Lawyering (and judging) during a pandemic

Here's Judge Bob Scola, with defense lawyer Carl Kafka and Assistant State Attorney Carl Kafka Jr.,  Photo cred to Dorothy Kafka.

Is it a good thing for the Supreme Court to be leaking?

William Baude says yes in this Washington Post article and Josh Blackman argues no in this Newsweek piece.  

Baude's intro:  

Some people close to — perhaps even on — the Supreme Court have suddenly lost their aversion to talking to the press. Once described as the “last leakproof institution,” the court had its internal deliberations laid bare last week in a series of remarkable articles by CNN’s Joan Biskupic. Relying on unnamed “sources familiar with the inner workings of the court,” Biskupic provided a play-by-play account of how the justices decided the term’s highest-profile cases; she had some similar scoops last year. This week’s revelations include that the justices originally considered granting only gay, but not transgender, employees civil rights protection in Bostock v. Clayton County, before embracing the broader view; that the newest justice, Brett M. Kavanaugh, urged the court to duck controversial rulings on abortion and presidential tax returns; and that Chief Justice John G. Roberts Jr. persuaded enough of his colleagues in a copyright case that his initial dissent became the majority opinion. The articles by Biskupic, a former Washington Post reporter, have prompted speculation about whether her sources include justices themselves and have generated consternation among court-watchers concerned about the flouting of long-standing confidentiality norms. “We all find these leaks scintillating,” wrote Josh Blackman of the South Texas College of Law. “But they need to stop. These internal deliberations should remain private.”

And Blackman:

The Supreme Court has turned into a sieve. Last week, CNN reporter Joan Biskupic published a four-part series that revealed the high court's private deliberations. Even worse, the leaks were designed to advance specific narratives about which justices are strong and which are weak. Chief Justice John G. Roberts is all-powerful. Justice Neil Gorsuch appears decisive. Justice Brett Kavanaugh looks weak and ineffective. And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition. We do not know who leaked the information to the press. It could have been the justices, their law clerks or even allies outside the Court. Frankly, it doesn't matter. These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. There is only one person who can restore order to the Court: Chief Justice Roberts. Alas, I doubt the George W. Bush appointee is up to the task. Roberts fancies himself the second coming of the great Chief Justice John Marshall. Not even close. Instead, now he more closely resembles one of his lesser-known predecessors, Chief Justice Warren Burger. In 1979, Bob Woodward and Scott Armstrong published the groundbreaking book, The Brethren. The reporters interviewed several of the justices and hundreds of Court staff to peel back the curtain. They revealed internal Court squabbles, painted some of the justices as partisans and highlighted Burger's inept leadership. This book tore the justices apart and created distrust for decades. Burger, an ill-suited chief justice, could do nothing to heal those wounds. Roberts now faces an even greater crisis of confidence. Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart. A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it.

If you missed the Cato panel on the vanishing trial, check it out here.  It was a lot of fun for me to be with such a great panel.   

Vanishing Trial panel

I'm excited to be joining Rachel E. Barkow (@rachelbarkow), Kevin Ring (@KevinARing), and Clark Neily (@ConLawWarrior) for this interesting panel about the Vanishing Trial in America. It's Monday at noon. Here's the link.

In other news, kudos to Judges Middlebrooks and Scola for really taking the lead in this District regarding compassionate release cases. Here's the most recent Middlebrooks order and Scola order. 

Judge Middlebrooks has, by far and away, issued the most grants and is taking the pandemic crisis in our prisons very seriously.

In the Scola case, Sandra Huarte was originally sentenced to 262 months, but is now free after serving "nine long years." 

Judge Ungaro also issued a grant this week, here.  And it's nice to see that Judge Lenard also got in the game with this order.   

En banc 11th Circuit rules in gender discrimination case

Knowing the makeup of the court, you know how this one came out already.  Summary judgment for the company, Kia Motors, affirmed.  Judge Branch writes the majority opinion.  There are six separate opinions in all:

BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE CARNES, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion.

JORDAN, Circuit Judge, filed an opinion concurring in the judgment.

WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.

MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and JILL PRYOR, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Interestingly, 4 senior judges elected to participate in the case, and all of them voted with the majority.  Had they not participated, it looks like there would have been a 3 judge plurality.

Aileen Cannon nomination hearing is tomorrow (UPDATED)

You can watch, Wednesday at 10am, at this link.

She's up for the Fort Pierce seat.

Good luck!

UPDATE -- in other news, Judges Luck and Lagoa denied a motion to recuse in the felon voting rights case.  Here is an article covering the motion and order.

Two of President Donald Trump’s appointees to a federal appeals court have refused calls to recuse from a case that advocates say would affect the right of approximately 750,000 Florida residents with previous felony convictions to vote.

Voting rights advocates are challenging a Florida law that requires former felons to pay any outstanding legal financial obligations before they can vote, even if they can’t afford it. These obligations include the several hundred dollars in court fees and costs that are imposed in felony cases, as well as fines and restitution orders that can run in the thousands or even millions of dollars. Challengers argue a “pay-to-vote” policy is unconstitutional and the same as a prohibited poll tax.

The challengers argued Judges Barbara Lagoa and Robert Luck of the US Court of Appeals for the 11th Circuit should disqualify because they were involved in a related legal fight as state supreme court justices. In an opinion released Monday morning, Lagoa and Luck disagreed and said they would stay on.

The Florida case is one of the biggest voting rights fights pending in federal court with less than 100 days until the November presidential election. A federal district judge in Tallahassee ruled in May that the state could not condition voting rights on fines and fees that people with past convictions could not pay. The full bench of the 11th Circuit is scheduled to hear arguments on Aug. 18, the same day as Florida’s primary election.