"Suffer and suffer until you get what you want."

 Coach Spo sounds like a criminal defense lawyer!  GO HEAT:

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And Rumpole, even though you are a Heat hater, you may come around after seeing that Spo quoted one of your favorite speeches after the game:

Heat Coach Erik Spoelstra referenced Teddy Roosevelt’s Man in the Arena speech in his post game comments. One of best speeches ever. Here is excerpt. @HeraldSports @MiamiHEAT #MiamiHeat #Heat pic.twitter.com/WXyMo7RLr3

— Michelle Kaufman (@kaufsports) May 30, 2023

A new alliance on the Supreme Court...

 ... and it's not who you might think: Justices Gorsuch and Jackson.  Via David Lat (you should subscribe to his newsletter if you haven't already):

The two justices have joined forces in four opinions so far this Term, per Lydia Wheeler of Bloomberg Law: Tyler v. Hennepin County, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined; Polselli v. Internal Revenue Service, where Justice Jackson wrote a concurrence that only Justice Gorsuch joined; Bittner v. United States, where Justice Jackson was the only member of the Court to join Justice Gorsuch’s majority opinion in full; and Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined. In addition, Justice Jackson was the only justice to join Justice Gorsuch when he dissented in December from the grant of certiorari in Arizona v. Mayorkas (the Title 42 case that the Court recently dismissed as moot).

What’s behind this joining of forces? I agree with Professor Anthony Michael Kreis, who told Bloomberg Law that the justices’ shared concern about “protecting the little guy” reflects Gorsuch’s libertarian worldview and Jackson’s concern for civil rights. I also concur with Professor Dan Ortiz, who notes that their apparent support for the rule of lenity is consistent with Gorsuch’s concern about overreaching government and Jackson’s pre-robescent career as a public defender.

I also wonder whether it might reflect two other things. First, in their inaugural terms on the Court, both Justices Gorsuch and Jackson were surprisingly outspoken on the bench for junior justices (and got very different coverage for it, as noted by Ted Frank—mostly critical for Justice Gorsuch, and mostly “Yas Queen!” for Justice Jackson). As two justices less inclined to show deference to senior colleagues and more willing to express their views openly, it makes sense for them to team up in separate opinions that opine a bit more broadly than their colleagues.

Second—and this is entirely speculation on my part, but drop me a line if you have actual info—I wonder if the two might be personally friendly or copacetic. Cf. Justice Antonin Scalia and Justice Ruth Bader Ginsburg, who enjoyed an across-the-aisle friendship over many years together on the Court (even if it didn’t manifest itself in their votes or opinions). Maybe Justice Jackson can invite Justice Gorsuch, an avid outdoorsman who presumably enjoys wilderness-y stuff, to a viewing party for Survivor, one of her favorite shows. In her recent commencement speech at American University’s Washington College of Law, Justice Jackson cited Survivor for various life lessons, including “understanding that this game is about existing both in community and conflict”—wisdom that might explain her alliance with Justice Gorsuch.

"The taxpayer must render unto Caesar what is Caesar’s, but no more."

 That was Chief Justice Roberts channeling his inner Milton Hirsch in Tyler v. Minnesota. 

From the conclusion:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U. S., at 49. A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more. Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment. Tr. of Oral Arg. 27. The judgment of the Court of Appeals for the Eighth Circuit is reversed.

Meantime, the NY Times has this message for the Supreme Court:

The Supreme Court will soon issue rulings, on affirmative action, student debt relief, and the First Amendment and gay rights, that have the potential to affect the American public for generations. And yet public approval of the court is at a historic low. This was true even before the seemingly endless stream of reports over the past few weeks about the justices’ lax ethics. Since a conservative supermajority took control of the court in 2020, it has blown through the guardrails courts are expected to observe — showing little respect for longstanding precedent, reaching out to decide bigger questions than it was asked to and relying on a secretive “shadow docket” to make hugely consequential rulings with no public explanation.

Even Republicans who are happy with the Supreme Court’s recent rulings are voicing their concerns. “What I would urge the court to do is take this moment to instill more public confidence,” Senator Lindsey Graham of South Carolina said during the Senate Judiciary Committee hearing on ethics at the Supreme Court on May 2. “I think we’d all be better off if they did that.”

Mr. Graham is right: The nine justices — unelected and employed for life — are shielded from the usual mechanisms of democratic accountability, and so they depend on a high level of public trust like no other institution of American government. Their failure to take the steps necessary to restore that trust, steps that are entirely within their control, is undermining their legitimacy as one of the country’s most vital institutions.

