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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Rounding Up At SCOTUSBlog

April 30th, 2013

In the past two week, SCOTUSBlog has seemingly changed its policy towards assembling stories for its daily roundup of news stories.

On 4/19, the roundup noted, for what I think is the first time, that they are switching to a new system and would accept links to stories for the morning roundup:

We are switching to a new system of collecting links for the round-up. If you have a story or post related to the Supreme Court that you would like us to include in the round-up, please send a link to [email protected] so that we can consider it.  

On 4/23, the roundup noted:

We are switching to a new system of collecting links for the round-up. If you have a story or post that you would like to have included in the round-up, please send a link toroundup [at] scotusblog.com, and we will consider it.  

They added the same message to the roundups on 4/24, and on 4/29 wrote:

If you have a story or post that you think should be included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it. 

On 4/30, there was another change. Now SCOTUSBlog will *only* accept articles submitted.

We have changed our round-up format!  In an effort to simplify the process for our round-up team, going forward we will only include in the round-up news articles and posts that are submitted to us.  If you have (or know of) an article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it. 

This change is all the more interesting in light of  recent comments Tom Goldstein made to  New York Magazine about the “court press wars.”

What’s your relationship like with the Supreme Court press corps?
That has changed dramatically over the past twelve months. From Obamacare on­­—when we had 1 million people on the blog simultaneously on decision day­—there has been a radical shift, to the point where the mainstream press regards us as an extreme threat. Our external press citations are down. You can see it on Twitter as well. While we’ll regularly retweet pieces by other people, and we have the roundup every day of the rest of the press corps, the reverse isn’t true at all.

And we can track the IP use. Anyone in the press corps will tell you that the Supreme Court press room is now, except on decision day, completely empty, because everybody works from their bureaus just using our blog. So it’s a very odd situation in which they make unbelievable use of the blog but really don’t want to do anything that promotes it. That’s not true for cable television. Cable TV doesn’t give a shit. But the newspapers and the wires treat us as competitors.

Did you see that change coming? 
It’s weird, because I know these people. I kind of grew up with them. The Supreme Court press corps on some level made me as a Supreme Court advocate. I didn’t go to Harvard or Yale, I didn’t clerk in the Supreme Court, I didn’t work in the solicitor general’s office. My path to developing a personal profile that let me develop a Supreme Court practice initially—I really owe it to them.

I spoke with one member of the Supreme Court Press Corps, who told me these comments were off base, and the press routinely cites SCOTUSBlog. Out of curiosity, I did a search for “SCOTUSBlog” in the Westlaw Newspapers Database (there are probably other searches for “SCOTUS Blog” as two words, but I kept it consistent). There were a more than 360 hits total. Over 100 of them *since* June 28, 2012 (the day NFIB was decided). Roughly a quarter of the references to SCOTUSBlog have been in the last 8 months or so. Between 2004 and the beginning of the October 2008 term, there were 50 references. In OT 2008, there were 46 references.  In OT 2009, there were 46 references. In OT 2010 there were 30 references (a snoozer of a term). In OT 2011 there were 80 references. Since, June 28, 2012, the day NFIB was decided there have been over *100* references. In the past few months, SCOTUSBlog has quadrupled their references in newspapers.

Why the change, in the span of week, from requesting stories for the roundup, to only publishing stories submitted? Perhaps it may have something to do with SCOTUSBlog’s efforts to be seen as a journalistic entity.  Opening up the way it offers news coverage can only improve its reputation. This will also help to quell rumors (some of which I have confirmed) that certain sources have been “blacklisted,” for various reasons, from SCOTUSBlog’s roundup. Or, as I’ve heard, that reporters at Reuters are frustrated about not getting links from SCOTUSBlog. [Update: I’ve since learned that this rumor about Reuters is not accurate, so I withdraw this comment.] I welcome these improvements.

As Tom noted, the Senate Press Gallery recently gave Lyle credentials. This change, and others, could help pave the way to the Supreme Court offering credentials. I wish them the best of luck with that endeavor.

