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.

Federal judge rightly upset over wrongful jailing of Michael Cohen

That's the title of my latest piece in the Hill.  Please click on the link for the whole article and let me know your thoughts.  Here's the intro:

Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael Cohen arrested because he was writing a book about President Donald Trump and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.

Judge finds Michael Cohen’s detention was wrong and orders him released

Good for Judge Alvin Hellerstein. The probation officer had Cohen detained when he wouldn’t agree to a gag order (because he was writing a book about President Trump). Cohen sued and said the arrest was retaliatory and violated the First Amendment. The judge agreed. From the Washington Post:

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” Hellerstein said in a scathing ruling issued Thursday morning. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release, I have never seen such a clause.”

 The judge also made quick work of Cohen’s lawyer fighting for various conditions:

Assistant U.S. Attorney Allison Rovner argued that Cohen’s lawyer Jeffrey Levine tried to haggle with the probation officer on his requirement that Cohen wear an ankle monitor, saying it was a condition reserved for “violent” convicts. There was nothing wrong with Levine trying to negotiate for his client, the judge said, and the attempt to debate the terms should not have been cause to imprison him.
“What’s an attorney for if he is not going to negotiate an agreement with his client?” the judge said.
A spokesman for the U.S. attorney’s office declined to comment on whether prosecutors intend to appeal.
Danya Perry, one of Cohen’s attorneys, called the ruling a victory for the First Amendment. “This principle transcends politics and we are gratified that the rule of law prevails,” Perry said.
Cohen’s legal team also includes lawyers from the American Civil Liberties Union.

"Alabama’s history of enacting laws designed to suppress people of color is well-documented."

That's Judge Gayles, sitting by designation in the 11th Circuit, in dissent in this voting rights case:

Alabama’s history of enacting laws designed to suppress people of color is well-documented. See Lynch v. Alabama, No. 08-S-450-NE, 2011 WL 13186739, at *12–18 (N.D. Ala. Nov. 7, 2011) (detailing Alabama’s extensive history of legislation designed to disenfranchise and limit the power and influence of its Black citizens), aff’d in part, vacated in part, remanded sub nom., I.L., 739 F.3d 1273. The majority opinion essentially argues that we should not penalize Alabama’s legislators for Alabama’s past; rather, we should start with a clean slate when reviewing the Photo ID Law. But this is not what the law commands us to do. Alabama’s history of voter suppression is relevant here and provides a wealth of direct and circumstantial evidence that should be considered at trial.14
For these reasons, I respectfully dissent. 

Judge Branch wrote the majority opinion, joined by Judge Carnes:

At the end of 2015, advocacy groups and individual Plaintiffs filed this lawsuit against Alabama’s Secretary of State, John Merrill, challenging Alabama’s 2011 Photo Voter Identification Law (hereinafter, the “voter ID law”), passed by the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The voter ID law took effect in June 2014 and requires all Alabama voters to present a photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a racially discriminatory purpose and effect that violates the United States Constitution and the Voting Rights Act (the “VRA”). Specifically, Plaintiffs claim the law violates the Fourteenth and Fifteenth Amendments of the Constitution; Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. § 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of Alabama’s voter ID Law. Secretary Merrill denies that the law is discriminatory, arguing that Alabama accepts so many types of acceptable IDs that most Alabamians already possess photo ID and voters who do not have one can obtain one easily.
Secretary Merrill filed a motion for summary judgment on all counts, while Plaintiffs moved for partial summary judgment on one claim and one issue.1 The district court granted Secretary Merrill’s motion and Plaintiffs-Appellants timely appealed.
Because Plaintiffs have failed to identify any genuine disputes of material facts and because no reasonable factfinder could find, based on the evidence presented, that Alabama’s voter ID law is discriminatory, we affirm the district court’s order granting summary judgment in favor of the Secretary of State for the State of Alabama.