A Tour of Talent: My Weekend Trip to Harvard University

Ann Marie and Shon R Hopwood at Memorial Church, Harvard University

My wife Annie and I had a wonderful trip to Harvard University.  We stayed at the famous Preacher’s Suite in Lowell House, and Sandy Alexander of WilmerHale was a gracious host.  The following is a recap of our trip.

We toured the Cambridge campus on Saturday.  I gave a short speech to a group of Harvard faculty and alumni at Memorial Church on Sunday morning. That evening the CBS Early Show taped Annie and me meeting Seth Waxman and Noah Levine of WilmerHale at a local Cambridge restaurant.  We had a quick dinner before shuffling back to Lowell House for a Q&A with Harvard undergrads. (Although once some of the law school students heard news of Seth’s appearance, a few of them snuck in as well.) 

First-year Harvard law school student, Sandra Ullman (who was amazingly smart and thoughtful), provided Annie and me with a tour of Harvard law school on Monday morning.  I was able to find a very old copy of Blackstone’s treatise, but unfortunately I could only view it behind glass.  We also observed a criminal law class from the back row.  The discussion was centered on R v Dudley and Stevens, (1884), the English case concerning a shipwreck, a murder and cannibalism on the high seas.  There the Court ultimately held that necessity is not a defense to murder. I enjoyed listening to students formulate answers to questions on necessity and was surprised with their ability to argue a position notwithstanding the unusual factual scenario.  We later had lunch with several of those students. The trip ended with a visit to the WilmerHale office in downtown Boston.    

I left Cambridge with several impressions.  The level of talent there is truly remarkable.  Everyone we had the pleasure of meeting was gifted in a number of areas.  Equally impressive was the level of collegiality there, given the diverse interests.  They made us feel like part of the family, especially at Lowell House.

For me, the highlight of the weekend was finally meeting my friends Noah and Seth in person.  Those two have played a profound role in my life. 

Seth Waxman, Shon R Hopwood, Noah Levine

Weekend Trip to Harvard University

My wife Ann Marie and I are traveling to Boston tomorrow for a three-day trip to Harvard University.  I have been asked to speak to a group of Harvard faculty and undergrad students, and on Monday, I will be sitting in on a criminal law school class.

The trip is exciting for a number of reasons.  For those of you who know my story, I worked with attorneys Seth Waxman and Noah Levine, both of WilmerHale, on the Fellers v. United States case.  Since Fellers ended, we have kept in contact and developed a friendship through a steady stream of telephone, mail, and email correspondence.  On Sunday, I will finally meet Seth and Noah face-to-face. And The Early Show on CBS will also be at Harvard taping part of my trip! 

Sandy Alexander of WilmerHale in Boston is sponsoring the trip.  I will post the details (and possibly some pictures) upon my return to Cockle on Wednesday

Court News for the First Week of March

It was another hectic week at the Court, starting with an order in Kiyemba v. Obama, No 08-1234, where the Court remanded “in light of new developments.”  One of those developments was the fact that all seven petitioners were offered settlements in other countries.  

On Monday, the Court granted certiorari in Michigan v. Bryant, No. 09-150, a case calling for further development on what constitutes a “testimonial” statement under the Confrontation Clause.  The Court addressed the reach of testimonial statements last Term in Melendez-Diaz v. Massachusetts, No. 07-591, and upheld that decision in a one-page order this January in Briscoe v. Virginia, No. 07-11191. 

Tuesday saw the Court hand down three decisions.  In Reed Elsevier v. Muchnick No. 08-103, the Court held that the failure of a copyright holder to possess registration does not prevent federal court subject matter jurisdiction to decide infringement claims over works that are not registered.  The Court, in Johnson v. United States, No. 08-6925, ruled that a “violent felony” under the Armed Career Criminal Act means a crime requiring the use of physical force.  In Mac’s Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac’s Shell Service, Nos. 08-240; 08-372, the Court limited the rights of franchise holders to file an action after a franchise agreement’s termination. 

