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maxwellyjordan · 5 years

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Empirical SCOTUS: Which Supreme Court cases are generating the most interest?

This Supreme Court term, like the past several before it, has been slow out of the gates. It also marks another term with a new justice – this time Justice Brett Kavanaugh. The justices often find consensus both early on in a term and after a largescale change, defining or redefining their jurisprudential boundaries only later.

The justices have released five decisions in argued cases so far, all of them free even from concurrences. This is a new high count for unanimous decisions without a concurrence under Chief Justice John Roberts. With five signed decisions so far this term, the Supreme Court is moving at a faster pace than it did last term (which is a good thing because last term the justices were on a record-setting slow pace). The justices have yet to hear a case that sparks great interest from the general public. This might come as no surprise, as such closely watched cases are often, although not always, argued later in a term.

Yesterday’s argument in Franchise Tax Board of California v. Hyatt marked the 37th argument of the term. There is at least a modicum of built-in interest in this case because this is its third visit to the Supreme Court. But the question remains: Which cases are grabbing the public’s attention more than others? This raises a follow-up question: How can we measure this? Professors Lee Epstein and Jeff Segal developed a measure that is often cited in political science and legal scholarship in their 2000 article looking at which cases garnered New York Times front-page coverage the day after the decision was released. Others, including Empirical SCOTUS, have tried to move this measure forward by creating hierarchies of importance.

This post takes another cut at measuring cases that generated the most interest so far this term, much like a snapshot of the current Supreme Court landscape. It does this by taking multiple measures of case “interest” and combining them into an aggregate measure. Things might (and probably will) change in the coming days and months.

Multiple measures are used to gauge interest levels. The first measure looks at interest from (1) lower-court judges based on the number of times the lower-court opinions in these cases were cited. The number of interested parties was measured by looking at cases with the most (2) cert amicus and (3) merits amicus briefs filed. (4) SCOTUSblog case views by month (for October, November, and December 2018) were used to gauge interest from a more general yet still somewhat targeted audience. Another measure was (5) coverage from a top-five newspaper based on circulation before a case was argued. Finally, the cases that have generated the most general interest from Good Judgment’s forecasting service were also noted, although the sample size was too small to add this into the aggregate measure.

[Note: Google Trend data was also initially used as a measuring tool, but this proved too complex to use because multiple permutations of spellings were listed for most cases and because Google Trends does not provide measures for phrases without a sufficient number of hits. This seems like a potentially useful resource down the line, however. Also note: Although merits and cert amicus filings are highly correlated with one another, lower-court opinion citations are negatively correlated with cert and merits amicus filings, leading to the inference that these briefs and opinion cites are measuring different attributes of “interest.”]

The top 15 cases were ordered in each category and the overall counts were retained for certain variables. Although the absolute counts are not used in generating the overall measure of interest, they provide greater differentiation between cases as they are on a continuous rather than ordered scale. The first category with a count measure is cert-stage amicus filings.

Click graph to enlarge.

Cases in areas that affect civil liberties often generate much interest from a diverse set of groups that want the Supreme Court to take such cases, and this occasion is no different. The case with the most cert-stage amicus filings is The American Legion v. American Humanist Association, another case in a long line that looks at the placement of religious symbols on public property. Interesting and idiosyncratic cases have also generated considerable attention; Weyerhaeuser Company v. U.S. Fish and Wildlife Service, a case involving the designation and preservation of habitats for endangered species, has the second most cert-stage amicus filings.

The list of cases with the most amicus briefs filed on the merits looks at bit different, but this is mainly due to the fact that the Supreme Court has yet to receive these filings for many of the yet-to-be-argued cases (as is the situation with American Legion).

Click graph to enlarge.

Weyerhaeuser leads in the merits amicus category with 28 such briefs filed. Just behind Weyerhaeuser is the class action “cy pres” (proceeds held in trust) case Frank v. Gaos with 27 amicus briefs filed. Third in this category is Knick v. Township of Scott, Pennsylvania, which examines questions of federalism in the context of eminent domain proceedings. We should expect to see many more amicus briefs filed on the merits of upcoming cases that appeal to and affect larger swaths of the general population.

A third measure that looks at the question of interest (and attention) from an entirely different angle is citations to lower court opinions. The nature of the cites, whether they were positive, negative or neutral, is not as significant as whether these cases were cited at all. Citations convey that a case is already notable for a particular proposition and a bevy of cites indicates that a greater portion of the judiciary is aware of a given case, even if this population is mainly restricted to a judicial circuit.

Click graph to enlarge.

The case cited far and away the most times in the lower court is U.S. v. Stitt with 112 cites. Stitt is one of many cases that have looked at aspects of the Armed Career Criminal Act, and the extent of citations to the lower-court opinion relates to how this case affects criminal sentencing. Coming next, with a much more modest 41 cites to the lower-court opinion, is Biestek v. Berryhill, which looks at expert-testimony rules of evidence. Third on this list, with 32 cites to the lower-court opinion, is Madison v. Alabama, which examines whether a prisoner may be executed even if a mental disability leaves him with no memory of the underlying offense.

SCOTUSblog case-page views supply another count measure of interest in the various cases, and this time from a larger segment of the public. Because these numbers shift by month depending on when cases are argued, three months of data were used to gauge the most frequently accessed case pages. Beginning with October, the 15 most-viewed case pages in order of views are the following:

Click graph to enlarge.

The page for Gamble v. U.S., a case argued in the December sitting that looks at the separate sovereigns doctrine in the context of double jeopardy, was viewed the most in the October block. After Gamble were Madison v. Alabama and one of the first cases in which Kavanaugh participated in oral argument — Stokeling v. U.S.

The most-viewed case pages in November were for cases argued in the December sitting.

Click graph to enlarge.

The top-viewed case in November, Timbs v. Indiana, looks at whether the excessive fines clause of the Eighth Amendment is incorporated to the states under the 14th Amendment. The other top cases by page views were the Indian Territory boundary case, Carpenter v. Murphy, and Apple Inc. v. Pepper, which looks at whether consumers can sue deliverers of goods for antitrust damages in certain instances.

The case pages viewed the most in December are not all yet scheduled for oral argument.

Click graph to enlarge.

The most-viewed page was for Kisor v. Wilkie, which examines deference to agencies’ decisions. Next is Gamble, the top-viewed case in October, followed by American Legion, set for argument in the February sitting.

These six measures were all used to create orders of cases from one to 15, with one as the case that generated most interest in these categories. A seventh category was a binary variable for news coverage, which was coded if a case was discussed in a major newspaper prior to oral argument. Cases that were ranked in the top 15 in at least four of these categories had their orders averaged (The newspaper measure was used to count if a case appeared in at least four measures but it was not included in the average because it is not an ordered variable.).

The following is an index that runs from one to 15 with one correlating with most interest and 15 correlating with least interest within the universe of relevant cases. The cases on this index, beginning with those that generated the most interest so far this term, are:

Click graph to enlarge.

Ironically, even though Good Judgment only looked at a small subset of cases so far this year, the top two cases in terms of its forecasts, Madison v. Alabama and Gamble v. United States, are also the top two cases generating the most interest so far this term. All of the cases in the top five and many in the top 10 were discussed above due to their relevance in one or more of the measured areas.

With the partisan-gerrymandering cases Lamone v. Benisek and Rucho v. Common Cause now on the court’s docket, relative case interest will inevitably shift as the term moves forward. We will also gain more knowledge of group interest in cases pending argument as more amicus briefs are filed on the merits. One of the complexities of measuring interest level is that it is fluid and changes over time as well as when the choices vary. For a term that so far lacks blockbuster cases, however, this measure allows room for differentiation that might otherwise be opaque.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: Which Supreme Court cases are generating the most interest? appeared first on SCOTUSblog.

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myattorneyusa · 6 years

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SCOTUS Oral Arguments in Nielsen v. Preap (236( c) Case)

Introduction

On October 10, 2018, the Supreme Court of the United States heard oral arguments in Nielsen v. Preap, Docket No. 16-1363. The issue in Preap is whether an alien becomes exempt from mandatory detention under section 236( c) of the Immigration and Nationality Act (INA) if the Department of Homeland Security (DHS) does not take him into immigration custody immediately after his or her release from criminal custody.

Preap arrived at the Supreme Court on the Government's appeal from a decision from the United States Court of Appeals for the Ninth Circuit, which held that the section 236( c) mandatory detention provision applies only to aliens who are detained promptly after their release from custody.

In this article, we will examine the background of Preap, the issues under consideration by the Supreme Court, and the oral arguments. We will update the site with new information if and when the Supreme Court files a decision on the appeal.

Background: Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016)

On August 16, 2018, the Ninth Circuit published a precedential decision in Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) [PDF version].

Preap arrived at the Ninth Circuit on appeal by the Government from a decision of the United States District Court for the Northern District of California. The case concerned the scope of the mandatory detention provision in section 236( c) of the Immigration and Nationality Act (INA), which requires the Attorney General to take into custody certain aliens pending removal “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation…” The question was whether the language “when the alien is released” requires the Attorney General to detain the alien immediately upon his or her release from criminal custody.

The three petitioners in Preap had been detained under section 236( c) several years after their release from criminal custody. They filed a class action petition for habeas relief in the Northern District of California. The district court granted their motion for class certification, certifying as a class all “individuals in the state of California who are or will be subjected to mandatory detention under [section 236( c)] and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a section [236]( c)(1) offense.”

The Ninth Circuit ultimately sided with the district court, dismissing the government's appeal. The Ninth Circuit also read the “when released” language as requiring that the alien must be detained upon his or her release from criminal custody in order for the mandatory detention provision of section 236( c) to apply. The Ninth Circuit declined to decide “how promptly an alien must be brought into immigration custody after being released from criminal custody for the transition to be immediate enough to satisfy the 'when … release' requirement,” instead opting simply to leave in place the district court injunction. Interestingly, the Ninth Circuit's position diverged from that of every circuit court that had considered the issue to that date.

Relevant Statute

The following is the text of section 236 of the INA, the primarily statute at issue in the case [see here].

Questions Presented on Appeal to the Supreme Court

In agreeing to hear the case on appeal, the Supreme Court is considering the following question [PDF version]:

Whether a criminal alien becomes exempt from mandatory detention under [section 236( c)] if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

Oral Arguments before the Supreme Court

In three sections, we will examine some of the highlights from the oral arguments before the Supreme Court in Nielsen v. Preap. First, we will look at the highlights of the oral argument of Zachary D. Tripp, ESQ., assistant to the Solicitor General, representing the Government. Next, we will study the oral arguments of Cecillia D. Wang, ESQ, representing the respondents Preap et. al. Finally, we will briefly look at the rebuttal of the assistant Solicitor General.

