Thinking Like a Lawyer - Above the Law

Supreme Court Preview: Waiting For Garland

Elie and Joe chat with SCOTUSBlog contributor and Supreme Court litigator Tejinder Singh about the upcoming Supreme Court Term. The docket lacks the blockbuster issues of past years, but there are still some critical cases pending before the 8-member Court.

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Above the Law Thinking Like a Lawyer

Supreme Court Preview: Waiting For Garland

10/10/2016

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. With me as always, or actually not always, but as frequently as possible, is Elie Mystal, also of Above the Law. How are you?

Elie Mystal: I have a hole in my shoe.

Joe Patrice: Well, that doesn’t sound good.

Elie Mystal: I wear the same pair of shoes until they basically fall off and then I go to the store and just buy the same pair over again.

Joe Patrice: Yeah. I mean, I do something similar. I like to keep two pairs around at any given time so that I don’t have to worry.

Elie Mystal: I only keep one and now I will have to worry.

Joe Patrice: There is a DSW like down the street.

Elie Mystal: That’s not where I get this pair of shoes.

Joe Patrice: Oh, it’s a good place. Not that they have endorsed us or anything, but I mean, they seem like a reasonably priced place to get shoes. If they want to endorse us, please let us know, DSW.

Elie Mystal: That’s a good point. I am going to try to hold out till Christmas.

Joe Patrice: Okay. So you have a hole in your shoe, but that I am hoping is not what has actually got you upset today?

Elie Mystal: No, what’s got me upset is a whole different holiday. By the time you guys are listening to this we are going to be really close to my least favorite holiday on the calendar and that is the abominable Halloween. Halloween is a holiday, now that I have children I realize, is a holiday where I am supposed to send my children out into the street to beg for candy, which is annoying.

Before I had children it was a holiday where women were supposed to dress up really, really sluttly, so I could not have sex with them because I was married. And before it was that holiday, it was the holiday where I was a child who was sent out into the street to beg for candy and got beat up by the neighborhood kids, because my life is one of pain and misery.

Granted, all right, in fairness granted, the one time I did get jumped, I was nine years old and dressed up like Teddy Kennedy for Halloween, and in retrospect I can see what the problem was there, but still we are talking about a holiday where kids regularly get jumped for showing political activism at an early age.

Joe Patrice: Wow. Yeah. There is a lot to unpack there and I really feel as though I don’t have the psychological credentials to do it.

No, it’s a perfectly fine little holiday. There are bigger problems with it that I have that I can get over, but I think that there is a much more prevalent and inappropriate cultural stereotyping and appropriation issue, and it’s interesting, we will be talking a little bit —

Elie Mystal: Appropriation of Wiccans?

Joe Patrice: What? No. No, there is lots of — for instance, when we went to the ILTA Conference this year you wrote a good article about the prevalence that White people have for dressing up as stereotypes of various ethnicities, and I see a lot of that on Halloween too, which is problematic, but as a general matter if you dress up as a ghost and get yourself some candy, I don’t really mind.

Elie Mystal: Well, what do you think about the fact that Halloween is also the holiday that we choose to stigmatize our brothers and sisters who have committed horrible sex crimes? Halloween is a terrible day for people who have served their time for their sex crime. It’s a horrible day because they have to have signs saying, no candy here, and it’s all like a big thing.

Joe Patrice: Yeah. Okay, I am going to go ahead and say that that’s a bigger, bigger issue than Halloween, but you can use this as a point around which to rally.

No, go out and get candy, enjoy life, that’s probably something that other people can do if they aren’t busy dressing up as US Senators for Halloween, which that also is a whole other can of therapist worms.

Elie Mystal: Don’t come to my house, I am literally going as Oscar the Grouch this year.

Joe Patrice: Oh, that’s good, that’s good. I like that. That’s a good look.

So with that, why don’t we talk about the big legal issues going on today, which would be the beginning of the Supreme Court’s next term?

Elie Mystal: Oh, I thought you were going to say various Trump scandals is the big —

Joe Patrice: Yeah, I guess that’s true, there are a lot of those, but this is more going to be about the Supreme Court I thought.

Elie Mystal: That’s cool.

Joe Patrice: Yeah. So we actually have a guest returning from last year’s Supreme Court Preview. He is kind of carved out of space as our resident Supreme Court Expert. We have Tejinder Singh, who is a regular contributor at SCOTUSBlog, partner at Goldstein & Russell, Supreme Court litigator. Welcome back to the show.

Tejinder Singh: Hi guys. Thanks for having me.

Elie Mystal: Tejinder, do you think you are going to be able to stay awake during the term this year?

