With the post-Indigenous People's Day break behind them, the Court resumed the October sitting of October Term 2021 yesterday with a couple of cases in which the Court threw the old rules to the wind and just kept going with arguments until it didn't feel like talking anymore (for reference, Chief Justice Rehnquist would famously cut lawyers off mid-sentence if they had the temerity to ignore the red stoplight). Here are yesterday's notes:
(1) The first case on the docket was Cameron v. EMW Women's Surgical Center, a case out of Kentucky. While this looks like an abortion case, that's kind of deceptive. This is really a case about when the Attorney General of Kentucky can intervene on behalf of the state when the rest of the government decides to give up on a case. Of course SCOTUS had the question presented be a little broader than that so that it can announce a rule of general applicability - it officially was asking the question of whether "a state attorney general vested with the power to defend state law" should be empowered to do so if other state actors decline to do so. In Kentucky, the AG is empowered as sort of a roving enforcer of the law, but in the first instance appropriate state officials would defend laws under their purview. In this case, the law in question involves an abortion procedure that the Kentucky legislature decided to prohibit. The state Health secretary declined to pursue the case after losing in the 6th Circuit. The then-Attorney General had signed a stipulation as part of being removed from the case originally that he would follow any final result. However, there was an intervening election and an abortion opponent (Republican) was elected to the AG's office. He decided to challenge the case utilizing his inherent power as the state's Attorney General, as granted him by the state Constitution.
(2) There honestly aren't a lot of good reasons to keep the AG out of this case. It's his job under Kentucky law to defend state law if he sees fit. There's nothing requiring the AG to be bound by decisions of other state agencies in choosing whether to push forward in defending a lawsuit, and as the AG made clear he is simply trying to take over the case that has been essentially abandoned by the Health Secretary. Justice Sotomayor wants the new AG to be bound by the stipulation of the old AG that he would accept the final result of the case and leave the suit, and there was some complicated questioning on whether the AG wears "two hats" under state law and could be stipulated out of the case wearing one "hat" and then return to the case wearing another "hat" - (if your'e confused, this means the AG has two roles - (1) to provide advice and legal counsel to other departments of the state when they ask for it; and (2) as a standalone defender of state law directly as AG). The case got bogged down in a lot of esoterica, but at bottom it seems fairly straightforward - the AG is either empowered by the state Constitution to take over this kind of suit, or they are not. It's seems unlikely that the Supreme Court will overturn Kentucky's decision to structure its government this way.
(3) The second case of the day was Thompson v. Clark, a case that was about one thing if you read the question presented, and about something else entirely if you listened to the arguments. The base question is what requirements have to be met in order to file a section 1983 claim alleging deprivation of constitutional rights (namely, an unconstitutional unreasonable seizure in violation of the 4th Amendment). Both sides came into the case arguing that when there was a criminal case stemming from the unreasonable seizure, the plaintiff filing the suit needs to establish that the criminal case came to a "favorable termination" for the plaintiff - but they disagree on what that means. Most courts have held that a favorable termination is anything that doesn't result in a conviction, including dismissal of the case. The Second Circuit, on the other hand, has held that there must actual indications of innocence (a rather vague term) in order for the 1983 suit to be allowed to proceed. This is what the case supposedly is about.
(4) I saw supposedly because it's apparent that the Justices aren't even sure they should be answering that question, or if they should be answering anything at all. There was lots of talk about this is a "downstream" question, and the Court has been ignoring the broader "upstream" questions of whether this kind of suit should be allowed at all, and if it is allowed whether the closest common law tort in 1871 when section 1983 was originally written was malicious prosecution or something else. This step is necessary because the Court doesn't have any clear direction of what is required in this kind of suit - it always just assumes that the case can proceed. Layer upon layer of assumption and analogy have left the Justices testy and confused in this case with lots of people asking lots of questions and no one really clear how to proceed. Do they start by assuming that the claim is valid, as both parties encourage? Do they actually announce that such claims are valid once and for all? Are they even allowed to do some of these things? They seem at times rather close to stepping outside of their normal judicially restrained approach and asking pragmatic questions that they aren't really empowered to ask.
(5) The highlight of the argument had to be Justice Alito positing how a doctor should answer a question about whether a centaur who smokes 30 packs a day is smoking too much and comparing the Court here to that doctor. When the lawyer for the United States (who was allowed by the Court to intervene as a third party in this case) suggested that the case wasn't quite that fantastic, Justice Alito asked what he should do then if he doesn't believe in malicious prosecution arising under the Fourth Amendment. It was a funny aside and Alito seemed to have a point - but only sort of. No one is trying to create a malicious prosecution prong of the Fourth Amendment - they're trying to reference the closest tort for analysis purpsoses as the Court has told them to do in previous cases.
(6) There was a lot of back and forth in this case that the briefs weren't necessarily responsive to the question presented and that the question presented might just not be that good to begin with. While the Court doesn't like to admit that they made a mistake in picking a case for argument, I would not be wholly surprised if this was was Dismissed as Improvidently Granted and removed from the Court docket. It seems very possible that a majority doesn't exist to answer the question as written and that the Justices would prefer to send it back and look for a case that brings up some of the foundational issues that they would essentially have to just "assume" come up in this case because no one brought those issues up in their case in chief.
(7) Quote of the Day:
What indeed, Justice Alito. What indeed.
(1) The first case on the docket was Cameron v. EMW Women's Surgical Center, a case out of Kentucky. While this looks like an abortion case, that's kind of deceptive. This is really a case about when the Attorney General of Kentucky can intervene on behalf of the state when the rest of the government decides to give up on a case. Of course SCOTUS had the question presented be a little broader than that so that it can announce a rule of general applicability - it officially was asking the question of whether "a state attorney general vested with the power to defend state law" should be empowered to do so if other state actors decline to do so. In Kentucky, the AG is empowered as sort of a roving enforcer of the law, but in the first instance appropriate state officials would defend laws under their purview. In this case, the law in question involves an abortion procedure that the Kentucky legislature decided to prohibit. The state Health secretary declined to pursue the case after losing in the 6th Circuit. The then-Attorney General had signed a stipulation as part of being removed from the case originally that he would follow any final result. However, there was an intervening election and an abortion opponent (Republican) was elected to the AG's office. He decided to challenge the case utilizing his inherent power as the state's Attorney General, as granted him by the state Constitution.
(2) There honestly aren't a lot of good reasons to keep the AG out of this case. It's his job under Kentucky law to defend state law if he sees fit. There's nothing requiring the AG to be bound by decisions of other state agencies in choosing whether to push forward in defending a lawsuit, and as the AG made clear he is simply trying to take over the case that has been essentially abandoned by the Health Secretary. Justice Sotomayor wants the new AG to be bound by the stipulation of the old AG that he would accept the final result of the case and leave the suit, and there was some complicated questioning on whether the AG wears "two hats" under state law and could be stipulated out of the case wearing one "hat" and then return to the case wearing another "hat" - (if your'e confused, this means the AG has two roles - (1) to provide advice and legal counsel to other departments of the state when they ask for it; and (2) as a standalone defender of state law directly as AG). The case got bogged down in a lot of esoterica, but at bottom it seems fairly straightforward - the AG is either empowered by the state Constitution to take over this kind of suit, or they are not. It's seems unlikely that the Supreme Court will overturn Kentucky's decision to structure its government this way.
(3) The second case of the day was Thompson v. Clark, a case that was about one thing if you read the question presented, and about something else entirely if you listened to the arguments. The base question is what requirements have to be met in order to file a section 1983 claim alleging deprivation of constitutional rights (namely, an unconstitutional unreasonable seizure in violation of the 4th Amendment). Both sides came into the case arguing that when there was a criminal case stemming from the unreasonable seizure, the plaintiff filing the suit needs to establish that the criminal case came to a "favorable termination" for the plaintiff - but they disagree on what that means. Most courts have held that a favorable termination is anything that doesn't result in a conviction, including dismissal of the case. The Second Circuit, on the other hand, has held that there must actual indications of innocence (a rather vague term) in order for the 1983 suit to be allowed to proceed. This is what the case supposedly is about.
(4) I saw supposedly because it's apparent that the Justices aren't even sure they should be answering that question, or if they should be answering anything at all. There was lots of talk about this is a "downstream" question, and the Court has been ignoring the broader "upstream" questions of whether this kind of suit should be allowed at all, and if it is allowed whether the closest common law tort in 1871 when section 1983 was originally written was malicious prosecution or something else. This step is necessary because the Court doesn't have any clear direction of what is required in this kind of suit - it always just assumes that the case can proceed. Layer upon layer of assumption and analogy have left the Justices testy and confused in this case with lots of people asking lots of questions and no one really clear how to proceed. Do they start by assuming that the claim is valid, as both parties encourage? Do they actually announce that such claims are valid once and for all? Are they even allowed to do some of these things? They seem at times rather close to stepping outside of their normal judicially restrained approach and asking pragmatic questions that they aren't really empowered to ask.
(5) The highlight of the argument had to be Justice Alito positing how a doctor should answer a question about whether a centaur who smokes 30 packs a day is smoking too much and comparing the Court here to that doctor. When the lawyer for the United States (who was allowed by the Court to intervene as a third party in this case) suggested that the case wasn't quite that fantastic, Justice Alito asked what he should do then if he doesn't believe in malicious prosecution arising under the Fourth Amendment. It was a funny aside and Alito seemed to have a point - but only sort of. No one is trying to create a malicious prosecution prong of the Fourth Amendment - they're trying to reference the closest tort for analysis purpsoses as the Court has told them to do in previous cases.
(6) There was a lot of back and forth in this case that the briefs weren't necessarily responsive to the question presented and that the question presented might just not be that good to begin with. While the Court doesn't like to admit that they made a mistake in picking a case for argument, I would not be wholly surprised if this was was Dismissed as Improvidently Granted and removed from the Court docket. It seems very possible that a majority doesn't exist to answer the question as written and that the Justices would prefer to send it back and look for a case that brings up some of the foundational issues that they would essentially have to just "assume" come up in this case because no one brought those issues up in their case in chief.
(7) Quote of the Day:
What indeed, Justice Alito. What indeed.
