Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon

Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon

Tuesday afternoon’s oral argument in Rehaif v. United States was not, as a formal matter, about the well-known “felon-in-possession” provision of 18 U.S.C. §§ 922(g) and 924(a)(2). It was supposed to be about a much less commonly charged provision, which makes it a federal crime to possess a firearm while in the United States illegally. On Tuesday, however, the justices seemed to operate on the premise that, if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily also require the government to prove that an ex-con with a firearm knew he was an ex-con.

A reversal of Hamid Rehaif’s conviction, then, would appear to have significant practical consequences. At argument, as expected, Justice Neil Gorsuch signaled his adherence to the view he held while on the U.S. Court of Appeals for the 10th Circuit — that the government is required to prove the defendant’s knowledge of his culpable status, whether as an unauthorized immigrant or an ex-con. Justice Brett Kavanaugh signaled that he too holds that view. Only Justice Samuel Alito showed clear agreement with the government’s position that such status elements should be treated the same as jurisdictional elements, which require no mens rea, or criminal intent.

Petitioner Hamid Mohamed Ahmed Ali Rehaif entered the United States on an F-1 student visa to study at the Florida Institute of Technology in August 2013. Under immigration law, he retained his student-visa status only so long as he remained enrolled as a full-time student. Eventually, he failed most of his classes, and the school academically dismissed him. Instead of leaving the country, however, he took up residence in a Florida hotel. One day he went to a nearby shooting range, renting a Glock to shoot for an hour and buying ammunition.

Rehaif was eventually convicted on two counts of possessing a firearm while being in the United States illegally, in violation of Sections 922(g)(5)(A) and 924(a)(2). The district court had refused to instruct the jury that the government was required to prove that Rehaif knew he was in the country illegally. The U.S. Court of Appeals for the 11th Circuit affirmed.

Assistant to the Solicitor General Allon Kedem faced withering fire from Gorsuch. “[H]ere we’re talking about the only thing that separates not just innocent conduct but constitutionally protected conduct … knowledge of the status, that I am a felon. As you well know, I had a case where the fellow was told by the judge that he was not a felon when he was convicted. And yet he was put in jail for 10 years afterwards because the government didn’t have to prove that he knew his status.” (Gorsuch was referring to United States v. Games-Perez, a 10th Circuit case from 2012.)

Later, Gorsuch pressed Kedem on Kedem’s claim that practical consequences weighed against requiring the government to prove the defendant’s knowledge of his status, given that such proof will be easy in the vast majority of cases. “There is a small but significant number of cases where, gee, it’s really going to be a colorable question and, therefore, a burden on the government,” said Gorsuch.

“So our argument is not that it’s a burden on the government,” replied Kedem. “Sometimes it will be, but usually it won’t. And, in any event, we’re not asking for your sympathy. Our point is that you risk shifting the focus of all felon-in-possession trials out of a concern for a category of cases that, if they exist, is extraordinarily small.”

“That does seem like you’re asking for our sympathy, with all respect,” said Gorsuch. “What is the practical consequence argument then if it isn’t the burden on the government?”

“It’s that it will be deeply confusing to the jury,” said Kedem. “Imagine you are a juror and you are at a felon-in-possession trial. And all of a sudden the judge, the witnesses, the lawyers, all start talking about a prior crime totally unrelated. And under the best of circumstances that sort of ‘trial within a trial’ can be deeply confusing.”

Kedem had an equally difficult time with Kavanaugh. “How is the defendant blameworthy if he or she truly thought that the status was lawful and then possesses the gun? Just focus on that question,” said Kavanaugh. “How is that person blameworthy?”

Kedem replied, “So I’m not sure that they are, but I think the more –”

“Well, okay, let me stop you there,” Kavanaugh broke in. “Then why should that person be subject to 10 years in prison?” Kedem responded with a question of his own, namely, whether Congress would have concerned itself with that small subset of cases. Kavanaugh agreed that the subset was small, but was not satisfied.

“[B]ut there are going to be those cases,” he continued, “the delta of cases where the defendant truly was mistaken about his or her status … and yet you would put that person in prison for up to 10 years.”

Justice Ruth Bader Ginsburg was clearly focused on the collateral effects of a reversal. Not far into the argument of Rehaif’s advocate, Rosemary Cakmis, Ginsburg said, “[A]s a practical matter I think I’m right that most of these possession cases are felon-in-possession cases.”

When Cakmis agreed, Ginsburg said, “And if that’s right and you prevail, then how many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said … I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.”

“[H]abeas is not nearly as simple to navigate as a criminal proceeding,” Cakmis responded. “And once you reach the land of habeas, you have cause and prejudice that have to be shown for procedural default. It’s even harsher than harmless error when you get into the habeas world. And so the number of people who might want to ask for relief might be more, but there is only a small but significant number of people out there who actually had a genuine dispute.”

Ginsburg asked essentially the same question of the government’s lawyer, Kedem. “I would like to know your view of — let’s just say we would reverse — the collateral review issue that I asked about.”

“So the government’s view is that under Bousley [v. United States], the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status,” replied Kedem.

Although the felon-in-possession provision dominated Tuesday’s hearing because the government uses it so much more often than the unauthorized-immigrant provision, there was some discussion of a politically salient hypothetical involving immigrants. When Alito asked Cakmis whether she really thought Congress meant to exempt unauthorized immigrants who “had every reason to know” they were in the country illegally but somehow still did not actually know, Cakmis brought up the DREAM Act.

“[T]ake, for example, the dreamers, children who come into this country with their parents illegally, live here all their lives and think they’re law-abiding citizens, only to find out later in adulthood that they never were law-abiding citizens. … [I]f that person who had no idea he was here illegally or unlawfully possessed a gun, he would be subject to 10 years in prison,” she said.