Update: And two weeks later, it looks like SCOTUSBlog has again modified its policies:

If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

They have abandoned their policy of *only* publish articles submitting and now will *consider* articles submitted. I’ve noticed that the size of the roundup has dwindled in the past few weeks–much fewer links. I doubt enough people bothered to send it articles. Now, back to normal operations, but at least open up to allowing people to submit.

SCOTUS Addresses Right To “Pursue A Common Calling” Under Privileges & Immunities Clause, Plus Citation to Corfield v. Coryell

April 29th, 2013

In McBurney v. Young, Justice Alito had occasion to talk about, and dismiss, claims that a Virginia law violates a right to pursue a common calling. The Court, under its Article IV Privileges and Immunities jurisprudence has not recognized a broad right to earn an honest living–a right the Slaughter-House Court improperly rejected under the 14th Amendment’s Privileges or Immunities Clause. There was a lengthy discussion of that right by the Court:

Hurlbert argues that Virginia’s citizens-only FOIA provision abridges his ability to earn a living in his chosen profession, namely, obtaining property records from state and local governments on behalf of clients. He is correct that the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling.” Hicklin v. Orbeck, 437 U. S. 518, 524 (1978); Supreme Court of N. H. v. Piper, 470 U. S. 274, 280 (1985) (“‘[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State’”).

But the Virginia FOIA does not abridge Hulbert’s ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause. Rather, the Court has struck laws down as violating the privilege of pursuing a common calling only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Hicklin, supra, (striking down as a violation of noncitizens’ privileges and immunities an “Alaska Hire” statute containing a resident hiring preference for all employment related to the development of the State’s oil and gas resources); Toomer v. Witsell, 334 U. S. 385, 395, 397 (1948) (striking down a South Carolina statute imposing a $2,500 license fee on out-of-state shrimping boats and only a $25 fee on in-state shrimping boats where petitioners alleged that the “purpose and effect of this statute . . . [was] not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for South Carolina residents,” and the “record cas[t] some doubt on” the State’s counterassertion that the statute’s “obvious purpose was to conserve its shrimp supply”); United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden, 465 U. S. 208 (1984) (New Jersey municipal ordinance requiring that at least 40% of employees of contractors and subcontractors working on city construction projects be city residents facially burdened out-ofstate citizens’ ability to pursue a common calling). In each case, the clear aim of the statute at issue was to advantage in-state workers and commercial interests at the expense of their out-of-state counterparts.

The challenged provision of the state FOIA does not violate the Privileges and Immunities Clause simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on in- formation contained in state records. While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen.

Speaking of Privileges and Immunities, there is a citation to Corfield v. Coryell. Hollah!

Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to “take, hold and dispose of property, either real or personal,” has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825);

At his tomb in Mt. Vernon, Bushrod Washington’s ears are burning.

And another cite to Corfield for the proposition that accessing FOIAd information is not a fundamental right:

Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to “take, hold and dispose of property, either real or personal,” has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825); see also

Alito Alleges Sotomayor Mistated Record in DIGd case, Sotomayor Disagrees

April 29th, 2013

The Court DIGd Boyer v. Louisiana. Interestingly, three justices–Alito, Scalia, and Thomas–concurred in the DIG. Four justices–Sotomayor, Ginsburg, Breyer, and Kagan—dissented from the DIG. Thus, it is pretty easy to count the five that voted to DIG. Those who concurred, plus the Chief and Kenendy.

In his concurral, Alito asserts that Justice Sotomayor misreads the record:

*The dissent also claims that “Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense.” Post,at 8; see post, at 5, n. 3. But the dissent’s only citation is to the State’s argument in the alternative that even if the legislature’s failure to appropriate funds for the defense caused the delay, that delay should not count against the prosecution for purposes of Louisiana’s statutory speedy trial requirement. The State in no way conceded that it caused the delay in this case. Indeed, the very next paragraph of the State’s brief argued that “the defendant sought to delay the inception of his trial via his funding motion.” App. 317a.

