"We do not speak for the people; we speak for the Constitution."

That was Chief Justice Roberts last night at the University of Minnesota.  The Star Tribune has the details:

Roberts' advice to lawyers who submit briefs to the court: Keep it short. When he gets a brief shorter than the 50-page limit, Roberts joked that he'll pause, look to see who the lawyer is and say to himself, "Whoa, I like her." Shorter briefs also tend to be better written and focused.

When lawyers come for oral arguments, he urged dispassion: Don't push back against hypotheticals from the justices. That way, he said, the lawyers and justices can figure out the issues together.

Stein asked Roberts why he put a Bob Dylan quote in an opinion: "Was it just to make the opinion more interesting?"

Roberts said, no, but it was to make a point understandable for those who aren't lawyers. The line: "When you have nothing, you've got nothing to lose." He was explaining that to file a lawsuit against someone, you must have something at stake in the fight.

Stein asked Roberts if he heard from Dylan, but the chief justice said no. Roberts, however, did get into a dispute with the New York Times over his polishing the line from Dylan's singing, "When you ain't got nothing."

The audience, packed with dignitaries including former Vice President Walter F. Mondale and the entire state Supreme Court, was warm to Roberts. During the question-and-answer session from college students, he faced inquiries about how he stayed motivated in law school, what he thought of the Socratic method and "what is race?"

“Brett Kavanaugh would not have been treated fairly had he been a defendant in federal criminal court”

That’s the title of my latest op-ed in The Hill.  Please check it out.  Here’s the introduction:

Throughout the confirmation process of Justice Brett Kavanaugh, the President and the GOP have trumpeted how important it is for our society to value the presumption of innocence. Many criminal defense lawyers smiled as they heard conservatives champion this principle.

The sad truth, however, is that if Kavanaugh had been criminally charged in federal court, he would not have been treated so fairly.

Our criminal justice system is set up crush defendants, even innocent ones.

Here are two of the points:

Brett Kavanaugh would not be entitled to witness statements or to take depositions. The discovery process in federal criminal court is a joke. Remember those witnesses called before the grand jury? The defense is not entitled to see their statements until the witness testifies at trial. And if one of the grand jury witnesses does not testify at trial, then the defense is not entitled to review that statement. So too with other statements taken by law enforcement. They aren’t discoverable until after the direct examination of the witness at trial.

Forget about taking those witnesses’ depositions. Depositions do not exist in federal criminal trials, which may make you wonder how Kavanaugh would know what the witnesses were going to say. He wouldn’t, and he would find out at the same time the jury heard it.

***

On appeal, the court of appeals would be required to accept as true the accuser’s claims. If Kavanaugh proceeded to trial and challenged the sufficiency of the evidence, the court of appeals would be obliged to accept the accuser’s claims in the light most favorable to her.

As for the other issues — like disclosure of favorable information or admission of prior bad acts — the appellate court would only reverse if Kavanaugh could show prejudice: that the trial would have ended in a different result absent the mistake.

These standards make it almost impossible to win an appeal after a guilty verdict.

Great FBA event honoring Judge Alan Gold

The Federal Bar Association put on a lovely event last night honoring Judge Gold.  His remarks, as well as George Knox's, were really touching.  Here are some (bad) pictures from the back of the room as Judge Gold began his speech and as Chief Judge Moore swore in the new board of directors:

Justice Sotomayor pinches Justice Gorsuch during oral argument

For real!  During Brenda Bryn's argument yesterday in Stokeling (concerning what amount of force constitutes a violent felony), the following exchange occurred:

JUSTICE SOTOMAYOR: I'm sorry, we used
the example of a tap on the shoulder not being
sufficient force. So can you answer Justice
Alito's hypothetical?
MS. BRYN: Right.
JUSTICE SOTOMAYOR: Is a pinch, an
ordinary pinch -- let's not talk about an
extraordinary -(
Laughter.)
JUSTICE SOTOMAYOR: -- pulling of the
ears that a parent might sometimes do. Let's
talk about just a pinch.
(Laughter.)
JUSTICE SOTOMAYOR: Is that sufficient
force? If we said a tap on the shoulder
couldn't be, why could a pinch be?
MS. BRYN: I -- I think the -- the
answer is looking at the -- the other side of
the equation from what a substantial degree of
force is. And Your Honor mentioned force
capable of -- of causing pain or injury. And I
think the only way to read that explanation of
violent force is as force that's -- a degree of
force that's reasonably expected to cause pain
or injury.
JUSTICE SOTOMAYOR: You've -MS.
BRYN: I don't think a pinch -JUSTICE
SOTOMAYOR: -- you've said the
reasonable -- and I do understand your point,
which is, from personal experience, if you tap
an injured shoulder, it could cause injury.
It's capable of causing physical pain and
injury.
But we said, in the normal course of
circumstances, a tap on the shoulder would not
-- is not capable of producing injury. So -MS.
BRYN: Nor would a pinch.

Although you can't see it in the transcript, Sotomayor pinched Gorsuch where the laughter line occurs.  Pretty funny.

Justice Kavanaugh also asked his first questions:

JUSTICE KAVANAUGH: But -- but,
counsel -- counsel, in Curtis Johnson, you rely
heavily on the general statements of the Court,
but the application of those general statements
was to something very specific: Battery and a
mere tap on the shoulder. And all Curtis
Johnson seemed to hold was that that was
excluded.
So why don't we follow what Curtis
Johnson seemed to do in applying those general
statements to the specific statute at issue
here and why wouldn't that then encompass the
Florida statute, which requires more than, say,
a tap on the shoulder?
MS. BRYN: Because what the Court did
before applying the standard to the statute -to the Florida battery statute was to
definitively construe the words that -
JUSTICE KAVANAUGH: Well, but it -but it's -MS.
BRYN: -- Congress used in the
elements clause.
Go ahead.
JUSTICE KAVANAUGH: But it -- as you
point out, it's -- it's a bit general, those
statements, that language. And so how do we
understand what the Court meant by that? You
look at how it applied it, and it was to a
battery statute, and it was a case where the
government argued that the mere tap on the
shoulder was okay. And the Court said no,
that's not enough. But all it seemed to carve
out was that kind of statute. At least as I
read page 139 of the Curtis Johnson opinion, it
seemed to very carefully distinguish those two
situations.

Well, there ya go.

If you're looking for a good event and a chance to mingle with the local judges, please come to the Federal Bar Association's function tomorrow night at the Four Seasons at 5:30.  Tickets here.  The FBA is honoring Judge Alan Gold, one of the District's heroes.

It's Armed Career Criminal Act day at the Supreme Court

Two criminal cases about the Armed Career Criminal Act greet new Justice Brett Kavanaugh at the Supreme Court this morning. (Our own Brenda Bryn will be arguing one of the cases.) Last night President Trump and Justice Kennedy had the ceremonial swearing in at the White House. All 8 Justices came to support their new "teammate." All of them looked uncomfortable while Trump spoke, except Justice Thomas who "vigorously" clapped throughout.

Looks like the protestors are out this morning before the argument.