RIP David Souter

We need more of him.

From his former law clerk, Noah Feldman:

David Souter, the former US Supreme Court justice who died at 85 on Thursday, was sometimes mistakenly thought to have turned into a liberal after being nominated by President George H.W. Bush on the expectation that he would be an ideological conservative.

History will show the opposite: Souter was among the most consistent, principled justices ever to have sat on the Supreme Court in its 235-year history. His jurisprudence was steeped in the value of precedent and the gradual, cautious evolution of the law in the direction of liberty and equality. A New Englander to the core, he said what he meant and meant what he said. At a moment of unprecedented threat to the rule of law, Souter’s career stands as a model of judicial strength and resilience tempered by modesty and restraint. If the court follows his example, the Republic will survive even the serious dangers it is facing now.

At his confirmation hearings, relics of another time, Souter spoke openly of his admiration for Justice John Marshall Harlan II, known for his explanation that constitutional liberty is derived from a “tradition” that “is a living thing” and cannot be “limited by the specific guarantees” of the text. The key to Souter’s judicial philosophy was the idea, derived from the common law method of precedent and also linked with the conservatism of Edmund Burke, that the rule of law works best to protect us when it proceeds by slow steps attuned to social change, not by leaps forward or backward that produce backlash and end up rejected.

The most famous expression of Souter’s precedent-based view came, with characteristic modesty, in a joint opinion that he cowrote with Justices Sandra Day O’Connor and Anthony Kennedy in the 1992 case of Planned Parenthood v. Casey. The Casey decision upheld the abortion right laid down in Roe v. Wade on grounds of stare decisis, respect for precedent, even as it distanced itself from Roe’s logic.

The justices explained that overturning Roe “would seriously weaken the court’s capacity … to function as the Supreme Court of a Nation dedicated to the rule of law.” In a sentence that exemplifies Souter’s complex-yet-subtle style, the justices wrote that the court’s power lies “in its legitimacy, a product of substance and perception that shows itself in the People’s acceptance of the judiciary as fit to determine what the Nation’s law means and to declare what it demands.”

Jewish American History Month at the court

It was a packed house yesterday at the Federal Courthouse as Beth Bloom led the way for a wonderful event -- it started with a video put together by Bobby Gilbert (featuring Judges Stanley Marcus and Joan Lenard) and then moved into an interesting discussing between Judge Roy Altman and Dan Senor. Good stuff.

Chief Justice Roberts implores judges to check the other branches

 From the NY Times:

Chief Justice John G. Roberts Jr. defended the independence of the judiciary and denounced any attempt to impeach judges over disagreements with their rulings during rare public remarks on Wednesday evening.

“Impeachment is not how you register disagreement with a decision,” the chief justice told a crowd of about 600 people, mainly lawyers and judges, gathered in Buffalo, his hometown.

The remarks were his first since issuing a similar, though also unusual, written statement in March in response to threats by President Trump and his allies to impeach federal judges who have issued decisions against administration policies.

The chief justice did not mention the president directly in his comments on Wednesday, and he did not elaborate further in his answer about threats of impeachment, which he gave in response to a direct question during an event to commemorate the 125th anniversary of the U.S. District Court for the Western District of New York.

But the commentary was nevertheless notable given that justices typically avoid weighing in on political matters. His comments came less than a week after another justice, Ketanji Brown Jackson, denounced attacks on the judiciary during remarks at a conference for judges held in Puerto Rico.

Justice Jackson criticized what she called “relentless attacks” on judges, as well as an environment of harassment that “ultimately risks undermining our Constitution and the rule of law.”

“ Across the nation, judges are facing increased threats of not only physical violence, but also professional retaliation just for doing our jobs,” Justice Jackson said.

Chief Justice Roberts spoke during an hourlong conversation with U.S. District Court Judge Lawrence J. Vilardo, a longtime friend, who at one point asked the chief justice to expound on his views on judicial independence.

“It’s central,” Chief Justice Roberts responded. He added that the job of the judiciary was “to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence.”

The note to judges -- don't bend the knee: 

The Zone of Death

By John R. Byrne 

Not SDFLA related, but fascinating nonetheless. Is there a Zone of Death in this country where you can commit a crime without consequence? Arguably, yes. The other day, attorney Derek Leon told me about a crazy federal criminal case arising out of the District of Wyoming. 

Back in 2005, a man named Michael Belderrain shot and killed an elk within the Montana section of Yellowstone National Park (the park spans three states--Montana, Wyoming, and Idaho). Because Congress, for administrative convenience, placed the entire park within the federal district of Wyoming, federal prosecutors charged him in the District of Wyoming with unlawfully transporting illegally possessed wildlife, among other charges.

Belderrain objected to the prosecution, arguing he wasn't subject to prosecution because of the interplay between two provisions of the U.S. Constitution. Specifically, Article III, Section 2 states that "[t]he Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” But the Sixth Amendment's vicinage requirement demands that the jury be "of the State and district wherein the crime shall have been committed." In Belderrain's case, that was impossible.  No jurors lived within that sliver of land that fell within the state of Montana and the district of Wyoming. (Note: no prosecution under state law was possible because Yellowstone is a federal enclave and states can't enforce state law within the park).