Here is the Sotomayor footnote in question:

Louisiana previously conceded that the delay was caused by a lack of funding. See Brief in Opposition to Defendant’s Writ Application in No. KW–07–00085 (La. App. 3 Cir.), App. 317a (“In this case, because the defendant was without properly funded counsel for so long, the State simply could not ethically or legally bring him to trial. The indigent defense representation and funding situation is beyond the ability of the State to control”); see also Brief for Louisiana in No. KA– 10–693 etc. (La. App. 3 Cir.), App. 198a (same).

Sotomayor responds to that point here:

JUSTICE ALITO’s concurrence largely adopts Louisiana’s arguments, and contends that the majority of the delay should be attributed to Boyer’s requests for continuances in the trial court, and not the funding crisis. See ante, at 3. It is a mistake to second-guess the state court’s findings on this point, particularly because Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense. See n. 3, supra. Contrary to the concurrence’s assertion, see ante, at 3–4, n. 1, this concession was not made arguendo. The most reasonable reading of the state court’s opinion is that it simply accepted Louisiana’s concession when it found that the “majority of the seven-year delay was caused by the ‘lack of funding.’” 56 So. 3d, at 1142. There is no reason this Court should comb through the record to allow Louisiana to turn its back on this prior position, and risk substituting this Court’s judgment for that of a state court on a question that is closely intertwined with state procedural rules. These matters of state law are better suited for the Louisiana court to address in the first instance on remand.

I haven’t read the record at all, but I think the two Justices seem to be talking past each other. Alito says the state conceded nothing, and only took this position assuming arguendo. Sotomayor says that the Court should defer to the lower court’s reading of the state’s position, which found that the issue was conceded. In other words, Sotomayor would not allow the state to change its prior position.

I don’t know who is right here.

In any event, Sotomayor has some rather expansive language in her opinion, that addresses some larger problem:

The Court’s failure to resolve this case is especially regrettable, because it does not seem to be an isolated one. Rather, Boyer’s case appears to be illustrative of larger, systemic problems in Louisiana.

The Louisiana Supreme Court has suggested on multiple occasions that the State’s failure to provide funding for indigent defense contributes to extended pretrial detentions. See State v. Citizen, 2004–1841, pp. 14–17 (La. 4/1/05), 898 So. 2d 325, 336–338; State v. Wigley, 624 So. 2d 425, 429 (La. 1993); State v. Peart, 621 So. 2d 780, 791 (La. 1993). There is also empirical evidence supporting that assessment. In New Orleans Parish, for example, a recent study found that more than 22 percent of pending criminal cases were more than one year old. Metropolitan Crime Commission, 2011 Orleans Parish Judicial Accountability Report 1 (July 2012). Another study found that the average time between felony arrest and trial in Calcasieu Parish, the jurisdiction where Boyer was tried, was 501 days in the years before Boyer’s arrest. M. Kurth & D. Burckel, Defending the Indigent in Southwest Louisiana 27 (2003). More broadly, the public defender system seems to be significantly understaffed. See E. Lewis & D. Goyette, Report on the Evaluation of the Office of the Orleans Public Defenders 28–29 (July 2012) (noting that in New Orleans, public defenders handle approximately 277 felonies per year, which is nearly twice the number recommended by ABA standards (citing ABA Formal Opinion 06–441 (2006))); National Legal Aid & Defender Association, In Defense of Public Access to Justice, An Assessment of Trial-Level Indigent Defense Services in Louisiana 40 Years After Gideon 35, and n. 119 (2004) (estimating that public defenders in Avoyelles Parish handle approximately 792 felony cases per year, or 528 percent of the ABA caseload standard). Against this backdrop, the Court’s silence in this case is particularly unfortunate. Conditions of this kind cannot persist without endangering constitutional rights.