This week oral arguments were conducted in two closely watched cases of the Term.  The Justices heard argument on Monday in Skilling v. United States, No. 08-1394.  Skilling presents the Court with two issues: 1) what kind of trial court measures should be taken where negative pre-trial publicity pollutes the jury pool; and 2) whether the honest services wire fraud statute is unconstitutional.   SCOTUS Blog provided excellent coverage of the Skilling argument. 

What some have labeled the biggest case of the Term was argued on Tuesday.  The Court heard argument on whether the Second Amendment right to bear arms applies to the states in McDonald et al., v. Chicago, et al., No. 08-1521. (Note: both the petition and petitioner’s merits brief were printed at Cockle).   The mainstream media covered McDonald heavily, including pieces in the Washington Post, New York Times, L.A. Times, Wall Street Journal, and NPR.  Lyle Denniston of SCOTUS Blog also had an illuminating post on the McDonald argument.

The Court conferences today to decide the fate of numerous cert petitions.  The Court’s orders will most likely be released Monday of next week.

Busy Week at the Supreme Court

The Court began the week with a flurry granting two cert petitions on Monday in Los Angeles County v. Humphries, No. 09-350 and Harrington v. Richter, No. 09-587.   In Humprhies, the Court was asked to rectify a circuit split on whether a plaintiff, in a request for declaratory relief, must demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity. (note: the petition for writ of certiorari was printed at Cockle) In Harrington, the question is whether an attorney who fails to investigate and produce forensic evidence supporting the theory of defense—and instead presents it through other trial means—commits ineffective assistance of counsel under the Sixth Amendment. (note: the brief in opposition was printed at Cockle)

The Court also called for the views of the Solicitor General in CSX Transportation v. Alabama Department of Revenue, No. 09-520 and Ortho Biotech Products v. United States ex rel. Duxbury, No. 09-654.

The Court’s full order list can be viewed here.

The Court also has announced four decisions so far this week. In Wilkins v. Gaddy, No. 08-10914, the Court summarily reversed a Fourth Circuit opinion holding that a prisoner’s claim of excessive force is based on the extent of the injury rather than the nature of the force.   The Court summarily reversed again in Thaler v. Haynes, No. 09-273, concluding that their precedent did not “clearly establish” that a judge must reject a demeanor-based explanation for peremptory challenge unless the judge personally observed and recalled the prospective juror’s demeanor.  Wilkins can be viewed here and Thaler here.

With both Wilkins and Thaler, the Court has continued the trend of issuing summary dispositions this Term.  Kevin Russell of SCOTUS Blog noticed this trend in a recent post which can be viewed here. 

On Tuesday, the Court released two more opinions in Hertz Corporation v. Friend, No. 08-1107, and Florida v. Powell, No. 08-1175.  Justice Breyer, writing for the Court in Hertz, stated that the “principal place of business” for purposes of diversity jurisdiction means the place where a corporation’s high level officers direct, control, and coordinate its activities, which Justice Breyer noted, will normally be its corporate headquarters.  In Powell, the Court held that Miranda warnings do not require any magic words and are sufficient if they reasonably convey to a defendant the rights Miranda was designed to protect.  Hertz can be viewed here and Powell here.

Today, the Court released a unanimous opinion in Maryland v. Shatzer, No. 08-680.  The Court held that a “break in custody” lasting two weeks allows police to resume questioning a suspect who had previously invoked his right to counsel.  The opinion can be found here.

New York Times Article on Shon Hopwood

On several occasions we have had attorneys question how Shon is so knowledgeable about the Supreme Court, but yet, is not an attorney.  An article in today’s New York Times answers that question.  The article can be viewed here.

Both Cockle and Shon want to say thank you to all the Cockle clients who have emailed us with kind comments and support.  Those emails have continued our belief that Shon’s skill set benefits our clients in filing briefs to the Supreme Court. 

 ***Several legal blogs have also taken note of Shon’s story.  See SCOTUS Blog,  Volokh Conspiracy, and Above the Law. 

Quon Topside Brief Filed

Today, the Petitioner’s Brief and Joint Appendix were filed in City of Ontario, et al. v. Quon, et al., No. 08-1332.  The Quon case involves the issue of whether the search of a government-issued text-messaging pager used by a SWAT member to send and receive hundreds of personal messages violates the Fourth Amendment right to unreasonable searches and seizures. The merits brief contends that the SWAT member had no “expectation of privacy” in the exchange of messages made through use of a government pager and that even if there was an expectation, the search in Quon was “reasonable.”

