Pussycat Pop-Gun

Posted in Case Reports by Mike Sacks on March 31, 2010

Crazy Legs Breyer swings for the rafters once again:

JUSTICE BREYER: Can I ask you a related question, which will show what I’m trying — another thing that is worrying me. Suppose we are in the Armed Career Criminal Act.

Now, I have — this is my hypothetical. You have heard of cat burglars. Well, this gentleman is called the pussycat burglar and the reason is he never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream.


It is absolutely established that this person in breaking into that houseat night only wanted to steal a pop gun, and he is the least likely to cause harm in the world.

Question: He is convicted of burglary. Is that a crime of violence? Answer?


…Out like a Lamb.

Posted in Case Reports by Mike Sacks on March 31, 2010

You’d think that the scene from the above picture–taken as I exited the Court after Carachuri-Rosendo–would indicate that something exciting was happening inside.  But you’d be wrong.

Probably a third of those on the right side were the lawyers, law students, and aspiring law-types who remained from 7am but could not get into Carachuri.  Moments later, a handful of these folks would be ushered in to see Robertson v. U.S. ex rel. Watson.

The rest of the orderly mass outside came to sate their Supreme Court curiosity while in town for Spring Break or the Cherry Blossom Festival.  I hope they get in for a three-minute glimpse of the Court in session.  Otherwise, at least they can bask in the beautiful day.

Meanwhile, I am now back home and trying to figure out what to make of this morning’s session.

Justice Stevens read the Court’s opinion in Padilla.  The decision, joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor, punted on whether Padilla could claim ineffective assistance of counsel for his lawyer’s mistakenly assuring him that he needn’t worry that a guilty plea would result in his deportation.  The Court did hold for the general principle that a lawyer for an alien charged with a crime has a Sixth Amendment obligation to tell his client that a guilty plea may result in deportation.  Justice Alito, joined by Chief Justice Roberts, read that obligation narrowly in his concurrence in the Court’s judgment; going one step further, Justice Scalia, in a dissent joined by Justice Thomas, called the obligation “permanent…overkill.”

Carachuri-Rosendo proved equally unsatisfying.  The main argument was whether an alien, charged with a second state misdemeanor drug offense, could be considered a felon under federal immigration and drug laws when the prosecutor failed to charge him as a recidivist offender.  Lawyers from both sides ably argued and the justices asked spirited questions, but the substance of the law at issue so obscured the case’s broader ramifications that even Justice Breyer’s crazy “cat burglar” hypothetical–which, to his merit, involved pillows and ice cream–could not save this reporter’s story.

As far as F1@1F is concerned, then, the Court’s March sitting was a bust.  No big arguments, no big opinions, and the argument and opinion that could have been contenders fizzled out today.  Even this morning’s line, though fun and massive, held no story!

But so it goes for March: in like a lion and out like a lamb.  April, on the other hand, will be different.

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Posted in Anticipation by Mike Sacks on March 31, 2010

Back home to snack, shower, and suit up.  A few quick thoughts on the Carichuri-Rosendo line:

  • It felt good to get back out in line for the first time since March 1.  Still, I needed my winter gear this morning even though I would have killed for this morning’s weather during my wintry waits.
  • I’ve moved my on-the-ground photos and commentary to my twitter feed.
  • No Vox Populi column coming out of this morning’s wait.  Almost exclusively lawyers, law students, aspiring law students out there.  Wonderful people, all, but not enough variation in “why are you here?” answers for a compelling story from line.
  • The line exploded just before 7am.  Up there with Citizens United and McDonald.  Peculiarly, not much chatter in the line about this morning’s cases, whereas for previous cases, long line or not, there was considerable buzz.

Time to go get ready.  I’ll be back later today with the link to my oral argument write-up at the ABA Journal.

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Posted in Uncategorized by Mike Sacks on March 31, 2010

3:40am. I still got it.

Sotomayor’s First Authored Dissent

Posted in Case Reports by Mike Sacks on March 30, 2010

The Court handed down three decisions today, none of which were the ones most have been waiting for.  We did, however, get Justice Sotomayor’s first authored dissent.

The milestone is more exciting than the dissent itself.  In Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, the Court considered whether the False Claims Act bars qui tam–or whistleblower–actions based on information in “administrative” sources from state and local governments along with those from the federal government.  Justice Stevens wrote for a 7-2 majority that the FCA’s qui tam bar does reach state and local sources.  Justice Sotomayor, joined by Justice Breyer, would have held that the statute only implicated federal sources.