Oral Arguments of Petitioner (Government)

The government took the position that the mandatory detention provision of section 236( c) of the INA applies even if there is a gap in time between the alien's release from criminal custody and his immigration detention. As we will see, several justices expressed concerns with the scope of the Government's reading of section 236( c).

Section 236( c) is a mandatory detention provision because ( c)(1) provides that an alien “shall be detained” provided the occurrence of certain factors, and ( c)(2) provides for only a limited set of circumstances in which the Attorney General may release the alien once detained.

The assistant Solicitor General asserted that the exceptions provided for in section 236( c)(2) plainly did not apply to the respondents in the instant case. Thus, the pertinent question was which aliens were covered by section 236( c)(1). He argued that it applies to any alien who is inadmissible or deportable on one of the specified grounds, regardless of when he or she is ultimately apprehended.

Justice Sonia Sotomayor — who would prove to be one of the most active questioners during the Government's oral arguments — was the first to jump in. Justice Sotomayor asked the Government what effect it gave to the language that the Attorney General shall affect detention “when the alien is released…” The Government interpreted this language as merely “convey[ing] a sense of urgency” to detain the alien rather than a limitation on the Attorney General's mandate to detain the alien.

Justice Sotomayor followed up by questioning the Government about the transition rules, which initially gave the Government two years in which to gather the resources to implement section 236( c) when the statute was first enacted. Justice Sotomayor asked if the Government's position now is correct, why were the transition rules needed at all? The Government stated that its position was that the transition rules were intended to address a lack of bed space at the time the statute was enacted, but that the rules did not imply a limitation on the Government's mandate to detain aliens described in section 236( c). The assistant Solicitor General asserted: “We need to arrest them when they get out. We need to arrest them the next day, the next month, whenever it happens.”

Justice Sotomayor continued her questioning. Next, she asked what the language “when the alien is released” described. The Government argued that the language did not refer to the alien, but rather just states that the statute kicks in after the release. The Government further argued that the language “takes as a given that [the alien has] already been fully described.” Justice Sotomayor appeared cynical of this reading of the statute, stating that the language “describes the person who's subject to this provision.” To counter this line of reasoning, the Government noted the significance — in its view — of the fact that the statute does not specify any time period beyond that “when the alien is released.”

Justices Ruth Bader Ginsburg and Neil Gorsuch questioned the assistant Solicitor General on whether the Government believed that there was any temporal limitation on the amount of time that could elapse from an alien's release from criminal custody to his or her apprehension and placement in immigration detention. The Government contended that there is no temporal limitation, stating that “( c)(1) [is a] continuing obligation” to detain aliens described therein.

The Government next addressed the position of respondents that the arrests in the instant case were occurring under the auspices of section 236(a) rather than section 236( c). Section 236(a) allows for the detention of removable or inadmissible aliens on the warrant of the Attorney General. The Government took the position that this theory was incorrect, but that, even if it were correct, the respondents would still lose, because the difference between section 236(a) and ( c) is that (c) mandates detention whereas (a) merely allows it. In response to later questioning from Justice Elena Kagan, the Government asserted that the authority to arrest certain aliens derives from 236(a), but that section 236( c)(1) makes an arrest mandatory in certain cases, including in those limited cases involving aliens who were never previously in custody. In the case of section 236( c)(1)(D), the “when released” language applies for certain aliens who had been or were in criminal custody. Justice Kagan appeared to have issues with the Government's reading, suggesting that, if the only requirement for being covered under the mandatory detention provision was described in section 236(a)(1)(A)-(D), then the prior criminal custody language would be effectively mooted.. The Government, however, endeavored to maintain the distinction between the warrant authority in section 236(a) and the detention mandate for certain aliens — who may also fall under section 236(a) — in section 236( c)(1).

Justice Stephen Breyer then expressed concerns with the idea that an individual could be placed in mandatory immigration detention decades after being released from criminal custody for a minor offense. He referenced his dissent in the recent Jennings v. Rodriguez case, where he took the position that indefinite detention under section 236( c) entails serious constitutional concerns [see article]. Justice Breyer suggested that if the statute is ambiguous, then there is “a huge constitutional question” if it is read, as the Government advocated, to allow the detention of aliens who had been properly released from criminal custody. The Government disputed Justice Breyer's suggestion that the statute was ambiguous, stating that its reading was “the only plausible reading.” The assistant Solicitor General made clear that the Government contended that section 236( c) applied even if there was a 50 year gap between an alien's being released from criminal custody for a minor offense and his or her being detained by immigration authorities, while noting that the statute does not apply retroactively to arrests before 1998. In response to a follow-up question, the Government stated that the respondents' reading of the statute would deprive the Government of its authority to hold specified aliens without bail hearings.

In response to questions from Justice Samuel Alito and Justice Kagan about the scope of the certified class in the instant case, the assistant Solicitor General stated that there are no statistics on the number of individuals covered at the present or estimates on how many individuals may join the class in the future. He argued that the injunction impaired the DHS's ability to do its job, noting that it often takes time for the DHS to identify when an alien has been convicted of a crime or has otherwise committed conduct that would render him or her subject to mandatory detention.

Justice Breyer asked the Government what would constitute a reasonable time between release from criminal custody and immigration arrest. He noted the difference between a situation involving an individual who was living peacefully in the community after release and a person who was “hiding in the mountains” from immigration enforcement. The Government argued that section 236( c)(1) has no time limit at all, thus mooting the distinction. He added that Congress could have added a statute of limitations, but for whatever reason opted not to. The Government answered in the negative when asked by Justice Kagan whether there is a constitutional claim for aliens in some of the more sympathetic cases described by Justice Breyer.

