All posts in Supreme Court

Why Not Go With Eight Members on the Supreme Court?

I had the huge privilege of attending the Central District Judicial Conference annual meeting in Ojai last weekend.  I took a bunch of notes and have some interesting stuff to write about.  I will put it all into a couple of blog posts over the next few days.

The first program was called “Panel Discussion: Top Supreme Court Cases to Watch” featuring Deanell Tacha, Duane and Kelly Roberts Dean and Professor of Law at Pepperdine Law School, and Professors Robert J. Pushaw and Barry P. McDonald – all three obvious constitutional pros with the ability to talk constitutional law talk in plain English.  The cases they discussed will be a separate blog.   Read more…

Some Thoughts on Justice Antonin Scalia

This is a short article I wrote which was published on February 29, 2016 on the NACTT Academy website “Consider Chapter 13.”

Thoughts on Justice Antonin Scalia
by M. Jonathan Hayes
February 22, 2016

Antonin Scalia is a personal hero of mine.  He was not without flaws of course and I suspect that he and I would be on the opposite side of most issues, once the voting began.  I didn’t care for his taunting manner and his drive to get a laugh at the expense of attorneys arguing before the Supreme Court.  His dissents were sometimes embarrassing.  He sometimes all but called his colleagues morons.   I agree with other commentators that the predictability of his views lessened his influence with his colleagues.   Read more…

Learning from Antonin Scalia – The Story of the “Hapless Law Clerk”

I found this story by Justice Scalia’s former law clerk John Duffy on Scotusblog.  It discusses Scalia’s concurring opinion in Conroy v. Aniskoff (1993).  It contains a great lesson about the usefulness of legislative history.  The full article is here.

It seems there is a federal law somewhere that says that if a governmental agency forecloses on property, the redemption period (assuming there is one I guess), is extended or “tolled” by the amount of time the debtor is in the military.  Sounds good so far.  Who could be against that?  Some guy gets drafted or volunteers and schleps off to somewhere to defend freedom, he should get more time to redeem property being sold because he didn’t pay some tax.  Does the additional time however apply to a career military man?  In that case, the tolling period might be 30 years?  He just doesn’t have to pay his taxes until he retires?  That’s what happened in Conroy.  The Supreme Court ruled – 9-0 – that the code says what it says, that if it doesn’t make much sense, tell Congress.  The majority said that the language is clear – yes it’s tolled for whatever time the man is in the military.  The opinion then went on to explain that the ruling is justified by the legislative history.

Scalia separately concurred, taking the majority to task and giving us a nice lesson to remember, to wit – to hell with legislative history.    He writes, Read more…

Writ of Certiorari Sought in Student Loan Case

Tetzlaff v. Educational Credit Management Corp.

Pending petition

Docket No. Op. Below Argument Opinion Vote Author Term
15-485 7th Cir. TBD TBD TBD TBD TBD

Issue: (1) Whether the Brunner test is the proper standard for determining “undue hardship” for the discharge of student loan debt; and (2) whether, if the Brunner test is the proper standard, that test should be (i) modified to eliminate the requirement that a debtor in the past have “made a good faith effort to repay the loans,” and (ii) clarified to establish that a debtor need only prove by a preponderance of the evidence that his inability to pay is “ likely to persist for a significant portion of the repayment period,” not that there is a “certainty of hopelessness.”

Date Proceedings and Orders
Oct 15 2015 Petition for a writ of certiorari filed. (Response due November 16, 2015)
Nov 10 2015 Order extending time to file response to petition to and including December 16, 2015.

Texas v. Johnson – The Flag Burning Case 1989

These are some of the most eloquent words ever written.  They make me happy to be an American, and a lawyer.  This is Justice Kennedy’s entire concurring opinion.

JUSTICE KENNEDY, concurring.

I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks.

The case before us illustrates better than most that the judicial power is often difficult in its exercise.  We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete.  For we are presented with a clear and simple statute to be judged against a pure command of the Constitution.  The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like.  We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.  And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision.  This is one of those rare cases.

Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle.  And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce.  Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit.  The case here today forces recognition of the costs to which those beliefs commit us.  It is poignant but fundamental that the flag protects those who hold it in contempt.

For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself.  But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution.  So I agree with the Court that he must go free.

Interesting Article About Justice Thomas from the Volokh Conspiracy

I recently read a fairly snide article suggesting that Justice Thomas simply regurgitates the parties’ briefs when he writes opinions.  This is a great explanation from the Volokh Conspiracy about “the real story.”

Wellness – What a Great Read!

I finally got around to writing my brief on the Wellness case.  I already forgot what a great read it is, especially if you like fundamental constitutional law which usually means you like American history.

The Wellness opinion thankfully seems to resolve the issue of what to do when the bankruptcy court’s authority seems to be infringing on the “constitutional birthright” of the Article III courts as Justice Roberts likes to say.  For sure now, a Stern matter,  that is a a matter that Congress designated as core but is possibly unconstitutionally core, may be decided on a final basis by a bankruptcy court if the parties consent.  And consent does not have to be express, only “knowing and voluntary.”

Justice Sotomayor has some good lines. Read more…

Third Annual Important Supreme Court Decisions from Recent Terms — LACBA program with Ken Klee and Erwin Chemerinsky

My last program as programs chair for the Los Angeles County Bar Association — Bankruptcy Section is called the Third Annual Important Supreme Court Decision from Recent Terms with legal gurus Dean Erwin Chemerinsky and Ken Klee.  I’m moving on to vice chair of the section —  I am sure all the judges I have been hounding/begging to participate on panels for the last two years will be happy!

I cannot even explain how cool I felt to email with them both.  Program info below.

Third Annual Important Supreme Court Decisions from Recent Terms
August 4, 2015 at the Los Angeles County Bar Association
Please join us for the Commercial Law and Bankruptcy Section’s Third Annual Important Supreme Court Decisions From Recent Terms program, where experts Dean Erwin Chemerinsky and Kenneth Klee will discuss recent bankruptcy-related Supreme Court opinions. The program will be of great interest to both consumer and corporate bankruptcy practitioners alike.
Erwin Chemerinsky, Dean, UC Irvine School of Law 
Kenneth N. Klee, Klee Tuchin Bogdanoff & Stern LLP 

Supreme Court Stat Pack for 2014 Term Available

The website SCOTUSBLOG has posted its Annual Supreme Court Stat Pack for the 2014 Term.  You can access the whole thing here.  52 pages of stats!

Here are a few stats that jumped out at me.

There were 16 cases from the 9th Circuit – out of 74 total.  The Supremes affirmed the 9th Circuit six times and reversed 10 times.

Nineteen cases out of 74 were decided 5-4.  That’s 26% of the cases.

Total cases decided in 1990 was 150.  Throughout the 2000s, the total has been right around 75.

Read more…

Prof Mark Scarberry Offers Nice Analysis of Caulkett (and Dewsnup)

Today, in Bank of America v. Caulkett (and Bank of America v. Toledo-Cardona), the Supreme Court reversed the Eleventh Circuit and held that a debtor may not strip off a wholly underwater mortgage in a Chapter 7 case.  The Court noted that the respondents had not asked it to overrule Dewsnup. The meaning given by Dewsnup to the term “allowed secured claim” in section 506(d) is controlling; that meaning does not involve the existence of any value backing up the claim.  The opinion is here:

A few of us (maybe only a very few) think Dewsnup was correctly decided.  I think it was. It’s particularly difficult to understand how section 722 would retain meaning (and how its limits would be respected) if the Court had decided Dewsnup the other way. Justice Scalia’s attempted response to this point in his Dewsnup dissent is unpersuasive.

Justice Thomas’s opinion for the Court includes several rather obvious digs at the Court’s Dewsnup decision. (Note that Justice Thomas didn’t participate in Dewsnup; I think he would have joined Justice Scalia’s dissent if he had participated.)

Read more…