Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument. 

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 

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Some good reads and great things to watch.

 By Margot Moss:

1.  “I helped destroy people.”  No - not the words of Sal Magluta during the era of the Cocaine Cowboys.  That’s FBI agent Terry Albury.  Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.”  The story is here in this Sunday’s New York Times Magazine section.  Albury stated:  We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.”  Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.”  For sending these documents, Albury was arrested and sentenced to 4 years in prison.  

Sometimes, the bad guys in the courtroom aren’t the defendants.  

2.  In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.”  Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.”  Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to. 

They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’  Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”

Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table.  That’s why reform is necessary.  Boss and Kapp first suggest calculating loss based on actual loss, not intended loss.  Or, in the alternative, to find that the intended loss was substantially likely to occur.  These seem like great places to start.  We all know that Medicare never pays what it’s been billed – if it pays at all.  What do blog-readers think?

3.  I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country.  But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie.  For years, I worked by her side as an APD and then looked up to her on the state bench in Miami.  She is a force and an incredible asset to our community.  And how great is it to have a former criminal defense attorney as the top dog?!  The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15.  You can watch it live here on YouTube.  Congratulations, Chief Judge Sayfie!

4.  Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire.  If you haven’t watched it, the show is a must-see.  I know David O. Markus likes it.  Here is Michael K. Williams/Omar in a classic scene:

Miami History Part 1

By Michael Caruso:

Thank you David for inviting me to contribute to your blog. For the last 15 years, your blog has been an integral part of our local federal court culture, and I'm flattered that you thought of me. 

For my first post, I wanted to offer an alternative to the current Netflix offering about Miami. In 1994, journalist Susan Orlean wrote an article based on her investigation of the 1994 arrest of horticulturist John Laroche and in south Florida for poaching rare orchids in the Fakahatchee Strand State Preserve.

Two years later, Orlean wrote another south Florida story. Orlean's story—The Homesick Restaurant—describes Juan Saizarbitoria and his restaurant in Miami and Havana.  Here's an excerpt:

"Saizarbitoria had grown up in the Basque region of Spain, and he had made his way to Cuba in the late thirties by sneaking onto a boat and stowing away inside a barrel of sardines. When he first arrived in Havana, he pretended to be a world-famous jai-alai player, and then he became a cook at the jai-alai club. In 1940, he opened Centro Vasco, and he made it into one of the most popular restaurants in Havana. Having lost the restaurant to Castro, in 1962, Juan Saizarbitoria moved to Miami and set up Centro Vasco in exile." 

I had not known of Saizarbitoria or his restaurant before coming across the article. Orlean reports from Centro Vasca in Miami and also visits the Havana restaurant taken away from Saizarbitoria. I fear that not much of this type of Miami history will be preserved, and I thought I'd share.

Blog changes

 I started this blog as a pet project back in 2005 as a way to keep up with our District and federal courts in general.  I didn't really think anyone would read it when I started.  But after 4044 posts and 15,104 comments over 16 years, we have 5.3 million views and lots of good tipsters.  

But now it's time to add some new voices and perspectives.  So you are going to start seeing some new authors pop up.  

Our all-star lineup includes:

John R. Byrne

Michael Caruso

Marissel Descalzo

Alaina Fotiu-Wojtowicz 

Robert Kuntz

Margot Moss  

Phil Reizenstein

I am going to continue to post (so definitely keep sending your tips), but it's way past time for the blog to open up a little bit.

Thanks for being part of the small federal family we have here in the Southern District and enjoy the new upcoming posts by our new contributors!

I'm really excited about this -- I hope you are too.

Houston, we have a problem.

 At least it's not Florida this time.  It's Texas.  It's always Texas or Florida...

The Supreme Court 5-4 last night did not take action to stop Texas' new abortion law.  From SCOTUSBlog:

Nearly 24 hours after a Texas law that bans nearly all abortions in the state went into effect, the Supreme Court on Wednesday confirmed what it had previously only implied through its failure to act the night before: The court rejected a request to block enforcement of the law, which abortion providers say will bar at least 85% of abortions in the state and will likely cause many clinics to close, while a challenge to its constitutionality is litigated in the lower courts. The vote was 5-4, with Chief Justice John Roberts joining the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – in dissent.

The case, Whole Woman’s Health v. Jackson, had come to the court on an emergency basis on Monday, with a group of abortion providers asking the justices to intervene. It was the first major test on abortion rights for the Roberts court since the death of Justice Ruth Bader Ginsburg in September 2020, and Ginsburg’s replacement by the conservative Justice Amy Coney Barrett was likely decisive in the outcome.

