On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices’ extensive ruminations on the subject of “narrowing,” or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)
Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.
Several years ago, Chief Justice Roberts offered some thoughtful remarks on the substance of law review articles. Some have pointed to the Chief’s comments as evidence that law reviews are generally worthless. In the past, I’ve questioned that conclusion by noting that the justices regularly cite scholarly work. In this post, I approach this issue in a somewhat different way by showing that the Chief Justice himself regularly cites law review articles in his judicial opinions.
Over at the ABA’s website, Jones Day partner Hashim M. Mooppan has posted a short and extremely interesting piece entitled “A Possible Lifeline for Jurisdictionally Untimely Federal Appeals.” Here is the opening:
What should an appellate lawyer do when he or she has missed the deadline for filing a civil appeal in federal court but with reasonable justification for the error? Most people think that there is only one answer to that question—call the malpractice insurer—because courts have held that the deadline is jurisdictional and thus not subject to any equitable exceptions.
This article proposes that appellate courts and practitioners have overlooked another potential answer: A court lacking jurisdiction to decide the merits of an appeal nevertheless has the equitable discretion to dispose of the appeal by vacating the judgment below with instructions to reenter a fresh judgment and thereby restart the clock for filing a new timely appeal. This appellate remedy of equitable vacatur is a settled practice of the Supreme Court in the narrow context of its direct-appeal jurisdiction. And there is no reason in law or logic why the practice cannot be more broadly employed by the circuit courts of appeals.
On Monday, relative standing, or the idea that standing sometimes turns on who is the best plaintiff among the available options, made a brief but noteworthy appearance during oral argument at the Supreme Court.
Last week, the Court decided Yates v. United States, the red grouper case, by a 5-4 vote in favor of the defendant. I’ve blogged about Yates and its oddities before (here and here). In this post I’d like to focus on a connection between Yates and the scholarly work of the late Professor William Stuntz, particularly his work on checking the “pathological” politics of criminal justice. Though he is nowhere cited, the opinions in Yates call to mind Stuntz’s critique of overcriminalization and prosecutorial discretion as well as his suggested solutions, including expanded due process protections.
Here’s the start of my SCOTUSBlog post on last week’s oral argument in Henderson:
When the government has a dog of a case, someone has to draw the short straw and argue it. In Henderson v. United States, Assistant to the Solicitor General Ann O’Connell drew that straw. It seems clear that the Court will side with petitioner Tony Henderson – a felon seeking the right to sell or otherwise dispose of firearms that he owns but can no longer legally possess. In offering concession after concession and various fallback options, the government offered a case study in controlled implosions.