SBM Blog

Happy Birthday, Justice Ginsburg

Continuing our theme of highlighting the assortment of characters who share birthdays with U.S. Supreme Court justices, we note the Ides brothers and sisters who join Justice Ruth Bader Ginsburg in a March 15 birthday:

• Ry Cooder
• Fabio
• Hadrian
• Ruth Bader Ginsburg
• Lightnin’ Hopkins
• Harold Ickes
• Andrew Jackson
• Harry James
• Mike Love
• David Parker
• Jimmy Swaggart
• Will I Am
• Kevin Youklis

We invite readers to inform us of notable MIchiganders who share Justices' birthdays.

Getting Personal: Speculating About Supreme Court Justices' Families And Same-Sex Marriage

An AP story wonders about how the following arguments advanced by opponents of same-sex marriage might strike the two U.S. Supreme Court justices who have adopted children, Chief Justice Roberts and Justice Thomas:

• Proposition 8 ... plainly bears a close and direct relationship to society's interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who brought them into the world in stable and enduring family units.

• Reserving marriage to a man and a woman ... reflects the inherent distinction between those pairs capable of engaging in the act which can produce human offspring, and those pairs which cannot.

The case, Hollingsworth v. Perry, will be argued March 26.

One Co-Counsel For Gay Marriage Is Optimistic About Supreme Court Outcome

David Boies, who along with Ted Olson took what was then considered the long-shot case to overturn California's voter-initiated ban on same-sex marriage, told USA Today that he's optimistic the U.S. Supreme Court will come down his way in Hollingsworth v. Perry. Which prompts the question, how's Olson feeling?  And how optimistic did Boies feel before he argued Bush v. Gore, in which he represented Gore and Olson represented Bush?

Voting Rights Case: Epstein Answers Greenhouse

It's hard to pick the biggest roundhouse punch from among the many punches thrown by defenders of Sec. 5 of the Voting Rights Act in the aftermath of the oral argument in Shelby County v. Holder.  But my vote goes to the Linda Greenhouse's furious NYT Opinionator column, "A Big New Power:"

The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.

But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”

Now, another formidable legal commentator, Richard Epstein, has stepped up with  "The Mirage of Racism" to defend the honor of the derogators of Sec. 5, taking on Greenhouse directly but distancing himself from Justice Scalia's "provocative, if ill-considered, remark in oral argument characterizing the Voting Rights Act of 1965 (VRA) as the 'perpetuation of racial entitlement.'" He argues:

A motive-based inquiry that looks at the intent of the public body in enacting certain voting practices generates better results than the disparate impact approach. To scorn that approach invites all sorts of disparate treatment. Thus there is a steady stream of justice department initiatives that have forced states to adopt grotesquely shaped majority-minority districts, with the sole purpose of maximizing the influence of minority voters.

All of this has met with an uncertain response in the Supreme Court, which tries to have it both ways by applying a standard of strict scrutiny while showing at least some respect to the Justice Department’s handiwork. Yet these complex efforts that rig district lines make it exceedingly hard to determine which, if any, of these initiatives do increase minority representation, given that redrawing the lines for one district necessarily redraws them for others.

At this point, the irony increases. If the Fifteenth Amendment were read as a colorblind provision, all of these redistricting efforts with transparent racial motivations would have to be promptly struck down on the grounds that they deny or abridge the voting rights of all citizens, black or white, who are not in the preferred district. The notorious refusal to take this step is yet another instance in which the ostensible effort to remove race from politics has had the exact opposite effect.

So what is Epstein's prescription?

Under the VRA as it currently stands, we have too much federal intervention too soon, for too long, and for too little cause. The Supreme Court should strike the VRA down and let Congress return to the drawing board for something better.

One Of These Men Is Not Like The Others

All of them were born on March 11, but only one is a living U.S. Supreme Court Justice:

• Ralph Abernathy
• David Boies
• Joey Buttafuocco
• Sam Donaldson
• Didier Drogba
• Jesse Jackson, Jr.
• John McLean
• Rupert Murdoch
• Antonin Scalia
• Lawrence Welk

The one you've never heard of is either a French soccer player or a 19th century U.S. Supreme Court justice.

Happy Birthday to all.

Nate Silver Critiques The Chief Justice's Statistical Chops

Michigan's own statistical wunderkind Nate Silver comes to the defense, sorta, of Chief Justice Roberts' controversial use of statistics in oral argument questioning in Shelby County v. Holder, the challenge to section 5 of the Voting Rights Act. As a reminder, Section 5 requires that certain states, counties and townships with a history of racial discrimination get pre-clearance from the Department of Justice before making changing their voting laws. Here's the key exchange:

• CHIEF JUSTICE ROBERTS: Just to get the -- do you know which State has the worst ratio of white voter turnout to African American voter turnout?
• GENERAL VERRILLI: I do not.
• CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.
• GENERAL VERRILLI: Yes, Mr. Chief Justice.
• But Congress recognized that expressly in the findingswhen it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant --
• CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?
• GENERAL VERRILLI: I do not know that.
• CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.