Justice Breyer asked the assistant Solicitor General what issue the government would have, assuming that there were constitutional concerns and that the statute was ambiguous, with merely detaining the aliens under section 236(a) and affording them bond hearings. The Government responded that the statute provides for detaining certain aliens without bond hearings in order to preclude any chance that they will be released and either commit further crimes or disappear.

In response to a question from Justice Alito, the Government took the position that if the Supreme Court were to rule in its favor, individual aliens could sue for habeas relief instead of class action relief, describing this as a “safety valve” that is “much more faithful to what Congress was trying to accomplish…” He added, in response to a question from Justice Kagan, that the alien could seek relief notwithstanding the jurisdictional provision in section 236(e).

Oral Arguments of the Respondents

The attorney for the respondents began by arguing that the Government's position was contrary to the language of section 236( c) in at least the following three ways: (1) It negated Congress' directive in the statute to reserve mandatory detention resources only for aliens who would otherwise be released into the community (as opposed to those who already had been); (2) It is not true that Congress wanted to detain and deport all criminal aliens; and (3) Congress could have left out the detained “when the alien is released” language if it had intended for the statute to apply to all aliens otherwise described by section 236( c)(1). Instead, the respondents argued that section 236( c) exists as a limited exception to the general detention authority in section 236(a). They also adopted several of the concerns implied in critical questions directed to the government by the Justices, including that the Government's reading would arguably render the transition period rules from 1998 superfluous.

Justice Ginsburg was the first to question respondents' counsel, asking whether it was anomalous that, under her reading, two aliens described to section 236( c)(1)(A)-(D) would be treated differently if one were to be apprehended immediately upon release from criminal custody but not another because . the one immediately apprehended would be subject to mandatory detention without bail hearings whereas the other would be eligible for bail hearings under section 236(a). The respondents took the position that this anomaly is what the statute provides, and the Supreme Court determined that the mandatory detention provision was constititutional in Damore v. Kim.

Next, Justice Alito pressed the respondents' counsel on the meaning of “when” in “when released,” asking if it was the respondents' position that “when” means “immediately,” for example ,”as soon as the person … walks out of the door of the prison or the jail.” The respondents responded that the Ninth Circuit was correct in holding that the alien must be detained with “a reasonable degree of immediacy” for section 236( c) to apply.

Justice Alito continued his questioning, asking what “a reasonable degree of immediacy” meant. He asked, for example, whether it meant that the government was required to determine within a short period of time — e.g., 48 hours — whether an alien being released from custody in California (where the district court ruling is in effect) is subject to section 236( c) detention. The justice noted that California would not have immediately informed the federal government when it had released from criminal custody an alien who may be described in section 236(a)(1)(A)-(D). The respondents asserted that Congress had addressed this problem with section 287(g), which allowed the federal government to enter into immigration enforcement cooperation agreements with local authorities. Justice Alito asked her if it was her position that local authorities were providing the pertinent information on criminal aliens to the DHS, to which respondents' counsel replied that this was Congress' idea in 1996. She added that, for the most part, local jurisdictions do cooperate with the federal government. The respondents' counsel added that ,regardless of how facts on the ground may have changed since 1996, the pertinent concern is what Congress meant when it wrote the mandatory detention provision and related immigration statutes.

Chief Justice John Roberts returned to the question of what a “reasonable degree of immediacy” means. He suggested that the term did not make sense, for “[i]f it's an hour later, it's not immediate.” He asked whether the respondents meant to argue for a “reasonable degree of immediacy,” in other words, “a very short time,” or a “reasonable time,” which would depend on the resources that were available to the DHS. After further back and forth, the respondents counsel stated that it was her position that “the same day would be fine,” but that 48 hours between release from criminal custody and immigration apprehension would not be within the scope of section 236( c).

In response to questioning from Justice Sotomayor, the respondents' counsel took the position that the pertinent issue was not whether the government put in a reasonable effort to detain the alien on the same day of his or her release from custody, but whether it actually did so. Thus, as a consequence, if the alien were to elude capture by immigration authorities on that day despite their best efforts, the alien would not be subject to section 236( c) upon his or her eventual apprehension by DHS.

Justice Gorsuch then asked a grammar question. Justice Gorsuch noted that the noun in section 236( c)(1) is the “alien,” and then added that “[a]dverbs don't usually modify nouns,” but rather verbs. In the instant statute, he explained that the verbal phrase is “shall take into custody.” He asked why it was that the adverbial phrase “when the alien is released” should not be more naturally read as modifying “shall take into custody” rather than the “alien.” Under this reading, when the alien is released would be when the government's duty to take the alien into custody commences rather than a restriction on the class of aliens affected by the mandatory detention provision.

Counsel for the respondents' argued that the structure of the provision implied that the adverbial phrase modified aliens rather than “shall take into custody” and that adverbs can, in some instances similar to the instant statute, modify nouns. To the latter point, the respondent's counsel provided a hypothetical example involving harvesting grapes, but Justice Gorsuch did not appear to find the example persuasive. She ultimately reaffirmed her position from briefing that what the Government described as an adverbial phrase in the statute could be rephrased as an adjective, and that it was describing the alien rather than modifying “shall take into custody.”