Almost as soon as Kedem began his argument, Justice Sonia Sotomayor brought that hypothetical right back up. “What do you do with that dreamer example of a student who got a visa from a certified institution and all of a sudden, unbeknownst to him or her, the school is decertified? And so they’re no longer in status. … [D]o you think Congress intended to include those innocent people as well?”

“I acknowledge that application of the government’s test in certain hypothetical examples that we could come up with would produce harsh results,” Kedem stated. “And perhaps you’re not comforted by the fact that this provision is applied many thousands of times every year, and no one has been able to identify an example like the type you’ve raised or anything close to it.”

Kedem later responded in much the same way to Justice Stephen Breyer’s hypothetical of a student who unwittingly overstayed his visa and yet possessed a gun. “Respectfully, Justice Breyer, if you reinterpret the mens rea for every 922(g) offense out of concern for that hypothetical category of people, that is worse than letting the tail wag the dog. That is letting the tail wag the dog where the dog is massive and the tail is tiny and largely hypothetical.”

Editor’s Note: Analysis based on transcript of oral argument.

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Event announcement: Home stretch panel in Washington, D.C.

Event announcement: Home stretch panel in Washington, D.C.

On April 25 at 9 a.m. EST in Washington, D.C., the National Press Club will host the sixth annual “Home Stretch at the Supreme Court” panel discussion. Panelists include Kristen Clarke, William Jay, Allison Riggs and Brianne Gorod; Ari Melber will moderate and Elizabeth Wydra will deliver opening remarks. More information, including RSVP instructions, is available here.

The post Event announcement: Home stretch panel in Washington, D.C. appeared first on SCOTUSblog.

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Live blog of opinions (Update: Completed)

Live blog of opinions (Update: Completed)

We live-blogged as the Supreme Court released its opinion in Lamps Plus Inc. v. Varela. The transcript of the live blog is available below and at this link. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

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Practice Pointer: Digging into DIGs

Practice Pointer: Digging into DIGs

As explained by Ronald Mann, the Supreme Court on Tuesday dismissed as improvidently granted the case of Emulex Corp. v. Varjabedian. In this post, I spend a bit more time speculating about why the court reached that decision and pondering whether there are any insights to be drawn from the decision that may be of help to practitioners in future cases. [Disclosure: I wrote an amicus brief in the case in support of the respondents, but that brief did not address any of the questions at issue in this post.]

What happened in this case

The Supreme Court granted certiorari in this case to decide the question: “Whether the Ninth Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on a negligent misstatement or omission made in connection with a tender offer.” This carefully worded question from the cert petition encompasses two distinct issues: (1) whether there is a private right of action to enforce Section 14(e) at all; and (2) if so, whether negligence suffices to violate the provision. The petitioners had argued only the second point before the U.S. Court of Appeals for the 9th Circuit panel (although it arguably raised the first issue in its petition for rehearing en banc). And only the second question was the subject of a circuit conflict. The petitioners nonetheless attempted to craft a question presented broad enough to encompass the existence of the private right of action as well, presumably because the Supreme Court’s modern precedents are very skeptical about inferring such private rights of action.

The body of the cert petition then urged the Supreme Court to grant review on the ground that there is a split over the negligence standard. But in its merits argument, the petitioners also pointed to the court’s modern implied-right-of-action cases, ultimately telling the court: “This Court can decide this case—and reverse the decision below—on the assumption that the lower courts have properly inferred a private right of action under Section 14(e) for intentional violations. But if it believes that any inferred cause of action that exists under Section 14(e) may be applied to negligent behavior as well, then it should reexamine whether a private right of action can be inferred at all under Section 14(e).”

The respondents objected that not only had the petitioners failed to raise an objection to the private right of action before the 9th Circuit panel, they had (according to the respondents) affirmatively said they did not dispute that it existed.

The Supreme Court granted certiorari anyway. On the merits, the petitioners disaggregated their arguments more distinctly, arguing first that there should be no private right of action for negligence, and then separately that there should be no private right of action at all. The respondents complained again that the latter argument had not been preserved.

In what may have been a decisive development, the federal government filed a brief that parted ways with both sides. It agreed with the respondents that Section 14(e) can be violated through negligent conduct. But it agreed with the petitioners that there should be no private right of action to enforce the provision. The government’s bottom line, then, was that the Securities and Exchange Commission can sue for negligent violations of 14(e), but private plaintiffs cannot sue at all.

At oral argument, several justices (particularly Justice Sonia Sotomayor) picked up on the respondents’ preservation objection. (A cynic might suspect that the liberal justices’ focus on preservation was affected by their view of the probable outcome if the court reached the private-right-of-action question.) Beyond that, the argument was dominated by discussion of the implied-right-of-action question, with very little discussion of the negligence standard.

A few days later, the court voted to dismiss the case as improvidently granted (“DIG” to the inside baseball crowd).

The Supreme Court’s DIG practice

The Supreme Court rarely explains its reasons for DIGing a case. But the practice seems to arise mostly in three circumstances.

First, cases are most commonly DIGed when the court discovers something after granting certiorari that makes the case a poor vehicle for resolving the question it had taken the case to answer. For example, the facts may not actually present the question, there may be a jurisdictional problem or it may come to light that an argument wasn’t properly preserved.