Justice Thomas Continues To Deny Existence of Dormant Commerce Clause

April 29th, 2013

No sleeper in McBurney v. Young from CT’s concurring opinion:

I join the Court’s opinion. Though the Court has properly applied our dormant Commerce Clause precedents, I continue to adhere to my view that “[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.” Hillside Dairy Inc. v. Lyons, 539 U. S. 59, 68 (2003) (opinion concurring in part and dissenting in part) (citation and internal quotation marks omitted).

Why was Tahoe-Sierra Brought In Federal Court?

April 29th, 2013

In teaching Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, something struck me about the fact that the case was appealed from a (bizarre) 9th Circuit opinion. Why was this case in federal court? Usually, inverse condemnation suits–which is what this suit was– must be brought in state court under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. The Tahoe-Sierra opinion doesn’t mention Williamson, or even acknowledge why it is in federal court.

I asked Tim Sandefur, because Pacific Legal Foundation was involved in a lot of this litigation. Tim’s colleague Jim Burling, who was around with this litigation, pointed me to this colloquy in Suitum v. Tahoe Regional Planning Agency, which was argued in 1997 (5 years before the big Tahoe-Sierra). The case isn’t directly no point, but it was pretty close.

Right off the bat, Kennedy and Scalia nail Pacific Legal Foundation attorney R.S. Radford about why they are in federal court, and whether Williamson applies:

Chief Justice Rehnquist: We’ll hear argument now in Number 96-243, Bernadine Suitum v. Tahoe Regional Planning Agency.

Mr. Radford.

Mr. Radford: Mr. Chief Justice, and may it please the Court:

This case is about an ordinary property owner who’s been denied all beneficial use of her land and then, in addition, has been denied access to the courts to seek relief for that categorical taking of her property.

[Justice Kennedy]: Well, at the outset, I… and maybe you can answer this question very easily.

I don’t know why you didn’t bring an inverse suit here, number 1, as a matter of choice.

I don’t know why you’re not required to do so under Williamson as a matter of law, unless it’s peculiar to TRPA.

There’s no inverse action available to you against the bi-State agency?

Mr. Radford: Well, the Tahoe Regional Planning Agency, of course, is a bi-State body operating under an act of Congress, and the type of proceeding that was initiated here in district court would appear to be specifically authorized under the TRPA compact.

[Justice Kennedy]: Can you bring an inverse suit against the Tahoe Regional Planning Agency?

Mr. Radford: Well, I’m afraid that I can’t answer that question, Justice Kennedy.

[Justice Kennedy]: But don’t you have to answer it under Williamson?

Williamson says that that’s what you must do.

Maybe… is it because the agency has no treasury, I guess, to pay the judgment, or–

Mr. Radford: Does your… is the thrust of your question going to the second prong of Williamson County regarding the need to pursue State remedies?

[Justice Kennedy]: –Yes, and these aren’t State remedies because it’s a bi-State agency, but it still seems to me that to put the case into focus you should go to inverse condemnation first and then 1983 if there’s no inverse available.

Mr. Radford: Well, the position of the Tahoe Regional Planning Agency is that they do not have the power of eminent domain, they do not have provisions for paying just compensation, and this entered into the decision that was made at the initial level of this litigation to proceed by way of Federal–

[Justice Kennedy]: : Thank you.

And so we might say that generally we do not know that there are routinely inverse suits filed against the agency and defendant against the agency as they would be against, say, the State of California or the State of Nevada?

Mr. Radford: –I’m not aware of such a practice, certainly not routinely, Justice Kennedy.

Unknown Speaker: Thank you.

[Justice Scalia]: Does the charter of the agency give them eminent domain power?

Mr. Radford: No, it does not, Justice Scalia.

So what’s the answer? It has something to do with the nature of the Tahoe Regional Planning Authority, and the fact that they lack a treasury, lack the power of eminent domain, and thus no inverse condemnation suit would lie under state law. Thus Williamson is inapposite. Neither SCOTUS opinion addressed this point, so this is the best we got.

And here are some pictures of Lake Tahoe.

Lake Tahoe is a large freshwater lake on the border of Nevada and California.


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