(00:04:52)

Tejinder Singh: Oh. Yeah, I don’t know. So my toughest thing is like, unlike you, I love Halloween, but I have got to argue a case the next day, and so I am — I am so bummed. I think I am going to miss it this year. But yeah, I think I will be able to stay up for it.

Joe Patrice: Well, you have the advantage of actually doing things during the term. For those of us who are just watching, it’s a little bit more of a snoozer, which I think brings us to the first question, which is a little outside of the specific docket, but do you think that this docket was influenced in any way by the political realities that we have got eight Supreme Court justices and very little sign, but that’s going to change in the near future?

Tejinder Singh: Yeah, 1000%. I mean, I think that there is very good reason to believe that the justices are passing on issues that they think will be extremely contentious. And the best example of this is there is actually a case on the docket called the Trinity Lutheran, so this is a religious freedom type case about whether states can deny funding to churches for programs that are kind of similar to what secular folks are doing and getting money for.

And it was supposed to be on the calendar for last term. The court kicked it over to this term after Justice Scalia died, and normally you would have seen it scheduled for argument in October or November, but it hasn’t showed up yet. And so everyone thinks that basically what’s happening is the court is just not going to do anything with it until such time as they have a nice justice who can help them decide it.

Elie Mystal: Or help them say, that’s a nice way of putting it. I think the issue is that the eight of them already have pretty much already made up their minds before even hearing argument?

Tejinder Singh: My guess is that something like that’s correct, that when they voted to grant cert, some opinions about the merits probably were expressed during that conference, and so they were really worried that the case will go down 4-4, and I think the court is really reticent to reach those results.

But on the flip side of that, there was an interesting order just issued today, October 3, where the court declined to rehear the United States v. Texas Immigration case, the case on which it deadlocked 4-4. So they are not holding back all the issues, just some of them, and it’s very hard actually to figure out what’s going on.

Elie Mystal: Can I ask this question, because it’s a point that I have been making kind of out on the stump, that in a way from a certain kind of conservative position of legal scholarship one of the things that conservatives have been asking for, for generations is for the court to do less, and in many ways they are kind of getting what they want this term by having a hobbled court on the kind of can’t function and perhaps the “activist ways” that it has over the past 10, 20 years?

Tejinder Singh: Yeah. I kind of disagree with the premise. I think that conservatives tend to decry judicial activism when it’s sort of conservative policy positions are on the chopping block at the court and are being deemed unconstitutional. On the flip side, you don’t really see a lot of conservative crying about judicial activism when affirmative action programs are being struck down. So I am not 100% sure.

But to take your question like on its own terms, I think that certainly the court is doing less and I think that the upshot of that actually is that the lower courts are so much more important now. The Ninth Circuit and the Sixth Circuit in certain areas are just so happy because the majorities to reverse them kind of no longer exist. And so those rulings obviously will stand if they are not successfully challenged in the Supreme Court, and I think that that is a function of the court being able to do less.

Joe Patrice: So one case that stood out to us when we were first going through the term that we thought was kind of interesting was this Pena-Rodriguez v. Colorado case, which is this case about the sanctity of juries, and what kind of struck us —

Elie Mystal: Or it’s a case about racism.

Joe Patrice: Yeah, or a case about racism, depending on how one decides to parse the line. You have a jury where allegedly, apparently, one of the jurors threw out a bunch of racist comments and influenced the way theoretically that the jury made its decision. We also have a history in this country of not probing into what goes on inside the jury room for a variety of policy reasons, to protect the finality of cases and so on and so forth.

But that’s the matter now that we are going to get some decision on, and I thought that was an interesting case, because it does seem very contentious, very interesting, but it’s also something where the lines may not be drawn necessarily along the conservative liberal lines like usual?

Tejinder Singh: Yeah, I think that’s correct. It is an interesting case. In this case you have got a juror who I think said something to the effect of, I think he committed this rape because he is a Mexican and Mexicans always get what they want. It’s kind of like the Taco trucks on every corner comment that made the round.

And so, yeah, so you have that sort of sentiment expressed in the jury room, and it’s true, normally we don’t really allow probing into what happened in the jury to impeach a verdict. This is kind of a special kind of impeachment. It’s about whether there have been sort of Sixth Amendment violations of the right to an impartial jury in the first instance. So it may present kind of a special case.

And yeah, I don’t know that it will necessarily divide along the sort of classic conservative liberal lines, I think you could see really sort of forceful arguments on both sides of this case from either perspective, for sure.

(00:10:15)

Elie Mystal: I think Ginsburg in the past has been very reluctant to pierce the veil of jury deliberations. I wouldn’t imagine she would go back on that. By the same token, like you say, I think that some of the — a Kennedy could look at this in a very different way. So like you, I truly don’t know how it’s going to come out.