In a few rare cases, the Supreme Court has also DIGed cases in response to a perceived bait-and-switch. This happened a few terms ago in Visa Inc. v. Osborn, an antitrust case in which the court took the unusual step of explaining its decision to DIG the case, noting that “having persuaded us to grant certiorari on [one] issue, however, petitioners chose to rely on a different argument in their merits briefing.” [Disclosure: Goldstein & Russell was among the counsel for the respondents in the case.] But in other cases, the court has simply refused to consider the new arguments and has resolved the question it granted certiorari to decide.

Finally, there have been a handful of instances in which it appears that the Supreme Court DIGed a case simply because it was unable to reach a consensus and apparently believed that DIGing the case would be better than issuing a fractured opinion with no controlling rationale.

Why DIG this case?

At first blush, one might think that the Supreme Court DIGed the case because of the preservation problem. That issue was discussed at length at oral argument. But the respondents had pointed out at the cert stage that the petitioners had not made the private-right-of-action argument to the panel below. At least four justices voted to take up the case anyway. And it is generally believed that in order to DIG a case, the court requires the vote of at least one of the justices who originally voted to grant the petition (to prevent a situation in which four justices vote to take a case, only to have the other five DIG it).

It is possible that one of the justices who originally voted to grant the petition had second thoughts after further briefing on the waiver question. But the merits briefing and oral argument did not really shed much additional light on that question.

I also do not think that this is a case in which the Supreme Court believed that the petitioners had done a bait-and-switch. Although they may have pressed their objection to the implied-right-of-action more thoroughly and distinctly in their merits brief, the petitioners had at least previewed their implied-right-of-action argument at the cert stage.

I think it is more likely that the preservation issue interacted with other disagreements among the justices in a way that risked preventing the Supreme Court from reaching a majority rationale for any result in the case. Based on the oral argument, I expect that three or four of the more liberal justices refused to reach the private-right-of-action question on preservation grounds. Perhaps Justice Samuel Alito had reservations about this as well (He asked a skeptical question about preservation to the government’s lawyer.). And without five votes to reach the private-right-of-action question, the case could get very messy.

Specifically, even if there were five justices who all agreed that the only question before them was the negligence question, if those justices disagreed about the answer (as seemed possible from oral argument), they would need one or more of the remaining four justices to weigh in on the negligence issue in order to resolve that question authoritatively. But it is entirely conceivable that none of them would be willing to do so, given that it appears most likely that every justice willing to reach the private-right-of-action question (the conservative justices minus Alito) would have resolved the case on the ground that no such action exists.

To be sure, it would be possible for such a justice to assume that there is a private right of action and take a position on what state of mind that private suit should have to prove. But a justice could well resist that assumption, either because of a steadfast refusal to acknowledge the private right of action or because of concerns about how the court’s decision might affect government enforcement actions by the SEC. That is, a justice who accepted the government’s position – i.e., that there is no private right of action but that the SEC is only required to prove that a defendant acted negligently  – could well be reluctant to sign on to an opinion holding that a presumed private right of action required only negligence. That would expand a private right of action the justice believed should never have been recognized in the first place, because the majority of circuits presently require proof that a defendant acted with scienter – that is, with intent to defraud — a higher standard than negligence. And it could take years before the court had a chance to clear things up in a case properly presenting the private-right-of-action question.

All this is, of course, rank speculation on my part. But given the court’s traditional refusal to explain its DIGs, speculation is the best we can do.

Practice takeaways

Are there any lessons from all of this for practitioners?

Start with the respondents. I think that the respondents did exactly what they were supposed to do: They raised the waiver objection clearly and forcefully in their brief in opposition to certiorari, and then again on the merits (wisely not giving up on the argument just because it was apparently rejected at the cert stage). Making a strong argument on the merits of the negligence question also may have avoided the prospect of a bare majority of justices resolving the case on that question alone.

What about the petitioners? Of course, in hindsight, one could say that the petitioners should have made the private-right-of-action argument to the 9th Circuit panel. It is always a good idea to look over the horizon at arguments one might want to raise in the Supreme Court, even if they are precluded by circuit precedent. That said, I am very reluctant to criticize counsel for failing to litigate a case with the Supreme Court in mind, given how unlikely it is that the case will ever end up there. That’s particularly true in this case – it is hard to fault petitioners’ counsel for not challenging what was clearly established law not only in the 9th Circuit but across the country.

In addition, although parties regularly spar over this question in their cert briefing, I’m not aware of the Supreme Court’s having given any clear guidance on what is required to preserve an argument when established circuit precedent forecloses it. (If any readers know of something, let me know and I’ll update this post.) The usual rationales for requiring exhaustion – that it gives the lower court a chance to avoid a mistake and may permit further percolation of an issue that would benefit the Supreme Court – have little application. The panel will have no authority to avoid the “mistake” already committed by prior circuit precedent and, as a result, will almost never waste time addressing the issue in any detail.

Is there something the petitioners could have done differently in the petition for certiorari? The question presented deftly combined the negligence and private-right-of-action issues into a single question. I don’t think it would have been wise to ask only whether there is a private right of action, or even to list it as a separate question – because there was no circuit conflict on that question, doing so would risk denial (if it were the only question) or the court’s granting cert only on the negligence question (thereby taking the private-right-of-action argument off the table for the merits briefing).

The body of the petition wisely, I think, made the negligence question the centerpiece (again, because this is the issue on which there was a circuit conflict), while also working in objections to the recognition of a private right of action as a reason for rejecting negligence. Perhaps some justices objected when the merits brief then more clearly disaggregated the two issues into alternative grounds for reversal. But that is hardly the kind of stretch that led to the bait-and-switch DIGs in some other cases. I would have expected, at most, that the court would simply refuse to consider the alternative ground, which is the far more common response. But one could come away from this case thinking that divergences between the merits arguments in the cert petition and merits brief are riskier than many (including me) had previously thought.