The Respondents’ Brief is due within 30 days unless an extension is granted.

The Court has not set a date for argument.

McDonald v. City of Chicago—The Reply Brief

Today, Cockle filed the Petitioner’s Reply Brief in McDonald v. City of Chicago, No. 08-1521.  In that brief, McDonald’s counsel of record, Alan Gura, once again calls on the Court to overrule The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), or in the alternative, hold that the Due Process Clause incorporates the Second Amendment right to bear arms.  The Reply Brief can be viewed here. 

While the Reply Brief highlights many of the same themes as the Petitioner’s Brief, it does shed light on a few issues previously unaddressed. Notably, the brief may be one of the first Supreme Court merits briefs to invoke the Court’s decision last week in Citizens United v. FEC, 558 U.S. __ (2010), No. 08-205. McDonald argues, by citing Justice Kennedy’s opinion in Citizens United, that where neither party defends a prior precedent, “stare decisis is diminished.” The brief also attacks Slaughterhouse on the ground that “decisions improperly limiting enjoyment of con­stitutional rights create no valid reliance interests.”  (Note: When looking to overrule prior cases, the Court often considers to what degree the country has relied on a decision.  The higher the reliance, the less likely a case will be overturned.)

A Google search is also at issue in the brief.  The City of Chicago had presented a computerized search of 19th Century newspapers, finding few articles declaring a publicly held belief that the Privileges and Immunities Clause covered the Bill of Rights. The City had argued that the absence of newspaper articles was conclusive regarding whether there existed an original public meaning of the Privileges and Immunities Clause that includes the right to bear arms.  Countering that argument, McDonald asserts that “[a] paper based on little more than a Google search should not be used against decades of detailed, disciplined scholarly work by some of the nation’s leading legal historians.”

One of the main counterpoints advanced by McDonald in reply was that federalism (and policy matters in general) cannot trump constitutional rights. McDonald maintains that the City’s “irrelevant political arguments” against applica­tion of the Second Amendment to the States failed “to accept that the decision to secure the right in our Constitution has already been made.”

McDonald is scheduled for argument on Tuesday, March 2, 2010, with a decision expected sometime before the end of the Term in late June.  

The Court Issues Two Opinions and Denies Review of Manuel Noriega’s Petition

In a flurry of action, the Supreme Court on Monday issued two opinions, granted certiorari in two cases, called for the views of the Solicitor General in two others, and denied a host of cert petitions, including that from former Panama dictator Manuel Noriega. 

The Court announced decisions in Hemi Group, LLC v. City of New York, No. 08-969 and Briscoe v. Virginia, No. 07-11191.  In Hemi, an unusual combination of Justices (Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg and Alito) held that since the City of New York could not establish lost tax revenue caused by a RICO violation, the City could not therefore state a valid RICO claim.  The opinion can be viewed here.

The Court in Briscoe issued a GVR order (i.e., granting the certiorari petition, vacating the lower court’s order, and remanding the case in light of an intervening development) after conducting oral argument.  The GVR order most likely represents what was an insufficient number of votes for overruling the Court’s controversial opinion last June in Melendez-Diaz v. Massachusetts, 557 U.S. __ (2009).  Justice Scalia lamented during oral arguments that the only reason certiorari had been granted in Briscoe was to reconsider the Melendez-Diaz ruling.  That ruling now appears safe.  The petitioner’s merits briefs (printed by Cockle) can be viewed here and here.  The Court’s opinion can be viewed here. 

 In Chase Bank USA v. McCoy, No. 09-329 and Providence Hospital v. Moses, No. 09-438, the Court called for the views of the Solicitor General.

 The Court also granted certiorari and consolidated for oral argument the petitions in Abbott v. United States, No. 09-479 and Gould v. United States, No. 09-7073.  Those cases involve the federal criminal statute making it a crime to use, carry or possess a firearm during a drug trafficking or violent crime. 