Both Stevens and Sotomayor divined their decisions by applying the maxim of “noscitur a sociis,” in which an unclear word in a statute “may be known by the company it keeps.”  The two sides battled over the word, “administrative,” in the middle of the FCA’s phrase, “in a congressional, administrative, or Government Accounting Office [(GAO)] report, hearing, audit, or investigation.”  Stevens did not find “congressional” and “GAO” dispositive of a federal limitation to the whistleblower bar.

Sotomayor disagreed, noting that

[t]he three terms…the Court concludes, are “too few and too disparate” to justify invocation of noscitur a sociis. We have not previously constrained the canon in this way, and I would not do so here. […]

Here, application of the noscitur a sociis principle readily yields a common feature: The sources at issue are federal in nature, not related to state or local governments or private entities.

As I wrote above, nothing too exciting in the substance of Sotomayor’s dissent, perhaps except in the fact that her opinion would have allowed for greater access to Courts for whistleblowers under the FCA.

In the unsurprising nonmilestone file, Justice Scalia wrote a concurrence rejecting both sides’ reliance on legislative history:

it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of “history” that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.

I Blinked.

Posted in Anticipation by Mike Sacks on March 30, 2010

It’s 4:45am.  I’ve been up for over an hour.  I’m all dressed, spare one shoe.  But I’m going back to sleep.

Dillon v. United States, this morning’s first case, certainly classifies as a mid-major.’s Legal Blog Watch predicted yesterday that by last night I’d  be “already in line with a couple of PowerBars and an empty milk jug.”  And while I find PowerBars unsavory and my lactose intolerance distances me from milk jugs even as latrines, I had intended to get in line for Dillon.

But I blinked.  Instead of rushing out the door soon after my alarm went off, I spent an hour agonizing over obstacles surmountable or imagined: my Passover seder kept me up a little too late last night; I hear rain and thunder outside; the Court’s slated to hand down decisions this morning, hopefully several big ones; Dillon is just a sentencing case.

Dillon, however, is not just a sentencing case.  It’s a sequel of sorts to United States v. Booker, in which the Court, by an ideologically scrambled 5-4 vote, held that the federal sentencing guidelines were advisory rather than mandatory. Dillon asks whether a federal judge may modify a sentence to go below the Guidelines even as he resentences a criminal per a new guideline range.  In other words, as applied to Dillon‘s facts, does Congress’s retroactive lessening of the mandatory minimum sentence for a crack cocaine possession preclude a judge from also relying upon Booker to further reduce the sentence?  Behind the curtain, the justices may have seen something sympathetic in Percy Dillon, as the Court has denied certiorari in similar cases, and the SG’s office recommended denial in this case.

Dillon may, then, go on my short list of arguments I should have attended.  But whereas my marathon McDonald tailgate swallowed up my chances to see Skilling and Samantar, my excuses for staying home for Dillon may not add up–especially if the Court hands down no big opinions for me to write up today.

Then again, the Court’s March sitting is not yet over and I do need to conserve my energy during this carb-starved week…

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Obama and Roberts Agree

Posted in Case Reports, Clairvoyance, Law and Politics by Mike Sacks on March 27, 2010

The public colloquy between President Obama and Chief Justice Roberts continues, but this time they have acted in concert rather than at loggerheads.

At Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, the Court considered whether the five-seat NLRB could command a quorum of three when only two members actually sat on the board.  The Government argued that two board members could, in fact, constitute a quorum for NLRB deliberations in the face of Senatorial obstruction to the President’s three nominees to the NLRB.

After Justices Kennedy, Scalia, and Ginsburg grilled Deputy Solicitor General Katyal over the broken nomination and confirmation process, Chief Justice Roberts lobbed a final, “why are we even here?” question: “And the recess appointment power doesn’t work why?”

Today the President demonstrated that he heard the Chief Justice’s suggestion and used his recess appointment power to place two of his NLRB nominees, both Democrats, in their posts.  Obama left unappointed his third nominee, a Republican.

Whether Obama’s move will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain.  Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question.  For this reason, the Court may “G…VR” the case for consideration by the newly quorum’ed NLRB.

Nevertheless, New Process Steel’s claim remains grounded in the fact that a statutorily questionable two-member NLRB rendered a decision against the company; indeed, there stand many NLRB decisions made by its two members whose statutory legitimacy would remain questionable without the Court’s ruling.