Should the petitioners just have forgone any arguments about the private right of action, then? Of course, with 20-20 hindsight, the answer is probably yes. But that was hardly obvious at the time the decisions were made. For one thing, one could reasonably conclude that the private-right-of-action argument was materially stronger on the merits than the petitioners’ objection to the negligence standard. In similar circumstances, the court has reached out to decide such antecedent questions, even though they were not raised below. And the petitioners reasonably could have thought that if the court believed that the question had not been properly preserved, it would just refuse to consider the question, not deny cert or DIG the case. So there was a big upside and a presumably small downside to raising both issues.

At the same time, for precisely the reasons that may have contributed to the DIG in this case, some justices may have been reluctant to grant a petition to decide a question (what state of mind is required for a Section 14(e) private suit) that depended on what the justice viewed as a plainly incorrect premise (that there is a private right of action to begin with). Putting both questions into the case gave those justices the option to decide the antecedent question if they wanted to, and may have made them more likely to agree to cert.

I suspect that what did the petitioners in was the government’s post-grant merits amicus brief, which may have scared off some justices from opining on the state-of-mind requirement for a hypothetical private right of action. I have not looked to see if the SEC made that position public before the filing of the amicus brief in this case (I doubt it.). But if that position had been known, it might have changed the cost-benefit analysis for the petitioners.

At the end of the day, the lesson may simply be that crafting a question presented and selecting arguments to make in a cert petition and on the merits is a delicate, risky business that sometimes has no clear right answers.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in Emulex. That brief did not address the issues discussed in this post.]

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Opinion analysis: The meaning of consent to class arbitration

Opinion analysis: The meaning of consent to class arbitration

Of the three arbitration cases on the Supreme Court’s docket this term, two were decided unanimously in decisions issued relatively soon after argument. That trend did not hold for Lamps Plus v. Varela: The court split 5-4, with the more conservative justices rejecting the application of the common-law rule that ambiguous contracts are construed against their drafter when the contract in question is an arbitration contract and the ambiguity concerns whether plaintiff-employees may arbitrate on a class basis.

The underlying claim in Lamps Plus arose from a data breach that led to the disclosure of about 1,300 employees’ tax information. Employee Frank Varela filed a class action in federal district court, and Lamps Plus moved to compel individual arbitration based on the arbitration agreement that Varela signed when he started at the company. The district court agreed that Varela could bring his claim only in arbitration, but also held that he could arbitrate on a class-wide basis; it then dismissed his complaint. The U.S. Court of Appeals for the 9th Circuit affirmed, concluding that the arbitration agreement was ambiguous about whether it allowed class arbitration, and then applying the contra proferentem doctrine – a common-law rule that contract ambiguities should be construed against the party that drafted the contract, especially when the other party did not have an opportunity to help with the drafting.

Although the main issue in the case was whether the lower-court’s approach to construing the arbitration agreement was proper, there was also a preliminary question about whether the 9th Circuit, and by extension the Supreme Court, had jurisdiction over Lamps Plus’ appeal. Writing for the majority, Chief Justice John Roberts first held that the 9th Circuit had jurisdiction under a provision of the Federal Arbitration Act that allows a party to appeal “a final decision with respect to an arbitration.” That was so even though Lamps Plus both moved for arbitration and appealed the order granting it; usually, a party cannot appeal from a win, but Roberts wrote that the district court’s order was not really a win because “Lamps Plus did not secure the relief it requested” – individual, rather than class-wide, arbitration.

Turning to the meaning of Lamps Plus’ arbitration agreement, Roberts first invoked three principles at the core of the court’s modern arbitration caselaw. First, parties must agree to arbitrate, and the FAA requires courts to enforce arbitration agreements according to their terms. Second, courts usually interpret arbitration agreements by applying state contract law, but the FAA pre-empts state law that treats arbitration contracts differently from other contracts. Third, there is a “‘fundamental’ difference between class arbitration and the individualized form of arbitration envisioned by the FAA.”

The last of those principles was key to the court’s 2010 decision in Stolt-Nielsen v. AnimalFeeds Int’l Corp., which held that arbitrators cannot order class arbitration when the arbitration agreement is silent as to the use of class procedures. Relying on Stolt-Nielsen, the Lamps Plus majority held that ambiguity, like silence, “does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice the principal advantage of arbitration.’” This conclusion relied in part on the majority’s skepticism about class arbitration, which the majority deemed more expensive and cumbersome than individual arbitration – a conclusion that is uncontroversial if one compares Varela’s own individual arbitration to class arbitration, but which is not so clear if one instead considers the expense and effort involved in 1,300 individual arbitrations as compared to one class arbitration involving 1,300 class members. (Of course, not all 1,300 potential class members will pursue individual arbitration.) Additionally, the court rejected the application of contra proferentem, both because it viewed that doctrine as a reflection of “public policy” rather than of the contracting parties’ intentions, and because of the doctrine’s potential to undermine individual arbitration.

In addition to Roberts’ opinion for the court, Justice Clarence Thomas filed a concurring opinion, and each of the four more liberal justices wrote a dissent. Thomas first suggested that Lamps Plus’ arbitration agreement unambiguously required individual arbitration, and he then questioned the court’s approach to implied pre-emption. Thomas nonetheless joined Roberts’ opinion “because it correctly applies our FAA precedents.”