Instead the justices are behaving as though the same laws they interpret for everyone else don’t apply to them. They’re not entirely wrong. In most other government jobs, people can be fired for disregarding laws or ethical obligations, but the justices can be confident that they will face no consequences. Federal laws that explicitly apply to them — involving, for example, financial disclosures and recusal standards — are not enforced, leaving the justices to self-police, and the highest court is not bound by a code of ethics as the lower federal courts are.

Chief Justice Roberts gives speech

And it's pretty interesting.  One thing he says was how hard the decision was to put up a fence aroudn the Supreme Court.  He also pushes back on the idea that Congress needs to enact ethics rules for the Justices. Here's the video of the event:

LIVE: US Supreme Court Chief Justice John Roberts will speak at the American Law Institute's annual dinner https://t.co/G0cfzaGspD

— Reuters (@Reuters) May 24, 2023

KBJ's favorite show is Survivor

 From the AP:

Supreme Court Justice Ketanji Brown Jackson called herself a “Survivor superfan” on Saturday and offered an audience of graduating law school students lessons from the reality TV show.

The show has been on television for 23 years and is now in its 44th season. Jackson said she has seen every episode since the show’s second season.

“I watch it with my husband and my daughters even now, which I will admit it’s not easy to do with the demands of my day job. But you have to set priorities, people. And that’s exactly the first lesson that I have for you today,” she told the graduating class of American University’s law school in Washington.

***

In her address, Jackson described “Survivor,” in which contestants are deposited in a remote tropical location and undertake challenges in the hopes of ultimately winning $1 million, as “great fun to watch.” But she also said it holds “a number of broader lessons that are helpful for becoming a good lawyer.”

One lesson, she said, is to “make the most of the resources that you have,” drawing a parallel to when she was a federal public defender and prosecutors always seemed to have more resources. Jackson said she knows “what it is like to commit to moving forward even when the deck is stacked against you” and also talked about a Survivor contestant with a prosthetic leg who nonetheless prevailed at a difficult challenge involving a balance beam.

“My advice to you is to do your best to shut out distractions, use your time wisely and figure out how to make the most of what you have,” Jackson said.

Other lessons from the show are to “know your strengths” and to “play the long game,” she said.

That last piece of advice could serve the liberal justice well on the Supreme Court, where her colleagues include six conservatives and two other liberals, making it unlikely her views will prevail in some of the term’s most contentious cases when they are announced over the next several weeks.

“Season after season, the players who tend to do really well are those who appear to come in with the understanding that this game is about existing both in community and conflict,” she said of “Survivor.”

Jackson said that players who go far are the ones that “choose optimism, lifting the spirits of the other tribe members, no matter what happens.”

“They try to stay as even-keeled as possible, not getting too carried away by dramatic wins or heartbreaking losses,” she said.

Senate confirms Nancy Abudu to 11th Circuit

 From Reuters:

The U.S. Senate on Thursday confirmed President Joe Biden's nominee to the 11th Circuit U.S. Court of Appeals, overcoming rare Democratic opposition from Senator Joe Manchin.

Nancy Abudu, a lawyer for the nonprofit Southern Poverty Law Center (SPLC) legal advocacy group, was confirmed on a 49-47 vote. She will be the first Black woman to serve on the Atlanta-based 11th Circuit.

Abudu's nomination drew strong Republican opposition, and she faced a new obstacle on Wednesday night when Manchin, a moderate Democrat from West Virginia, broke ranks to oppose advancing her nomination.

Don't snap a pic in federal court

 It happened in the Corollo trial and Judge Rodney Smith is not happy.  The Miami Herald covers it here:

The lawsuit involving Miami Commissioner Joe Carollo was throw into disarray Wednesday morning when the federal judge overseeing the case briefly threatened to send the commissioner’s attorneys to prison over a photo that was taken inside the courtroom. Taking pictures inside federal courtrooms is strictly prohibited and U.S. District Court Judge Rodney Smith was livid when one showed up in a filing from Carollo’s attorneys, Ben Kuehne, Mason Pertnoy and Marc Sarnoff. The picture, which the judge said was included in a sealed document and never shown in court, apparently showed an attorney for the Little Havana businessmen suing Carollo talking to a media member in Smith’s courtroom. Smith did not name them or six other people also shown in the photo, which he said was taken by another attorney, Jesse Stolow, who is part of the defense team and had been attending the proceedings. “This is one of the most egregious reprehensible disrespectful actions you could make against this court. It requires prison time. We will see how it can be avoided,” Smith said. “I’ve never seen something like this in my life. What happens here sets a precedent.”