Ultimately, the district court rejected Belderrain's argument, though it acknowledged the problem, writing: "The District of Wyoming is the only district court that includes land in multiple states. Congress created this anomaly when it placed Yellowstone National Park in the District of Wyoming. The Court recognizes the conundrum that presents itself because the literal interpretation of Article III and the Sixth Amendment make it impossible to satisfy both provisions when a crime is committed in the portions of Yellowstone National Park that fall outside of the state of Wyoming." United States v. Belderrain, No. 07-CR-66-D, 2007 WL 9718010, at *2 (D. Wyo. Aug. 8, 2007), aff'd, 309 F. App'x 259 (10th Cir. 2009).

Belderrain ended up taking a plea deal where he promised not to appeal the issue to the 10th Circuit. The Atlantic covered the story in a podcast you can find here. 

Before Belderrain committed his crime, a Michigan State Law professor had sounded the alarm about the Zone of Death in a law review article, which I've posted below. Still, he hasn't succeeded in getting Congress to close the loophole.

Be careful in Yellowstone National Park!

The Perfect Crime by John Byrne on Scribd

BREAKING -- We have a new magistrate judge

Congrats to Detra Shaw-Wilder. The judges voted today and she emerged victorious.  

From her bio:

Detra Shaw-Wilder is a litigation partner at Kozyak Tropin & Throckmorton. She concentrates her practice in complex commercial litigation, business law matters, corporate shareholder disputes and high-level contract and commercial financing disputes. Detra regularly litigates in state and federal court. Having been involved in significant litigation, she has a broad range of trial experience in commercial cases.

Detra frequently participates in panel discussions on complex litigation matters and trial skills programs. She is currently Chairperson of the Business Litigation Committee of the Florida Bar Business Law Section and Vice President of the University of Miami Law Alumni Association. Detra is a past Board Member and Region XI Director for the National Bar Association. She is also a member of the Federal Grievance Committee for the US District Court for the Southern District of Florida and previously served on the Florida Bar Grievance Committee for the Eleventh Judicial Circuit of Florida.

Detra is passionate about community involvement and is involved in several charitable organizations and is a co-founder of the Kozyak Minority Mentoring Foundation. Outside of the practice of law, Detra is a dedicated sports mom and enjoys spending time on the soccer pitch or track field watching her two teenage kids participate in sports.

It's Law Day!

 So why not post this heated exchange from the Supreme Court (here's the whole oral argument) earlier this week (via Law&Crime):

“I had an out of body experience listening to what we argued,” Blatt said of the arguments made by opposing counsel, Roman Martinez, who argued on behalf of the child and Assistant to the Solicitor General Nicole Reaves, who argued in support of the child on behalf of the Department of Justice.

Justice Ketanji Brown Jackson interjected, “I’m over here really trying to figure out what you argued below,” and said that it “might be a little unfair” to characterize Blatt’s argument as entirely consistent throughout the litigation.

Blatt pushed back and denied any inconsistency.

“What is a lie and inaccurate is that we ever said that this court should take the same language and should define it differently,” Blatt said, referring to an argument advanced earlier by the DOJ. “They’re adding words to our mouth.”

Justice Neil Gorsuch interrupted Blatt’s rant.

“You believe Mr. Martinez and the Solicitor General are lying?” asked an incredulous Gorsuch.

“In oral argument? Yes, absolutely,” answered Blatt.

As Blatt tried to elaborate, Gorsuch cut in, with a warning.

“I think you should be more careful with your words,” the justice said.

“Okay well they should be more careful in mischaracterizing a position by an experienced advocate of the Supreme Court, with all due respect,” countered Blatt.

Chief Justice John Roberts jumped in and began to read from A.J.T.’s brief in an apparent attempt to provide context for the inconsistency her opponents had referenced.

“That part we never said,” Blatt interrupted, questioning a portion of the brief that quoted her client’s filing. “Are they quoting?”

“Well, they have quote marks around it,” responded the chief justice to a chuckling courtroom.

Later in the argument:

“Well, it’s part of your job, Justice Kavanaugh, to set the law sometimes and I understand it’s easier for you and you have a lot going on not to set the law,” Blatt charged until she was shut down by Gorsuch, who interjected that he was “still troubled” by the suggestion that opposing counsel “lied.”

“Okay, let’s pull it up here,” was Blatt’s quick retort.

Gorsuch requested that Blatt “reconsider that phrase.”

“People make mistakes,” came Gorsuch’s response, sounding calm. “You can accuse people of making mistakes — but lying,”

“That’s fine,” Blatt interrupted repeatedly.

“Ms. Blatt, if I might finish,” said an exasperated Gorsuch. “Lying is another matter.”