Justice Elena Kagan wrote the main dissent. After positing that Lamps Plus’ arbitration agreement unambiguously allowed class arbitration, Kagan offered a full-throated defense of contra proferentem, focusing on the role that the FAA preserves for state contract law that does not “discriminate[] against arbitration agreements.” She reasoned that resolving ambiguities against a contract’s drafter is “as even-handed as contract rules come,” because, for example, Lamps Plus’ contract could have been interpreted as calling for individual arbitration either if Varela had drafted the contract or if it were Varela who sought individual arbitration. Further, she added that, as the drafter of the contract, Lamps Plus could have avoided class arbitration simply by being clear about its intentions.

Justice Sonia Sotomayor’s dissent criticized the majority for failing to conclude that the arbitration agreement was actually ambiguous before addressing how ambiguity should be resolved. And Justice Ruth Bader Ginsburg took aim at the majority’s view that employees’ or consumers’ consent to arbitrate is meaningful when it is required as a condition of being hired or engaging in a transaction. The resulting proliferation of arbitration agreements, Ginsburg continued, has eroded workers’ and consumers’ abilities to vindicate their rights. Finally, Justice Stephen Breyer focused on the majority’s jurisdictional holding, writing that when a district court orders arbitration, “there should be no appellate interference with the arbitral process unless and until that process has run its course.”

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Argument analysis: Justices close out 2018 term with a spirited discussion about sanctions for violating bankruptcy discharge

Argument analysis: Justices close out 2018 term with a spirited discussion about sanctions for violating bankruptcy discharge

It was a far cry from the census case or deep disagreement about proper methods of capital punishment, but the justices heard oral argument yesterday afternoon in Taggart v. Lorenzen, concluding the argument calendars for October Term 2018.

As explained in my preview, this case involves the discharge that a debtor receives at the conclusion of a bankruptcy proceeding, which excuses the debtor’s obligation to pay the debts that the discharge covers and bars creditors from later efforts to collect those debts. A creditor that attempts to collect a debt that has been discharged in bankruptcy faces the risk that the bankruptcy court will hold the creditor in contempt. Remarkably, the Supreme Court has never addressed the standard for deciding when a contempt sanction is appropriate. Taggart presents that question, asking whether a creditor can be held in contempt for violating the discharge even if it believed in good faith that the discharge did not apply to its efforts to collect the debt.

The particular dispute here is quite involved, but for purposes of the argument a few details should suffice. All agree that the creditors attempted to enforce a debt against Bradley Taggart after his bankruptcy; the justification is a lower-court doctrine that when a debtor “returns to the fray” of litigation with the creditor, the discharge no longer applies. In this case, the state courts in which the litigation occurred concluded that the “return to the fray” doctrine applied, which would make the creditors’ activity permissible. The federal courts, though, ultimately disagreed: The U.S. Court of Appeals for the 9th Circuit concluded that the creditors’ activity was wrongful, but that the creditors could not be held in contempt because they believed in good faith that the discharge did not apply.

From the moment Daniel Geyser, representing Taggart, began his argument, discussion was dominated by a group of justices who could not accept the idea that a court could hold a creditor in contempt if the creditor reasonably believed its conduct did not violate the discharge. Justice Brett Kavanaugh made the point most emphatically and at greatest length. As he put it:

[T]he statute says that the [discharge] order operates as an injunction, and the traditional rules of contempt for injunctions suggest that a reasonable, good faith belief that you weren’t violating the order is sufficient. So why shouldn’t that just follow squarely from the text referring to “operates like an injunction.” ….

[I]t’s a severe sanction. So before someone’s found to be liable … you would want some clear intent, and if they had a reasonable, good faith belief that they weren’t violating it, that’s not usually something that we’d say “tough” and still impose the sanctions.

That sentiment was expressed widely across the bench. Justice Samuel Alito, for example, asked Geyser if he could offer any “justification for holding somebody in contempt for doing something that two state courts have held was not a violation?” Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch seemed to react in the same way.

That is not to say the argument was entirely one-sided. There was a lone voice on the other side of the matter – Chief Justice John Roberts, who seemed to see the case entirely from the perspective of the bankrupt unable to get free of creditors even after a bankruptcy proceeding. For Roberts, it made sense that a creditor pursuing a bankrupt should seek guidance from the bankruptcy court if it has any doubt about the coverage of the discharge. For example, he interrupted the argument of Assistant to the Solicitor General Sopan Joshi, arguing for the federal government as a “friend of the court” on behalf of neither party,  to comment:

I appreciate that you’re representing the largest creditor in the country, but I don’t see why it is so hard for a creditor, if he has any doubt, to go … get a clean ticket, a clean bill of health, instead of … going after the newly released debtor who … is supposed to get a fresh start and all of a sudden there are the same people who were … hounding him before.

Again, talking with Nicole Saharsky, who represented the creditors, Roberts acknowledged that the “safe-harbor” rule he supported would “have some chilling effect on creditors, and it doesn’t surprise me that creditors don’t like that.” But that did not trouble him at all, he explained, because of the salutary effects of the rule: “[I]t seems to me perfectly reasonable to have them bear the risk – have them make a careful choice.”

After the argument, several things seem clear. For one thing, it seems clear that none of the justices would affirm the reasoning of the 9th Circuit that a creditor is protected as long as it has a subjective belief that the discharge does not apply, even if that belief is unreasonable. The justices spent a long time debating what the standard for a “reasonable” belief should be, and that seems likely to be the approach the majority will take, which presumably would result in a remand for the court of appeals to apply the new standard.

Also, there is a pretty good chance the court will be divided. Roberts could simply go along with a majority, but his strong views at argument suggest he would make the effort to document a dissent.

Editor’s Note: Analysis based on transcript of oral argument.

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Thursday round-up

Thursday round-up

Yesterday the court ruled 5-4 in Lamps Plus Inc. v. Varela that the Federal Arbitration Act bars interpretation of an arbitration agreement under state law that would allow class arbitration based on general language commonly used in arbitration agreements. Greg Stohr reports at Bloomberg that the “ruling said courts shouldn’t allow class arbitration unless an agreement clearly authorizes that type of proceeding.” For The Wall Street Journal, Jess Bravin reports that “[t]he case is the latest in a string of decisions that have given the 1925 Federal Arbitration Act wide powers to displace traditional legal remedies, prioritizing business interests in reducing liability over providing redress to consumers and employees alleging injuries.” Richard Wolf reports for USA Today that “the court’s four liberal justices were so incensed that they each wrote separate dissents totaling 31 pages.” Additional coverage comes from Tony Mauro at, Andrew Chung at Reuters and Adam Liptak for The New York Times. Ross Runkel discusses the opinion at his eponymous blog. At CPR Speaks, Echo Wang and Russ Bleemer observe that the decision “demonstrates the court’s profound conservative-liberal split.”

In an op-ed for The New York Times, Linda Greenhouse looks at the court’s decision Monday to review three cases that ask whether federal law protects employees from discrimination on the basis of sexual orientation or transgender identity, suggesting that the justices’ rephrasing of the question the employer had asked the court to decide in one of the cases indicates that “there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.” At Rewire.News, Imani Gandy explores the implications for the cases of a 1989 case, Price Waterhouse v. Hopkins, that, she writes, “barred gender stereotyping—discrimination based on someone failing to act and appear according to societal expectations defined by gender.”


  • Amy Howe reports for this blog, in a post that was first published at Howe on the Court, that yesterday the court refused to block last night’s execution of John William King, who had been sentenced to death for “a gruesome crime that spurred tougher hate-crime laws.”
  • Evan Lee has this blog’s coverage of Tuesday afternoon’s argument in Rehaif v. United States, which asks whether, to convict defendant in U.S. illegally for violating a federal gun-possession law, prosecutors must show that defendant knew he was in the country illegally.
  • At the National League of Cities’ CitiesSpeak blog, Lisa Soronen writes that, after Tuesday’s oral argument in Department of Commerce v. New York, “it seems likely the 2020 census will contain a question about citizenship.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, “Hans von Spakovsky joins Elizabeth Slattery to talk about the Title VII sex discrimination cases coming to SCOTUS next term and the oral argument in a case challenging the Trump Administration’s plan to add a citizenship question to the 2020 census.”
  • At The George Washington Law Review’s On the Docket blog, Richard Pierce explains why “[i]t would be easy to interpret the six-Justice majority opinion in Biestek v. Berryhill,holding that an administrative judge in a social security disability benefits case can rely on testimony by a vocational expert that applicant can do “other work,” even if the expert does not provide the data she used to form her opinion, “as an invitation to agencies to make important decisions based on junk science, i.e., opinions of putative experts that are not supported by reliable data or analysis.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] Thank you!

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Afternoon round-up: Oral argument in Department of Commerce v. New York

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This morning, the justices heard 80 minutes of argument in one of the term’s highest-stakes cases, Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census. Amy Howe analyzed the argument for this blog, in a post that originally appeared at Howe on the Court, reporting that “the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.”

Additional early coverage comes from Hansi Lo Wang and Nina Totenberg of NPR, Pete Williams of NBC News, Andrew Chung and Lawrence Hurley of Reuters, Ariane de Vogue of CNN, Mark Sherman of AP, Robert Barnes and Mark Berman of The Washington Post, David Savage of the Los Angeles Times, Richard Wolf of USA Today, Greg Stohr of Bloomberg, Devin Dwyer of ABC News, Brent Kendall and Jess Bravin of The Wall Street Journal, Shannon Bream and Bill Mears of Fox News, Marcia Coyle of The National Law Journal and Adam Liptak of The New York Times.

Early commentary comes from Ruthann Robson for the Constitutional Law Prof Blog, who notes that Justices Sonia Sotomayor and Elena Kagan characterized the decision to add the question as a “solution in search of a problem.”

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A “view” from the courtroom: Counting to five

A “view” from the courtroom: Counting to five

Today is the oral argument in one of the term’s biggest cases, Department of Commerce v. New York, about the Trump administration’s efforts to add a citizenship question to the 2020 census. It is also a rare day for afternoon arguments, and rarer still because there will be two of those.

Solicitor General Noel G. Francisco at lectern (Art Lien)

When the court squeezed the census case into its already announced April calendar, it made the wise decision to push the two cases that were originally set for this morning into the afternoon. Thus, after the 80-minute argument this morning, everyone gets a nice break before the court returns for Mitchell v. Wisconsin, about whether a state law authorizing a blood draw from an unconscious motorist requires a warrant; and Rehaif v. United States, about a “knowingly” provision of a federal firearm statute.

In honor of the census question, I have undertaken to conduct an “actual enumeration” of the population of the courtroom this morning. It’s not a simple task, because I am the only enumerator and I don’t have the benefit of distributing any census forms. In fact, I have to do the best I can from my seat in the press section. Just as with the actual count, there are comings and goings that complicate the task.

Let’s start with the bar section. My rough count is that 70 seats are filled, almost all those available, and that includes the four advocates who will argue the census case and their associates at the counsel tables. A few stragglers will be shown to seats in the bar section after the arguments begin, so I’ll set the total at 76.

Next up is the VIP section, which has three rows of benches and one row of cushy chairs to the right of the bar section (looking at the bench). Joanna Breyer, the wife of Justice Stephen Breyer, and Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, are among the 18 people I count in that section.