I still want cameras in federal courts, but I guess that's a long ways away.
 

 

"I also want to underscore my disgust at how outrageous the prosecution’s conduct in closing argument was."

 That was Judge Rosenbaum, concurring with an unpublished 107 page opinion in Pace v. Warden:

The prosecutor’s antics have no place in our system of justice. To recap just a couple of the prosecutor’s egregious remarks, he urged the jurors to im-pose the death penalty rather than send Pace to prison for life be-cause “if anal sodomy is your thing, prison isn’t a bad place to be.” The despicable nature of this comment speaks for itself. Not satis-fied with that, the prosecutor also told the jury to sentence Pace to death because if it did not, it would be “saying that these victims’ lives didn’t matter.” It goes without saying that it is never appro-priate or even permissible to attempt to guilt a jury into a death verdict. These tactics aren’t close to the line or justifiable. They are squarely and obviously improper.

I applaud Judge Rosenbaum for calling out these antics.  But the opinion does not name the prosecutor.  And there are no repercussions for the unethical conduct.  So the conviction is affirmed, and then nothing... what's the message for prosecutors?

Rein em in

Last week I posted about the First Circuit's big decision in Varsity Blues, reining in a rogue federal prosecution.  

The hits keep coming -- this time the Supreme Court unanimously reversed the Second Circuit's "right-to-control" theory which they have been using to punish defendants for decades.  The case is Ciminelli v. United States.  Here's the intro to SCOTUSblog summary:

For decades, the Supreme Court has steadily narrowed the scope of the federal criminal wire fraud statutes, and Thursday’s decision in Ciminelli v. United States is no exception. The court held that the federal criminal wire fraud statutes do not incorporate a “right to control” theory of fraud. The court referenced both federalism and overcriminalization concerns in narrowing the scope of the wire fraud statutes, pushing federal prosecutors to be more precise in articulating fraud cases against suspicious state contractor activity. As Justice Samuel Alito’s concurrence explains, though, the precise outcome for Louis Ciminelli himself or others accused of fraud is less clear.

And in another case, the High Court reversed an honest services conviction in Percoco v. United States.  From SCOTUSblog because the jury instructions were wrong:

Before his 2018 trial, Percoco asked the judge to dismiss the “honest services” charge against him, arguing that a private citizen cannot be convicted of depriving the public of its right to honest services. The court rejected that request, and Percoco was convicted and sentenced to a total of six years in prison. The U.S. Court of Appeals for the 2nd Circuit upheld his conviction.

In an opinion by Justice Samuel Alito, the Supreme Court on Thursday threw out Percoco’s conviction. Like the lower courts before them, the justices declined to adopt a bright-line rule holding that private citizens can never have the kind of fiduciary responsibility to the public that would allow them to be held liable for depriving the public of its right to their honest services.

Percoco’s conviction still cannot stand, the justices ruled, because the instructions that the trial judge gave to the jury in his case were too vague. The judge told the jury, Alito observed, that Percoco “owed a duty of honest services to the public if (1) he ‘dominated and controlled any governmental business’ and (2) ‘people working in the government actually relied on him because of’” his relationship with the government. But that standard does not, Alito continued, provide enough information about what conduct is or is not allowed, nor does it shield against arbitrary enforcement by prosecutors.

So I urge district judges again -- it's okay to grant motions to dismiss and Rule 29s!  It's okay to give defense instructions and not the patterns.  The Supreme Court has your back. 

How involved should judges be in the community?

By John R. Byrne

Happy Friday. Carlton Fields hosted Judges Scola, Altman, and Singhal and the local chapter of the Federal Bar Association for a CLE on judicial ethics. Interesting discussion about how involved federal judges should be in the community (the "Ivory Tower" approach versus active speaking/meeting with practitioners and members of the community). I think our bench is one of the more engaged benches, on the whole. 

Big games tonight for the Heat (ESPN @7:30) and Panthers (TNT @7). 

Prosecution trounced in Varsity Blues appeal

 You gotta check out this First Circuit opinion reversing the Varsity Blues' convictions.  It's exactly why more defendants should fight these weird fraud theories. 47 out of the 50 defendants pleaded out.  Three cases went to trial.   Two were acquitted and one was reversed on appeal.

District judges: we need you to do more to check these crazy prosecutions instead of letting them get all the way to trial.  It's okay to grant motions to dismiss!  You will get affirmed.  And if not, the case will get reversed and then it will be tried.  Nothing lost... These defendants suffered a lot and 47 others pleaded guilty because motions to dismiss this first of its kind theory were denied over and over again.