The Court declined review on several cases relisted from previous conferences. Among those petitions was the request for review filed by Manuel Noriega.  Noriega v. Pastrana, No. 09-35.  Notably, the denial of the Noriega petition drew a dissent from Justices Thomas and Scalia, arguing that the case presented issues of significant importance requiring the Court’s “guidance” in assisting the political branches to “discharge their responsibilities over detainee cases…” The dissent can be viewed here.

Citizens United Handed Down

Today, the Supreme Court conducted a special session to hand down the opinion in Citizens United v. Federal Election Commission, No. 08-205.  The Court—led by the conservative majority of Chief Justice Robert and Justices Scalia, Kennedy, Thomas, Alito—overturned two significant precedents holding that Congress may restrict corporate spending on political ads and commentary. 

Justice Kennedy, writing for the Court, held that “government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”  Referencing the popular movie Mr. Smith Goes To Washington, Kennedy further wrote that “Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime.” 

The Court’s opinion in Citizen United can be viewed here. 

Filing an Amicus Curiae Brief in the U.S. Supreme Court

According to Supreme Court Rule 37.1, the filing of “an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court” in determining the importance of the case. In fact, some studies have found that the filing of an amicus brief in support of a Petition can significantly increase the chances of acceptance “from 8.5 to 37.1 percent.” H.W. Perry, Jr., Deciding to Decide 137 (1991) (Table 5.4). The filing of several amicus briefs by diverse groups, the involvement of the Solicitor General or one or more states further increases the success rate.

While a good amicus brief can help the Petitioner on the Certiorari stage, a well-crafted amicus brief on the Merits stage may be of assistance to both parties by highlighting for the Court factual information or analytical approaches not provided by the parties. A persuasive amicus brief on the Merits may even “help shape the judicial decision.” See Gressman, E., et al., Supreme Court Practice, at 741 (9th ed.).

While it is easy to understand the important role an amicus brief can play in the Supreme Court, understanding the intricacies of Rule 37 (which governs the filing of amicus briefs) can present some difficulties. The following guide may help:

Time for filing – Certiorari stage: An amicus brief on the Certiorari stage in support of the Petitioner must be filed within 30 days after the case is placed on the docket. This is usually the same date that a brief in opposition is due and can easily be found on the Supreme Court docket. However, it is important to note that when the Respondent is granted an extension to file the brief in opposition, that extension does not apply to an amicus brief in support of Petitioner. It is rare that an amicus brief is filed in support of the Respondent at this stage, but if one is filed, it must be “submitted within the time allowed for filing a brief in opposition.” See Supreme Court Rule 37.2(a). Thus, an amicus brief supporting a Respondent does benefit from an extension received by the Respondent.

Time for filing – Merits stage: An amicus brief on the Merits stage must be filed within 7 days after the brief for the party supported is filed. For example, if the Respondent filed their amicus brief on October 7, 2009, the amicus brief in support of the Respondent would be due on October 14, 2009. If the amicus brief is supporting neither party, the brief is due no later than 7 days after the time allowed for filing the Petitioner’s brief, i.e., at the same time as an amicus in support of the Petitioner.

Consent: On both the Certiorari stage and the Merits stage, written consent of all parties should accompany amicus briefs sent to the Court. Written consent need not be a formal letter; an email from Counsel of Record or co-counsel granting consent is also acceptable. If an amicus group does not receive consent from both parties, they must file a motion for leave to file the brief indicating the party or parties who have withheld consent and the nature of the amicus’ interest in the case. See Rule 37.3(b). If a motion is required, it is not a separate document. It should appear directly after the title page and before the index. The Court does not require the United States Government, its agencies, a State, Commonwealth, Territory or Possession to have consent to file an amicus brief.

Amicus footnote: The first footnote on the first page of text of the amicus brief must indicate whether counsel for a party authored any part of the brief and whether counsel or a party made a monetary contribution intended to fund the preparation or submission of the amicus brief. On the Certiorari stage, there must also be a statement indicating that parties were notified 10 days prior to the filing of the brief of the amicus’ intention to file. See Rule 37.6 and a sample footnote here. In addition, this footnote will also contain a statement indicating that the parties have consented to the filing of this brief.