Gorsuch next read from Blatt’s brief as Blatt peppered with interruptions of, “yep,” and “right” several times.

When Blatt tried to interrupt again and continue her argument, Gorsuch snapped, “I’m not finished.” The justice went on to ask that while reasonable people could disagree, couldn’t the argument in Blatt’s brief could be interpreted in precisely the way opposing counsel had characterized it in their comments to the bench?

“No,” said Blatt, then tried to continue.

“Ms. Blatt!” interrupted an audibly annoyed Gorsuch.

After a bit more exchange, Gorsuch finally demanded that Blatt withdraw her previous accusations of lying against opposing counsel — which Blatt finally did.

Showdown

Judge Kathy Williams was rightfully beside herself that the Florida AG instructed the police to defy her order.  From the Miami Herald:

A Miami federal judge said Tuesday she was “surprised and shocked” when state Attorney General James Uthmeier first told police officers to obey her order not to arrest undocumented immigrants entering Florida but later said he “cannot prevent” them from making arrests under a new state law. U.S. District Judge Kathleen Williams is considering whether to find Uthmeier in contempt of court. Williams said she would issue a preliminary injunction late Tuesday prohibiting all state law enforcement officials and police agencies from arresting undocumented immigrants who come into Florida. She also scheduled a critical hearing for late May that could lead to Uthmeier being held in contempt of court for flouting her prior restraining order in the immigration case.

Williams said the state attorney general’s directive telling police officers that they could make arrests “threw everything out of whack,” leaving her with no choice but to hold a show-cause hearing to allow Uthmeier to explain why she should not hold him in contempt of her order. The judge gave lawyers for the attorney general a brief break during Tuesday’s hearing to consult with him about withdrawing his advice to police officers to ignore her order, but they said Uthmeier was not retreating from his position. “What I am offended by is someone suggesting you don’t have to follow my order, that it’s not legitimate,” Williams said.

In other news, we need a better logo for the blog... check out this law firm's logo, which apparently a federal judge didn't like (from the NY Times):

A purple dragon dressed in a business suit seemed like a natural choice for a logo when Jacob A. Perrone, a lawyer in East Lansing, Mich., recently opened a new firm and named it Dragon Lawyers.

He noted that some lawyers liked to call themselves “bulldogs” and said the dragon symbolized “aggressive representation.”

But a federal magistrate judge, Ray Kent, was not impressed. He was so disgusted by the dragon that he struck a lawsuit filed by Mr. Perrone on behalf of an inmate who had accused jail officials in Clinton County, Mich., of being “deliberately indifferent” to her when she started vomiting last year.

In a brief order issued on Monday, Judge Kent noted that “each page of plaintiff’s complaint appears on an e-filing which is dominated by a large multicolored cartoon dragon dressed in a suit, presumably because she is represented by the law firm of ‘Dragon Lawyers PC © Award Winning Lawyers.’”

The Dispatch buys SCOTUSblog

It's the end of an era. 

SCOTUSblog has been acquired by The Dispatch.

There have been rumblings about one of the OG Blogs being sold for a variety of factors (including the arrest of one of the founders, Tom Goldstein).

Now it's official.

Amy Howe, Tom's wife and co-founder of the blog, writes about the sale here:

SCOTUSblog is delighted to announce that it has been acquired by Dispatch Media, Inc., and will round out The Dispatch’s coverage of the Supreme Court and the rule of law.

This blog began nearly a quarter of a century ago as a way to promote our legal work. Over the years, it has evolved into a resource on all things related to the Supreme Court, from soup-to-nuts coverage of the cases argued at the court to retirements, confirmations, and other special features. We have scaled back our coverage in recent years as the costs of that coverage grew, but through our partnership with The Dispatch, we will be able to restore SCOTUSblog’s publishing capabilities, including expanded analysis for all merits cases and oral arguments.

The Dispatch plans to maintain SCOTUSblog as our users have come to enjoy it and will continue to offer its existing content to all readers at no cost — while bringing back some of the site’s most beloved features, such as the Stat Pack. The site will also continue to remain a source of unbiased coverage of the Supreme Court.

Another OG blogger, David Lat, will have involvement in SCOTUSblog.  From Lat's newsletter:

And I’m delighted to share that I have a personal connection to this news: as noted in Steve Hayes’s post, I’m partnering with The Dispatch as it works toward becoming, as Dispatch president Michael Rothman put it, “the definitive source for legal news and analysis in the United States.” So in the weeks and months ahead, expect to hear my voice on Advisory Opinions and read my writing in SCOTUSblog.

When I first entered legal blogging around 20 years ago, launching Underneath Their Robes (2004) and then Above the Law (2006), I drew inspiration from Tom Goldstein and Amy Howe, who founded SCOTUSblog in 2002—so it’s wild for me to think that I’ll now be contributing to SCOTUSblog’s pages. 

Congrats to Tom, Amy, David, and The Dispatch.  SCOTUSblog has always been the place to go for Supreme Court news, and I'm sure that will not change.