Justice Brett Kavanaugh then noted that Congress would have known at the time it wrote the statute that immigration apprehension would not be immediate in many cases. He next noted that Congress nevertheless did not put a time limit in the statute. In light of this, he articulated reluctance about “superimposing a time limit into the statute” when he read Congress as having declined to do so. The respondents' counsel disputed that she was asking the Court to superimpose a time limit, but he interjected by noting that Congress had not included her proposed limit of 24 hours or any other limit such as the “reasonable time” suggested by Justice Breyer. The respondents took the position that “when” as used in section 236( c) means “when” in the common sense, as suggested by Justice Breyer.

Justice Kavanaugh then questioned the respondents' argument that the Government had little to lose were their broad view of section 236( c) to be narrowed. The respondents' counsel argued that 236( c) is merely an exception to 236(a), and that aliens who do not fall under section 236( c) can be detained under section 236(a) with bail hearings. Justice Kavanaugh noted, however, that the creation of section 236( c) implied that Congress believed that these hearings were detrimental with respect to certain aliens. The respondents' counsel noted that a bipartisan group of former INS and DHS general counsels submitted an amicus brief supporting the respondents' position that section 236(a) detention is not meaningfully more burdensome for the government than section 236( c).

Chief Justice Roberts noted that four circuits and an equally divided First Circuit disagreed with the position of the respondents and the Ninth Circuit. The respondents' counsel explained why it was her opinion that the Ninth Circuit was correct, and she added that in one of the five contrary decisions the Fourth Circuit misapplied BIA precedent on the issue.

Justice Alito then acknowledged that he could see compelling equities in cases where an alien was free for a number of years before being detained by DHS, but that Congress had taken the position that this class of aliens was dangerous and not to be trusted. Bearing that in mind, he asked why it would make sense for Congress to view a case where an alien was out of prison for a week differently than that of an alien who was detained on the day of his or her release from criminal custody.

Citing to the Supreme Court decision in Zavydas v. Davis [see article where we discuss case in some detail] where the Court held that certain aliens subject to detention are entitled to bail hearings after six months, Justice Breyer asked whether the respondents would consider it an acceptable solution if a six month limit was imposed on section 236( c) in the instant case. The respondents took the position, again, that six months was too long, and that a bright line rule should be consistent with the narrower statutory language.

Rebuttal (Government)

On rebuttal, the Government fielded questions from Justices Sotomayor and Kavanaugh.

Justice Sotomayor pressed the Government attorney on two points, expressing skepticism about the Government's argument that the “when released” language does not refer to the alien but instead connotes a sense of urgency to detain the alien. In response to the latter point, the Government took the position that it is better late than never to detain an alien described in section 236( c), and that delays in effecting detention do not negate the government's responsibility to do so.

Justice Kavanaugh then asked the assistant Solicitor General whether he had a view on what a reasonable length of time would be to apprehend an alien after his or her release from criminal custody were the Court to rule against the Government and adopt a bright line rule. Noting the difficulty in tracking down aliens once they are released into custody, the Government declined to suggest a period.

Finally, Justice Sotomayor noted that many aliens described in section 236( c)(1)(A)-(D) are released from criminal custody and do not commit more crimes or obtain some form of relief from removal. She asked whether the Court could constitutionally ignore that going forward. The Government responded by arguing that this was not the issue before in the case, and rather that it was “a statutory interpretation case.”

Conclusion

In general, one cannot draw firm conclusions from oral arguments as to how the Supreme Court will ultimately resolve a case. In the instant oral arguments, we saw several Justices — notably Justice Gorsuch — pose tough questions to both the Government and the respondents. In addition, even if the Court were to rule in favor of the respondents, it is unclear from the oral arguments on which grounds it would do so and what remedy it would provide.

All we can say for certain for the time being is that the Court's eventual decision in Preap will be its second significant detention decision in the last year, following Jennings v. Rodriguez [see article]. We will update the site with more information when the decision is published.

To learn more about immigration detention, please see our growing selection of articles on the issue [see category]. For related topics, please see our website's sections on criminal aliens [see category] and removal and deportation defense [see category].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

#immigration #immigrants #us immigration

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benrleeusa · 6 years

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Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences. Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise. I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones). Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

You be the judge: what federal sentence for Silk Road creator Ross Ulbricht?

Notable developments in prelude to federal sentencing for Silk Road creator Ross Ulbricht

Debate over harms of online drug market now at center of upcoming sentencing of Silk Road creator Ross Ulbricht

"Before sentencing, Ulbricht begs for leniency: 'please leave me my old age'"

Feds seeking LWOP sentence for Silk Road creator Ross Ulbricht

Second Circuit affirms convictions and LWOP sentence for Silk Road creator Ross Ulbricht

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furynewsnetwork · 7 years

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LISTEN TO TLR’S LATEST PODCAST:

By Kevin Daley

The Supreme Court denied a Department of Justice request to clarify its June 26 travel ban ruling Tuesday, effectively upholding a lower court order which curtailed Trump administration guidance on the scope of exemptions from the ban.

The high court allowed President Donald Trump’s travel ban to take effect in June, but required that the government continue to admit individuals from the six countries named in the order who have a significant connection to the United States.

The Department of State originally concluded that certain relatives of U.S. citizens from the affected countries possessed a “significant connection” but that others, like grandparents and cousin, did not. U.S. District Judge Derrick Watson, the same judge that stayed the revised order in March, modified State’s guidance and required consular officers to admit any person from the affected countries with a first-degree relation in the United States.

The State Department acquiesced and added grandparents to its list of protected relatives Monday, but continued to exclude others. The Department of Justice asked the Supreme Court to clarify its original order and resolve the dispute last week, but the Court declined to do so.

Watson’s order also provided that refugees seeking resettlement in the United States could qualify for an exemption from the ban if they were previously in contact with a refugee agency who had given them assurances of assistance. The justices stayed this portion of Watson’s order, pending an appeal in the 9th Circuit.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted they would have stayed Watson’s order in its entirety.

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douglasacogan · 5 years

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How quickly could litigation over federal execution procedures get to SCOTUS?

The question in the title of this post is prompted by this AP article serving as follow-up to this past week's news, noted in this post, that a federal district court has halted pending scheduled federal executions based claim that planned execution protocol "exceeds statutory authority." The AP piece is headlined "DOJ would take halted executions to high court" and here are excerpts:

Attorney General William Barr told The Associated Press on Thursday that he would take the Trump administration’s bid to restart federal executions after a 16-year hiatus to the Supreme Court if necessary. Barr’s comments came hours after a district court judge temporarily blocked the administration’s plans to start executions next month. The administration is appealing the decision, and Barr said he would take the case to the high court if Thursday’s ruling stands.

He said the five inmates set to be executed are a small portion of 62 death row inmates. “There are people who would say these kinds of delays are not fair to the victims, so we can move forward with our first group,” Barr said aboard a government plane to Montana, after he met with local and federal law enforcement officials in Cleveland.

The attorney general unexpectedly announced in July that the government would resume executions next month, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. Some of the chosen inmates challenged the new procedures in court, arguing that the government was circumventing proper methods in order to wrongly execute inmates quickly.

U.S. District Judge Tanya S. Chutkan put the cases on ice while the challenge plays out. She said in a Wednesday evening ruling that the public is not served by “short-circuiting” legitimate judicial process. “It is greatly served by attempting to ensure that the most serious punishment is imposed lawfully,” she wrote.

Her ruling temporarily postpones four of the five scheduled executions beginning next month; the fifth had already been halted. It’s possible the government could win an appeal in time to begin executions Dec. 9, but that would be an unusually fast turnaround.

“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said the inmates’ attorney, Shawn Nolan. “The court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”...

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. Barr said in July that the Obama-era review had been completed, clearing the way for executions to resume.

He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

Chutkan said in her opinion that the inmates’ legal challenge to the procedure was likely to succeed because the Federal Death Penalty Act requires that federal executions employ procedures used by the states in which they are carried out.

On Thursday, Barr defended the protocols, saying the Bureau of Prisons has been testing and conducting practice drills ahead of the first execution. He would not say where the cocktail of drugs would come from. “I was kept advised and reports were given to me, scientific tests, the drills they are running through,” Barr said.

Those chosen were among inmates who had exhausted their appeals, and the cases were forwarded to senior Justice Department officials who reviewed the cases and made recommendations to him, Barr said....

The death penalty remains legal in 30 states, but only a handful regularly conduct executions. Texas has executed 108 prisoners since 2010, far more than any other state. Though there hasn’t been a federal execution since 2003, the Justice Department has continued to approve death penalty prosecutions, and federal courts have sentenced defendants to death.

I was certain that DOJ would be inclined to appeal this ruling to the DC Circuit and even to SCOTUS as needed in order to try to move forward with executions. But I am quite uncertain about just how quickly this litigation (and other litigation surrounding these capital cases) would move forward. It is not uncommon for capital litigation to move though federal courts quickly on the eve of a scheduled state execution, but that often comes after an array of issues have first been reviewed by state court and often come with a deferential standard of review under applicable law. It has been a very long time since any federal courts have had to consider any modern claims for relief on the eve of a scheduled federal execution. I have no idea if DOJ is going to press for an expedited appeal schedule or if the DC Circuit or SCOTUS will be inclined to fast-track these matters.

Though I am not following all of the relevant litigation, I assume that objections to the federal execution protocol is just one of a number of claims being brought by the death row prisoner with executions dates. As flagged in this post from July, I am especially interested to know how these particular defendants were put in the front of the execution queue and whether this selection process was constitutionally sound. And I suspect the lawyers representing those of federal death row have a lot of other question they are bringing to court in this process.

Prior related posts:

"Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"

Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death

Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death

Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority"

from RSSMix.com Mix ID 8247011 https://sentencing.typepad.com/sentencing_law_and_policy/2019/11/how-quickly-could-litigation-over-federal-execution-procedures-get-to-scotus.html via http://www.rssmix.com/

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douglasacogan · 5 years

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Intriguing SCOTUS decision to GVR Fourth Amendment case "to consider the First Step Act of 2018" over DOJ opposition

A number of helpful folks made sure I did not miss the fact that the Supreme Court's order list today started with this disposition of Wheeler v. US:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for the court to consider the First Step Act of 2018, Pub. L. No. 115-391 (2018).

Interestingly, the original cert petition in Wheeler concerned a Fourth Amendment issue (discussed here at Bloomberg Law). But, following the passage of the FIRST STEP Act, Wheeler's counsel filed this supplemental brief on the FIRST STEP Act issue. That supplemental brief states that after the original petition was filed, "new legislation was enacted under which Mr. Wheeler could not be subject to the 20-year sentence imposed. Mr. Wheeler files this Supplemental Brief to explain the impact of the new legislation on his sentence and to request relief from his unlawful sentence as an alternative remedy."