In his FiveThirtyEight blog in the New York Times, Silver says:

As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts. First, are Mississippi and Massachusetts representative of a broader trend: do states covered by Section 5 in fact have higher rates of black turnout on a consistent basis? And second, what if anything does this demonstrate about the efficacy of the Voting Rights Act?

As to whether the Chief Justice misconstrued the data, Silver demurs:

If he meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious. However, the evidence does support the more modest claim that black turnout is no worse in states covered by Section 5. There don’t seem to be consistent differences in turnout rates based on whether states are covered by Section 5 or not.

The bigger potential flaw with Chief Justice Roberts’s argument is not with the statistics he cites but with the conclusion he draws from them.

Guarding The Litigation Floodgates, State and Nationally

A Duke law professor has tracked the number of times the U.S. Supreme Court has based a decision on the need to prevent a metaphorical "opening the floodgates."  The answer: 60 times, starting in 1908, with a big uptick in recent years. She has no objection to the "guarding-the-floodgates" decisions aimed at protecting executive branch officials and interpreting statutes to track Congress’s intended purpose. But she told the New York Times that she has concerns about the decisions that are based on judicial self-interest -- the fear that federal courts will be inundated with new cases and judges may have to work too hard to keep up with them:

In real life, floods are bad. But the metaphor of a flood in the context of litigation obscures more than it illuminates. If a legal theory is sound, is it a problem if it produces too much justice?

It turns out that the floodgates metaphor is also prevalent in Michigan's state jurisprudence, appearing almost 150 times in Michigan Supreme Court decisions since 1950, with the most appearances in the last 10 years and in the seventies.

Art: Noah and the Flood, Sistine Chapel, Michelangelo, 1509

Ms. Bader Ginsburg Conducts A Clinic On Persuasive Advocacy

Jeffrey Toobin's admiring profile of Justice Ruth Bader Ginsburg in The New Yorker (sub. req.) asserts that she is the Court's most accomplished litigator.  Sure, he says, Chief Justice John Roberts argued more cases before the Court but "most of them were of modest significance." Whatever.

What will resonate in the Toobin piece for those of us women who lived through the heyday of the "women's movement" (that is what it was called, right?) is this passage:

There is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance. Ginsburg, during the nineteen-seventies, argued several of the most important women’s-rights cases in the Court’s history. Her halting style in private never prevented her from vigorous advocacy before the bench. In those days, Ginsburg was a pioneer. When, as a forty-three-year-old Columbia Law School professor, she made a full argument before the Supreme Court, in 1976, Chief Justice Warren E. Burger stumbled when introducing her. “Mrs. Bader? Mrs. Ginsburg?” he said. (Female advocates, to say nothing of those with multi-part names, were a rarity in those days.) Later in the same case, Justice Potter Stewart made a similar mistake, calling her “Mrs. Bader.”

On one occasion, when she brought some female students to the courtroom with her, they urged her to insist that the Justices address her with the novel honorific Ms. “I decided not to make a fuss about it,” Ginsburg told me. “That wasn’t the reason I was there.”

She won.

This Is A Free-Speech-Free Zone

Who knew there was a federal statute banning "expressive activity" inside the Supreme Court building? From the BLT: "DOJ: Dismiss Suit Over Supreme Court Visitor's 'Occupy Everywhere' Jacket." 

 

Cert Granted in Another Michigan Plea Bargain Case

The U.S. Supreme Court granted cert today in a Michigan case, Burt v. Titlow (12-414), that may clarify the scope of another criminal case from Michigan, Lafler v. Cooper, decided last year. From SCOTUSBlog:

The Burt case involves a Troy, Michigan, woman, Vonlee Nicole Titlow, who was convicted of second-degree murder for the suffocation of her uncle, Donald Rogers, in August 2000.  While she was being held in jail after she had pleaded guilty under a plea bargain, but before she was sentenced, a sheriff’s deputy told her she should not have pleaded guilty if she believed she was innocent.

Titlow got a new attorney and claimed innocence, and the lawyer told her to withdraw her guilty plea, thus nullifying the plea bargain.  She was facing a sentence of seven to fifteen years on a manslaughter charge, and the attorney said that was too long.  Titlow was then tried on the more serious charge of murder, and was convicted of second-degree murder.  She was then sentenced to twenty to forty years in prison.

The Sixth Circuit Court ruled that her Sixth Amendment right had been violated by the attorney’s advice to withdraw the guilty plea, an action which led to her receiving the longer prison sentence for murder.   That is the issue that state officials challenged in their petition to the Supreme Court.  The key issue is the proof that must be offered to show that the accused would have accepted the offer if the advice from the defense lawyer had not been faulty.