There are a number of court personnel, including the marshal, the clerk, marshal’s aides, at least a couple of employees who make sure the sound and recording system are running smoothly, and a few others. These number about 12 people. There are an ample number of Supreme Court police officers, but for reasons of security I won’t specify how many.

Big cases like this one also draw a number of the justices’ law clerks. Because I can’t see how many are filling their alcoves on the south side of the courtroom, I’ll impute that there are at least 12 of them here this morning. The others are all back in chambers working on opinion drafts and planning the end-of-year skit, I’ll presume.

Then there is the public section of the courtroom, which includes numerous long benches, some side chairs and three alcoves filled with smaller chairs. My count is that some 200 people are in the public gallery.

Normally a case like this might draw several members of Congress and officials from the administration. Secretary of Commerce Wilbur Ross, whose actions pushing for the addition of the citizenship question are at the center of the case, is evidently not here. Later today, he will tweet a shoutout to a Census Bureau report of an increase in new residential sales for March.

However, John Gore, the principal deputy assistant attorney general, who figures prominently in the so-called administrative record of the case, is here.

Congress is in recess this week, which may account for the lack of spectators wearing House member pins. But Rep. Carolyn Maloney, D-N.Y., is here, and she will join New York state Attorney General Letitia James at the press microphones on the court’s plaza after the argument.

At 10 a.m., the census count in the courtroom increases by nine, as the justices take the bench.

I have saved my enumeration of the press section for last, because the court has indicated the possibility of opinions today. On such days, even when a big case is being argued, several reporters will remain in the press room to learn which opinion or opinions are being released. If it is something big, they may elect to skip the argument altogether. That won’t be necessary today, though, because Chief Justice John Roberts has just opinion to announce.

“In case 18-459, Emulex Corporation versus Varjabedian, the writ of certiorari is dismissed as improvidently granted,” Roberts says. He then turns to Clerk of the Court Scott Harris for routine bar admissions. Some seven or eight reporters who were downstairs quickly make their way up to the courtroom, and most roll their eyes as they take their seats. It’s a blessing that reporters don’t have to write about a big opinion on such a busy day for arguments. But it seems that a DIG like this one could have been announced on a different day.

(Perhaps, though, a more substantive opinion got pulled at the last minute. Later Tuesday, the court announces the possibility of opinions of Wednesday, which had not been announced as a possible opinion day after last Thursday’s conference.)

So with the press section now full, I count 70 reporters present. And the result of the enumeration of the entire courtroom is 397 people, with no inquiry as to whether they are U.S. citizens or not. This does not include the groups of a dozen or so spectators who shuffle in and out throughout the argument as part of the three-minute rotating line. I fully acknowledge the possibility, even the likelihood, of an undercount.

As to the argument itself, Amy Howe has the main account (and on such a tight deadline between the morning and afternoon arguments!).

The court’s liberal bloc will spar repeatedly with U.S. Solicitor General Noel Francisco over the commerce secretary’s push for the citizenship question.

Justice Elena Kagan, a former solicitor general herself, tells Francisco that “your briefs are extremely well done. … But a lot of your arguments just do not appear in the secretary’s decision memo. And the fact that SG lawyers can come up with 60 pages of explanation for a decision, that’s all post hoc rationalization.”

A short time later, Francisco says, “Your honor, I’m tempted to pocket the compliment and sit down, but I won’t do that.”

Two of the court’s conservatives, Kavanaugh and Justice Neil Gorsuch, ask about the long history of some use of a citizenship question, which was first asked on the 1820 census, as well as practices in other countries.

“What do we do with the history and the fact that this question” was on the main census form for “a long time,” Gorsuch asks.

Kavanaugh says, “The United Nations recommends that countries ask a citizenship question on the census. And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question.”

Francisco makes the same point about the UN in his brief, which is more respect than the international organization usually gets from U.S. conservatives.

The three advocates who argue on behalf of the challengers—New York state Solicitor General Barbara Underwood (a former acting U.S. solicitor general under President Bill Clinton), Dale Ho of the American Civil Liberties Union, and Douglas Letter, representing the U.S. House of Representatives as an amicus, do so ably, but it is uncertain they make much headway with the court’s conservatives.

The most explosive exchange comes toward the end of argument, as Francisco takes to the lectern for his rebuttal.

He suggests that challengers’ positions on standing are “effectively empowering any group in the country to knock off any question on the census if they simply get together and boycott it.”

When Justice Sonia Sotomayor seeks to question him on this, he keeps speaking, as he did with some of her other questions earlier in the argument.

The chief justice, who has been perceived as annoyed by Sotomayor’s frequent questions during a lawyer’s rebuttal time, feels compelled to cut off Francisco by saying, “Justice Sotomayor.”

“Are you suggesting that Hispanics are boycotting the census,” she asks. “Are you suggesting they don’t have, whether it is rational or not, that they don’t have a legitimate fear?”

Not at all, Francisco says. It’s just that the challengers’ view could lead to groups feeling empowered to “knock off any question of the census that they found particularly objectionable.”

“Mr. Chief Justice, unless the court has further questions,” Francisco says.

“We’re all done,” Roberts says breezily before adding the more traditional, “The case is submitted.”

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Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census

Argument analysis: Divided court seems ready to uphold citizenship question on 2020 census

The Supreme Court heard oral argument this morning in the dispute over the Trump administration’s decision to include a question about citizenship on the 2020 census. The federal government says that the Department of Justice wants data about citizenship to better enforce federal voting rights laws. But the challengers in the case counter that asking about citizenship will lead to an inaccurate count, because households with undocumented or Hispanic residents may not respond. After roughly 80 minutes of often tense debate, the justices seemed divided along ideological lines, with the conservative justices appearing ready to uphold the use of the question.