Here is part of the feds response to the supplemental brief which comes at the tail of of its cert opposition brief:

The First Step Act amended 21 U.S.C. 841(b)(1)(A) to reduce the statutory minimum sentence for certain drug offenses by recidivists from 20 years to 15 years. See First Step Act § 401(a)(2). But in Section 401(c), titled “Applicability to Pending Cases,” Congress provided that “the amendments made by th[at] section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” § 401(c) (emphasis added). Here, petitioner’s sentence was imposed in 2016, long before the First Step Act was enacted, and petitioner has been serving that sentence since that time.... The First Step Act is thus inapplicable to petitioner.

Petitioner’s contention (Supp. Pet. 4) that the First Step Act applies to all criminal cases pending on “direct appellate review” is incompatible with the language of the statute. Congress instructed that the relevant provisions of the First Step Act apply only to pending cases where “a sentence * * * has not been imposed.” First Step Act § 401(c).

In this post back in December 2018, I highlighted some of the "pipeline" ambiguity concerning which on-going cases could or should get the benefit of the the new FIRST STEP Act provisions. Though one might read the GVR by SCOTUS here as an indication that the Court thinks all pending cases should benefit from the new legislation, it might be more accurate to say that the Justices want the Third Circuit to sort this matter out in the first instance.

from RSSMix.com Mix ID 8247011 https://sentencing.typepad.com/sentencing_law_and_policy/2019/06/intriguing-scotus-decision-to-gvr-fourth-amendment-case-to-consider-the-first-step-act-of-2018-over-.html via http://www.rssmix.com/

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maxwellyjordan · 5 years

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Empirical SCOTUS: Which Supreme Court cases are generating the most interest?

Click graph to enlarge.

The most-viewed case pages in November were for cases argued in the December sitting.

Click graph to enlarge.

The case pages viewed the most in December are not all yet scheduled for oral argument.

Click graph to enlarge.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: Which Supreme Court cases are generating the most interest? appeared first on SCOTUSblog.

from Law http://www.scotusblog.com/2019/01/empirical-scotus-which-supreme-court-cases-are-generating-the-most-interest/ via http://www.rssmix.com/

#law #justice

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maxwellyjordan · 6 years

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Wednesday round-up

For The Washington Post, Elise Viebeck and Gabriel Pogrund report that “[a] Republican senator whose vote could ensure the confirmation of Supreme Court nominee Brett M. Kavanaugh” — Sen. Susan Collins of Maine – “offered an upbeat assessment of their meeting Tuesday, highlighting the judge’s statement that the Roe v. Wade decision legalizing abortion is ‘settled law.’” Additional coverage comes from Scott Detrow at NPR , Natalie Andrews and Byron Tau for The Wall Street Journal, Sheryl Gay Stolberg for The New York Times, and the Associated Press. At The Hill, Tal Axelrod reports that “[a] Public Policy Polling survey released Tuesday shows a plurality of Maine voters want … Collins … to reject Judge Brett Kavanaugh’s nomination to the Supreme Court and many will be less likely to support her for reelection if she votes to confirm him.” Megan Keller reports at The Hill that “Sen. Sheldon Whitehouse (D-R.I.) on Tuesday said that he thinks a ‘smelly special interest network’ of dark money was involved in Supreme Court nominee Brett Kavanaugh’s nomination process.”

In an op-ed for The Hill, Steven Calabresi refutes “criticism of Judge Brett Kavanaugh’s nomination to the Supreme Court [charging] that his references to constitutional originalism suggest he would reach a series of bad results in certain cases.” At Slate, Mark Joseph Stern suggests that “[a]side from the looming election,” “there is one clear reason” why the Republicans are “so eager to push through Kavanaugh’s nomination before the documents [from the nominee’s days in the White House counsel’s office] are released”: “The Supreme Court has stacked its October docket with major cases that will require Kavanaugh’s vote for a conservative victory.”

Briefly:

At Empirical SCOTUS, Adam Feldman “examine[s] aspects of the petitions the justices will review [at their ‘long conference’] in September and then focuses on forty of the petitions that have a higher than normal likelihood of success.”

At ACS Blog, Lawrence Fox maintains that Lacaze v. Louisiana, a pending cert petition, “is a perfect vehicle for the U.S. Supreme Court to address when a judge must disclose his personal interests in a given case and recuse himself.”

For The New York Times, Adam Liptak reports that although “[t]he Constitution should mean the same thing in Arizona as it does in Texas,” “federal appeals courts have issued starkly different rulings about whether border guards … can be held to account for shootings across the Mexican border that took the lives of two teenagers”; the Supreme Court has already been asked to review one of the cases, Hernandez v. Mesa.

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] scotusblog.com. Thank you!

The post Wednesday round-up appeared first on SCOTUSblog.

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#law #justice

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maxwellyjordan · 6 years

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Empirical SCOTUS: To extend or not to extend

Occasionally someone will pose a question about Supreme Court practice to me that deals with an issue I haven’t examined. Recently I had one such interaction with John Elwood of Vinson & Elkins. John asked if I had looked at applications for extensions of time to file petitions for writs of certiorari. Because I hadn’t looked at this issue in any detail before, I decided to bring a quantitative understanding of the practice to this post.

Putting the material together to file a petition for a writ of certiorari to the Supreme Court is no small endeavor. Compounding the time involved, parties often bring on experienced counsel to take over cases pending possible Supreme Court review. With filing requirements creating specific parameters for when cert petitions must be filed, counsel may find themselves under the gun to file in a timely manner. To circumvent these requirements, counsel may request certain time extensions to file. This post takes a look at several aspects of these requests, namely: who files them, how the justices respond and what these applications for time extensions contain.