Further, even with the four members now sitting on the NLRB, simple math and recess appointment rules suggest that the Court would do well to clarify matters: first, one NLRB member is set to retire this summer; second, the two members appointed today may not receive Senate confirmation at the end of the next session of Congress–and at least one has faced significant opposition.  Four minus one minus one or two.  That’s back to below three NLRB members.

The concrete grievances over the legitimacy of past two-member NLRB decisions such as the one against New Process Steel are far more persuasive reasons why the Court should address the merits of this case than the fear of some future moment when the NLRB dips back down below three members.  But that fear of the future will surely affect the Court’s reasoning if it does choose to decide the case so to retroactively (and therefore prospectively) bless or condemn the two-member decisions.

Roosevelt Rubicon: Greenhouse, L, concurring.

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 26, 2010

Linda Greenhouse echoes my previous post in her NYT Opinionator column filed last night:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

The Roosevelt Rubicon

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 24, 2010

Per the latest round of constitutional attacks on the now-passed Patient Protection and Affordable Care Act (PPACA), my original post from early January still holds.

The Roberts Court knows not to backpedal across the Roosevelt Rubicon.  Striking down the PPACA will be today’s equivalent of the pre-1937 Hughes Court’s sustained attack on New Deal legislation.

Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate to strike down the law are overheated.  We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.

I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling.  Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.

Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari.  And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.

In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.

Today’s Stories that Weren’t

Posted in Anticipation, Clairvoyance, Justicespotting by Mike Sacks on March 23, 2010

Back when I started up F1@1F, Kiyemba v. Obama stood to be argued this morning as the next installment of the Court’s Guantanamo cases, following 2008’s landmark ruling in Boumediene v. Bush.  The case asked whether a federal judge had the power to relocate into the United States the few remaining Uighurs held at Guantanamo after they were determined not to have been enemy combatants.

But then the Swiss agreed in early February to resettle the remaining Uighurs just before the Government’s brief was due to the Court.  Despite some arguing that the Court should still hear the case for the legal issues presented, the Court remanded the case for further review, stating that “[n]o court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.”  Five of the Uighurs remain in Guantanamo after refusing multiple relocation offers from countries without established Uighur communities.

Without Kiyemba on the docket, this week has held little promise for F1@1F.  I thought about going to this morning’s remaining case, New Process Steel v. National Labor Relations Board, just to see what the line would be like for a case asking whether two people equals three people (really!).  But my alarm this morning also woke in me some bleary-eyed clarity: the Court could be handing down major opinions from its October sitting this morning and I would be attending a lunch talk by Judge Diane Wood.  I could very well be writing about these things through the afternoon and evening, so I chose to get a few more hours of sleep rather than watch the justices themselves pass out during an argument about an NLRB quorum.

But United States v. Stevens, Salazar v. Buono, and Padilla v. Commonwealth of Kentucky did not come down today.  Instead, we got a unanimous bankruptcy decision.

Without writing material from the Court, I went off to see Judge Wood speak at an ACS lunch discussion.  Whether she was in DC solely for this event, or if she had some more important matters in DC, no one said.  In fact, her talk and the accompanying Q&A focused almost exclusively on Seventh Circuit practice.

The only noteworthy quotes came from Tom Goldstein of SCOTUSBlog, who, in introducing Judge Wood, recognized the “undeniable subtext” of why I and nearly all of the Supreme Court press corps was in attendance: “if the stars align and the Left shows some guts, Diane Wood should be on the Supreme Court.”

It was a necessarily glowing, but no less sincere, introduction from the man who predicted last month that President Obama would pass over Wood for the younger, more confirmable Elena Kagan.  F1@1F, however, continues to maintain that Wood will be the next justice should Justice Stevens retire at the end of this term.

Even though I left the talk without a story, it was good to have a potential before-she-was-a-justice moment.  Still, here’s to a more fruitful next week for F1@1F.

Finally, two bits of miscellaneous debris from yesterday:

  • ABC’s Ariane de Vogue wrote yesterday about Goodwin Liu’s nomination to the Ninth Circuit, with a sub-headline of, “Contentious Hearing for Lower Court Nominee to Foreshadow High Court Battles to Come.”  The article reports out and builds upon what I observed here in January.
  • The Atlantic’s Marc Ambinder has a “you heard it here first” post about Ben Mizer, Ohio’s Solicitor General.  Ambinder seems to suggest deeply between the lines that Mizer, who argued before the Court yesterday, stands a chance well down the line of becoming a Justice.

UPDATE: Dahlia Lithwick makes me wish I went to this morning’s case after all…

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