Real ethical issues versus fake ones

 I've been posting a bunch about the ethical issues popping up with the Supreme Court Justices recently.  From Ginni Thomas to Harlan Crow and so on.  Some of these issues are real concerns, especially Ginni Thomas' role in January 6.  

One issue, though, that I expressed skepticism about last week was Chief Justice Roberts' wife being employed as a legal recruiter.  The more I think about it, the more I don't get the uproar.  She is a lawyer who left her law job because she did not want the appearance of impropriety.  And now she is working as a legal recruiter.  She should not have to step away from her job. 

Here are two articles saying Jane Roberts' job is a nothingburger (Above the Law and Bloomberg).

Interested in your thoughts.

"Supremely Arrogant"

That's the title of Maureen Dowd's NYT op-ed on the Supreme Court.  From the conclusion:

John Roberts cannot accept that these justices are incapable of policing themselves. Despite all the slime around him, he refused to testify before Congress about a court that blithely disdains ethics.

One reason may be, as The Times reported, that the chief justice’s own wife, Jane, has made millions of dollars as a legal recruiter, placing lawyers at firms with business before the Supreme Court.

Even though I’ve been writing since Bush v. Gore that the court is full of hacks and the bloom is off the robes, it is still disorienting to see the murk of this Supreme Court.

 

Gillum Found Not Guilty

 

By John R. Byrne

Not a trial in the Southern District of Florida but a trial with Southern District of Florida ties. Our own David Markus and Margot Moss obtained a "not guilty" verdict on the charge of lying to the FBI for the former gubernatorial candidate. The jury hung on the other 18 counts, but apparently were 10-2 in favor of acquittal on those. Prosecutors say they'll retry Gillum. Lot of national press coverage on this one.

Good luck to the Heat (Saturday @3:30) and Panthers (Sunday @6:30) this weekend.

Breaking -- Biden to nominate 3 for district judgeships

I have it from multiple sources that President Biden has cut a deal with Senators Rubio and Scott to nominate Jackie Becerra, Melissa Damian, and David Leibowitz for the 3 open district slots.  Three great choices.  More on this later, but wanted to get this up.

May the Fourth be with you.

Always.

 

If you are looking for some legal news, check out this new story from ProPublica about Harlan Crow paying for the private school tuition of a boy that Justice Thomas raised as his son.

More News & Notes

 1.  The 3rd Circuit makes filing deadlines 5pm.  I hate this rule. It won't help lawyers and will just move the deadline to a day earlier.  Even my kids can upload their papers until 11:59 at night.  Here's the rule and the reasons for it.

2. Former Judge Michael Luttig says the Supreme Court really needs an ethics code.  Here's the actual statement.  From the conclusion:

Whether the Supreme Court is subject to ethical standards of conduct or not is emphatically not a partisan political issue and must not become one. But just as emphatically, the issue of the Court’s ethical standards of conduct does not present a constitutional question, much less one of any constitutional moment. This is not to say that the issue and question of whether the Supreme Court should be bound to ethical standards in its non-judicial conduct and activities is not important. It is unquestionably important. It is even of surpassing importance. But it ought not be thought of as anything more – and certainly nothing less -- than the housekeeping that is necessary to maintain a Republic.

Lest the Congress and the Supreme Court ill serve the nation in the course of attempting to resolve the constitutionally fraught question before them, they should together address the question with the solemnity and wisdom that the question deserves and requires. If they do but this, they will almost assuredly conclude that the answer they seek is the answer they both should want.  

3.  Gov. DeSantis expands the death penalty... and it looks to be unconstitutional.  Via the WaPo:

Gov. Ron DeSantis (R) expanded Florida’s death penalty law on Monday, signing a measure making it a capital crime to rape a child under the age of 12, a law that could set up a future U.S. Supreme Court case.

Vowing Florida “stands for the protection of children,” DeSantis signed the law during a campaign-style event in Titusville, touting his record on issues involving “law and order.”

The measure, which overwhelmingly passed the Florida legislature last month with bipartisan support, gives state prosecutors the option of seeking the death penalty if an adult is found guilty of the sexual battery of a child.

The law will still go into effect even though it is unconstitutional. In 2008, the U.S. Supreme Court issued a 5 to 4 decision that struck down a Louisiana law that allowed a child rapist to be sentenced to death, barring states from executing child sex predators unless they also murdered their victims.