The Rules of the Court create the time-specific filing requisites. Rule 13 contains the initial requirement that petitions must be filed “within 90 days after entry of the judgment.” Rule 13.5 then adds, “For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days.” The Supreme Court requires attorneys submitting applications for extensions to establish the “basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified.” Rule 30, entitled “Computation and Extension of Time,” contains additional information. Specifically, it states that:

An application to extend the time to file a petition for a writ of certiorari … shall be made to an individual Justice and presented and served on all other parties as provided by Rule 22[, which requires the application to be “addressed to the Justice allotted to the Circuit from which the case arises”]. Once denied, such an application may not be renewed.

These filings are not at all unusual. Looking at one randomly selected swath of time between December 4-12, 2017, 42 applications for extensions were filed prior to cert petitions. Although the maximum amount of time one can request is 60 days, not all petitioners request the entire amount of time. Here is an example of an application filed by experienced appellate attorney Shay Dvoretzky of Jones Day. The application for a month’s extension was granted but amended to one day less than the time requested.

For the data in the post, I started with a random sample of 200 applications from the 2015 through the 2017 Supreme Court terms. First, I looked at the amount of time requested in the applications. The applications are sorted into the closest category if the requested time is in between two of them.

Click graph to enlarge.

Note that the majority of the requests are for the maximum allotted time. A substantial minority of applications asked for less than the maximum amount of time, though. Why? In theory an attorney could craft a “good cause” argument for a more limited extension.

Although the justices are responsible for applications based on their allotted circuits, this does not necessarily lead to an even division of labor.

Click graph to enlarge.

Justice Anthony Kennedy is assigned to the U.S. Court of Appeals for the 9th Circuit and is thus responsible for the largest and most populated geographic region. He received the most applications, followed by Chief Justice John Roberts, who is responsible for the U.S. Courts of Appeals for the 4th, District of Columbia and Federal Circuits, and Justice Clarence Thomas, who is responsible for the U.S. Court of Appeals for the 11th Circuit.

Now that we have a sense of the terrain for these applications, we can take a look at the justices’ responses. The justices responded to several applications by shifting the deadline to a few days before or after the requested date. This type of response most likely relates to the Supreme Court’s logistical concerns and not to the merits of the applications.

Of the 200 applications, 35 (17.5 percent) were denied or resulted in extensions that were at least a week below the requested time. Several justices disproportionately denied applications. In fact, only three justices denied applications in this set in their entirety. Of those three justices, Kennedy denied 12, Justice Antonin Scalia six, and Justice Ruth Bader Ginsburg one.

More justices got into the action of granting applications, but for less time than requested. The breakdown of these is as follows.

Click graph to enlarge.

Kennedy also led in this category, along with Justice Samuel Alito. Justice Neil Gorsuch was not far behind. Most of these amended extensions were given for one month instead of the two months requested. As both data points suggest, Kennedy is the most likely justice to deny or amend such extension applications, so those filing in the 9th Circuit should take care to provide good reasons for any requested extensions.

I dug deeper into a separate sample of 50 applications to understand their content. First, I looked at who files these applications and was met with some surprises. The following figure tracks the firm or group associated with each of the 50 applications in which this was made clear in the application.

Click graph to enlarge.

Pro-se applications (filed on an applicant’s own behalf) were by far the largest group. Following these and other small law offices, firms with experienced attorneys also placed highly in this figure. Several of the attorneys of record on the applications are well known in Supreme Court circles. These include Mayer Brown’s Andrew Pincus, Stanford Supreme Court Litigation Clinic’s Jeffrey Fisher and Kirkland & Ellis’ Paul Clement. Other notable names on this list of 50 random applications include University of Texas’ Steve Vladeck, Jones Day’s Gregory Castanias, Latham & Watkins’ Gregory Garre and MacArthur Justice Center’s Amir Ali.

Of these 50 applications, four were met with grants that provided less than the time requested. (One applicant received an additional week, likely related to scheduling surrounding the holiday season.) Only one of these amended grants was from a pro-se filer, while the other three were from attorneys backed by big-name firms or groups. This at a minimum implies that an attorney’s place of practice is not the only variable the justices examine when deciding on these applications.

But what do these applications contain? I ran topic modeling software across the sections of these 50 applications relating to the rationale for extensions. This led to five sets of key words that help explain the types of requests made in the applications. The key words are as follows:

Petition; certiorari; argument; writ; oral; reply; date

Time; issues; current; complex; preparing; retained; attorneys

Court; additional; record; circuit petitioner; states; supreme; review; appellate; filed

Counsel; case; due; extension; prepare; undersigned; day; recently; holidays

Including; file; appeals; law; applicant; state; pending; full

These key words help clarify that common justifications for the extension requests include other obligations before the petition’s original deadline date, holidays or break periods, case complexity and differently retained counsel at the Supreme Court level. Such explanations by no means secure granted applications in every instance, but they do give a sense of the reasons behind such requests.

Although this is only a small part of Supreme Court practice, successful applications may allow for improved petitions, while denied applications may result in cert petitions that are incomplete or less polished, reducing the likelihood that those petitions will be granted.

This post was originally published at Empirical SCOTUS.

The post Empirical SCOTUS: To extend or not to extend appeared first on SCOTUSblog.

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#law #justice

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douglasacogan · 6 years