Ross announced the decision to include the citizenship question last year. The question is not entirely new to the census: It was generally included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000.

But a group of state and local governments, along with several civil rights groups, went to federal court to challenge Ross’ decision. In January, the court ruled that the decision violated the federal law governing administrative agencies and barred the government from including the question on the upcoming census. The Supreme Court agreed to take up the case right away, without waiting for a federal appeals court to weigh in, to resolve the issue once and for all by June, when the government needs to start printing millions of census questionnaires.

Arguing for the federal government today, U.S. Solicitor General Noel Francisco began by stressing that the citizenship question has been asked on the census for nearly 200 years. But he was quickly interrupted by Justice Sonia Sotomayor, who pushed back. It hasn’t been included in the census sent to all households since 1950, she reminded Francisco, because every secretary of commerce and every statistician has recommended against asking it.

Solicitor General Noel G. Francisco (Art Lien)

The other liberal justices then took turns with Sotomayor peppering Francisco with questions, often diving deep into the details of the case. Some justices focused on Ross’ decision to include the question even though the Census Bureau had told him that asking the question would lead to fewer responses and could make information about citizenship worse, rather than better.

Francisco responded that Ross had fully acknowledged both the advantages and disadvantages of asking the citizenship question on the 2020 census. The question before the court, he stressed, really boils down to whether Ross’ decision to bring back the citizenship question was reasonable – which it was.

Sotomayor was again skeptical, telling Francisco that the government’s rationale amounted to plucking out one sentence from the record and relying on it, while ignoring everything else that suggests that adding the question would reduce the accuracy of the data.

Justice Elena Kagan echoed Sotomayor’s concerns. The secretary of commerce can deviate from the Census Bureau’s experts, she conceded, but he needs a reason to do so. “I don’t see any reasons,” Kagan told Francisco. Instead, Kagan continued, it seemed more as though the Department of Justice’s need for the citizenship data was “contrived”; lots of civil rights officials at the Department of Justice, Kagan observed, have never asked for this data.

Arguing on behalf of the state and local governments challenging the decision to add the citizenship question, New York Solicitor General Barbara Underwood began by complaining that Ross had decided to add the citizenship question even though the documents on which he relied to make that decision contained strong evidence that doing so would lead to an inaccurate count. All the reasons that Ross has cited to justify adding the question, Underwood asserted, are false.

New York Solicitor General Barbara D. Underwood (Art Lien)

Chief Justice John Roberts pushed back, asking Underwood whether having the citizenship data wouldn’t affect enforcement of the federal Voting Rights Act. Isn’t this critical data, Roberts asked?

Justice Brett Kavanaugh noted that the United Nations recommends including a citizenship question. Not only has the United States often asked the question, Kavanaugh stressed, but other countries – including Spain, Germany, Mexico, Canada and Ireland – also ask about citizenship. Does this international and historical practice affect how we look at the decision to add the question? Kavanaugh queried.

Underwood responded that the information provided by the question is “very useful for a country to have.” But should it be included on the census, she countered, whose principal purpose is to count people, knowing that it will reduce response rates?

Justices Samuel Alito and Neil Gorsuch, however, pushed back against the idea that including the citizenship question, standing alone, was the root cause of a lower response rate. Citizens and noncitizens are different in a lot of ways other than whether they have citizenship, Alito observed: For example, there may be socioeconomic differences between a household with citizens and one with noncitizens, as well as language differences. So there may be other explanations, Alito suggested, for why households with noncitizens would be less likely to return their citizenship questionnaires.

Dale E. Ho for respondents New York Immigration Coalition, et al. (Art Lien)

Gorsuch said the same thing a few minutes later to Dale Ho, who argued on behalf of the civil rights groups challenging the inclusion of the citizenship question. Some states, Gorsuch told Ho, argue that there are other explanations for the reduced response rates beyond the inclusion of the citizenship question on the surveys that have gone out to some households – for example, the questionnaires may be too long, and less affluent households may not have the time to fill them out completely. What do we do, Gorsuch asked, with the fact that we don’t know?

When General Counsel of the House of Representatives Douglas Letter, who appeared as a “friend of the court” in support of the challengers, stood up to argue, he provided one of the only light moments in an otherwise strained day. Letter began by conveying the thanks of House Speaker Nancy Pelosi for allowing him to appear and argue. Roberts shot back, “Tell her she’s welcome.”

Letter told the justices that anything that undermines the accuracy of the census count is a problem, even if the information is wanted for another reason – such as enforcing federal voting rights laws. But he didn’t seem to make much headway: Even Justice Ruth Bader Ginsburg, who seemed to be siding with the challengers for most of the case, noted that Congress had been made aware of the decision to include the citizenship question but hadn’t taken any action. Kavanaugh then chimed in, asking Letter why Congress didn’t prohibit the use of a question about citizenship on the census, the same way it had banned questions about religion.

Douglas N. Letter for U.S. House of Representatives (Art Lien)

The stakes in the case are high. The federal government uses the data from the census to divide up the 435 members of the U.S. House of Representatives among the 50 states. After the 2010 census, for example, Texas gained four seats in the House and Florida gained four, while New York – the lead plaintiff in today’s case – and Ohio both lost two. Census data is also used to allocate federal funding for a wide variety of programs: In fiscal year 2016, the federal government distributed over $900 billion through such programs. The challengers say that, as a result, including the citizenship question could lead to fewer members of Congress and less federal funding for states with large populations of undocumented and Hispanic residents – many of which tend to skew Democratic.

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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