The court’s inaction on Tuesday night that allowed the Texas law to go into effect and its brief order on Wednesday night denying any relief to the abortion providers unquestionably represented a victory for abortion foes, but the five-justice majority emphasized (and Roberts in his dissent reiterated) that the court was not endorsing the constitutionality of the law. The ruling also revealed a court that is deeply divided, not only on the merits of the case but also on the procedures that the court uses to resolve these kinds of emergency appeals.

The law, known as S.B. 8, is one of several so-called “heartbeat bills” that Republican legislatures have enacted around the country as part of an effort to overturn Roe v. Wade and Planned Parenthood v. Casey, ...

***

In a one-paragraph, unsigned order issued just before midnight on Wednesday, the court acknowledged that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But that was not enough to stop the law from going into effect, the court explained, because of the way the law operates. Specifically, the court observed, it wasn’t clear whether the state officials – a judge and court clerk – and the anti-abortion activist whom the abortion providers had named as defendants “can or will seek to enforce the Texas law” against the providers in a way that would allow the court to get involved in the dispute at this stage.

In his dissent, which was joined by Breyer and Kagan, Roberts described the Texas scheme as “unprecedented.” By deputizing private citizens to enforce the law, Roberts stressed, the law “insulate[s] the State from responsibility.” He wrote that because of the novelty and significance of the question, he would stop the law from going into effect to preserve the status quo and allow courts to consider “whether a state can avoid responsibility for its laws in such a manner.”

Breyer wrote his own dissent, which was joined by Kagan and Sotomayor, in which he acknowledged the procedural challenges posed by the Texas law but expressed skepticism as to “why that fact should make a critical legal difference” when “the invasion of a constitutional right” is at issue.

Sotomayor, joined by Breyer and Kagan, described the court’s order as “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny,” she wrote, “a majority of the Justices have opted to bury their heads in the sand.”

Both Breyer and Sotomayor also noted that, within the first day that the Texas was in effect, clinics in the state began turning away most or all abortion patients.

Kagan’s dissent, joined by Breyer and Sotomayor, focused largely on the process by which the court reached its ruling on Wednesday night. She complained that, “[w]ithout full briefing or argument, and after less than 72 hours’ thought, this Court greenlights the operation of Texas’s patently unconstitutional law banning most abortions.” The result, she concluded, “is emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

The Texas case will now return to the lower courts, where litigation will continue. ***

Biden has been a big disappointment on criminal justice reform so far

 I'm still hoping he can turn things around.  But he has been extremely tepid with criminal justice reform.  The latest is this potential action -- commuting sentences only for low level drug offenders who were temporarily released from BOP custody during the pandemic.  There has been a big push not to have any of these low level offenders go back in.  Why only drug offenders? Makes no sense.  

From the N.Y. Times:

In interviews, officials have subsequently confirmed that focus. As a first step, the Justice Department will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office, they said.

It is unclear whether the Biden team is leaning toward commuting the sentences of the nonviolent drug offenders to home confinement, reducing the length of their sentences to bring them within the normal window for home confinement or a mix of the two.

The officials said focusing on nonviolent drug offenders, as opposed to other types of criminals, dovetailed with Mr. Biden’s area of comfort on matters of criminal justice reform. In his campaign platform, Mr. Biden had said he pledged to end prison time for drug use alone and instead divert offenders to drug courts and treatment.

Inimai Chettiar, the federal director of the Justice Action Network, called the idea a good start but also questioned the basis for limiting it to some nonviolent drug offenders, saying there was “no scientific evidence” for restricting the help to that category. She suggested another explanation. “Politically, it’s an easier group to start with,” Ms. Chettiar said.

In addition, officials said, the Justice Department is studying other options that could help keep different groups from being forced back into prison. Another idea under consideration is to petition the courts to let some individual inmates stay in home confinement under a “compassionate release” law.

“There are many things that go into a retirement decision."

 That was Justice Breyer in the N.Y. Times.  The whole article is worth a read... but here are some snippets:

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

***

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.

“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.”

Latest COVID order from SDFLA.... (UPDATED)

 ...is here.  It allows for the use of Zoom-hearings under the CARES Act.  There was some rumbling about whether jury trials (or grand juries) would be suspended again, but that didn't happen.  It's all systems go despite the all-time high COVID numbers.  There's also an order requiring all court employees to be vaccinated or tested twice weekly. I like it.  Unfortunately, though, this does not apply to the CSOs or Marshals.  

Even if there is no general order continuing trials, some judges are doing it on their own.  See this order from Judge Cooke: