2000) ........................................... 4, 9 C.I.R. v. McCoy, 484
    [Show full text]
  • On Appeal May 2020 − Volume XIV, Number 2
    Bar Association for the Third Federal Circuit On Appeal May 2020 − Volume XIV, Number 2 • Another False Claims Act Circuit Split: ANOTHER FALSE CLAIMS ACT CIRCUIT SPLIT: THE THIRD CIRCUIT The Third Circuit Weighs in on Whether a WEIGHS IN ON WHETHER A CLINICAL OPINION CAN BE DEEMED Clinical Opinion Can Be Deemed “False” “FALSE” UNDER THE FCA Under the FCA – Page 1 952 F.3d 89 (3d Cir. 2020) • Third Circuit Sides with Sister Circuits U.S. ex rel. Druding v. Care Alternatives, and Adopts Clear-Statement Rules for Ted A. Hages Ambiguous Dismissal Orders – Page 1 Reed Smith LLP, Pittsburgh, PA • Advisory Opinion: A Former Third Circuit In United States ex rel. Druding v. Care Alternatives, 952 F.3d 89 (3d Cir. 2020), the Third Circuit ruled Judge’s Tips for Winning on Appeal – that a difference of opinion between parties’ medical experts can create a triable jury question as to Page 2 the falsity requirement for an action under the False Claims Act (FCA). Declining to adopt the more • Tips for Remote Oral Arguments – Page 5 rigorous “objective falsity” standard of the Eleventh and Fifth Circuits, the Third Circuit joined with other appellate courts that have determined that dueling expert opinions can create a genuine dispute • Third Circuit to Start Numbering Docket of material fact. Entries – Page 5 (continued on page 3) • Third Circuit Holds Removal to Federal Court Does Not Constitute a Waiver of Defenses – Page 6 THIRD CIRCUIT SIDES WITH SISTER CIRCUITS AND ADOPTS CLEAR- • President’s Note – Page 7 STATEMENT RULES FOR AMBIGUOUS DISMISSAL ORDERS1 • Clerk’s Office Accepting Original Papera v.
    [Show full text]