Tejinder Singh: Yeah. And there have been like a bunch of amicus briefs filed in that case kind of telling you where folks come out. I do think that on balance the sort of liberal side of the world, and especially folks who are principally interested in racial justice have really come in very strongly on the side of the defendant.

On the other hand, you have got a bunch of states and district attorneys in the United States have filed on Colorado’s side, and I think that that tells you a little something about how folks will see this.

But I agree with you, there’s definitely room for liberal justices to say, oh, the sanctity of the jury may trump the fact that some American jurors are likely to be racist, because honestly, that’s probably not — even though comments like that are obviously awful, I don’t think it shocks anybody that there are racists in America, and that some of them end up on juries. And so if that winds up being the takeaway, it would be I think pretty problematic for how criminal justice in this country functions.

Elie Mystal: I think it’s a great point. And look, to me the most interesting question about this case is one that isn’t presented to the court, the juror in question who said these racist comments identifies as a former law enforcement officer, and to me, there is a whole different issue about having law enforcement, former law enforcement in the jury room, because it seems to me like those people are in a particular position to influence the jury one way or another. I think that’s kind of bad defense attorney work to have that guy still on the jury in the first place, but that is not in front of the court.

Tejinder Singh: Yeah, I heard a funny story about this once where the US attorney for the District of Maryland once found his way onto a criminal jury, because the pro se defendant just like never asked the question during voir dire, like are you a federal prosecutor, and so there he was doing jury duty going, what the hell is going on?

Elie Mystal: You mentioned in your previous answer, amicus briefs, and that’s a good segue to what I think is one of the more kind of interesting talk around the Thanksgiving table cases this term, and that is Apple v. Samsung, which has just a murderers’ row of amicus briefs filed, right?

For listeners who aren’t familiar with the case, this is a case about design patents. It’s about whether or not Apple can patent the design, the sleekness, the rounded corners of the iPhone and whether or not Samsung can copy that. The court said that Samsung copied everything and that they owed Apple their firstborn. Samsung was saying like, no, we only owe Apple like the redheaded stepchild, the violations that we had for copying the look of the iPhone shouldn’t be upheld.

On Samsung’s side are Facebook and Google, and what we think of as our tech giants, who obviously have a vested interest in, I guess, being able to steal and copy from each other.

On the opposing side, on Apple’s side it’s like Christian Dior, and what’s his face, we don’t have the fashionistas in here, but like other fashion people who obviously clearly feel that the fashion of the phone is kind of protectable and very valuable.

Joe Patrice: You have a very different Thanksgiving conversation than most people.

Elie Mystal: Fair. What do you think about that case, Tejinder?

Tejinder Singh: Yeah. So I will disclose that my firm is among the counsel to Samsung in that case, so we have some vested interest in how it comes out.

Yeah, it’s an interesting patent litigation, as people who have been following this issue, or maybe even those who haven’t that closely may know, this is sprawling patent litigation that’s been going on for ages between Samsung and Apple about smartphones. And the specific issue in this case is whether when you have a design patent, the damages should be limited to the damages that are attributable to the specific component and the design patent, or whether you get damages relating to like the entire phone, for example.

It’s an issue on which you could really imagine a lot of disagreement within the industry, because it just depends on if what you are mostly doing is designing little components that go into bigger things, or whether you are making the bigger things. And if you make the bigger things you are going to be really worried that if you are ever hit with an infringement judgment, you are going to have really large verdicts based on your entire product, and whereas, if you are doing a lot of designing of smaller components, you are going to be really interested in potentially getting those verdicts.

(00:15:07)

And so I think that accounts for a lot of where the amici line up, but there’s so much money at stake in some of these industry areas that it’s not surprising that everyone has come out of the woodwork to file briefs on this.

Elie Mystal: What do you talk about over Thanksgiving?

Joe Patrice: Well, what I will talk about over Thanksgiving — well, probably won’t, but I will continue this charade that I discuss these things at Thanksgiving. Let’s transition — actually this may come up at Thanksgiving I guess, but not for the same reasons, keeping in the intellectual property world, we just got another case added, which is the whole question of whether or not you can trademark offensive stuff. The case that’s actually being taken is not exactly the Washington Redskins, but I think that’s the elephant in the room that the — and this is how it might come up on Thanksgiving, because I watch football, see how I did it.

Elie Mystal: I am with you, totally with you.

Joe Patrice: Yeah. So whether you can trademark words like Redskins, which has been found by the Patent Trademark Office to be offensive and therefore not trademarkable, but on the other hand, you have in this case Asian-American band that named themselves an Asian-American slur in kind of an act of reappropriation. Now, do they get protection, even though the word itself may be derogatory, but it’s a real question of like the kind of more modern social science discussion of the power of reclaiming things and reappropriation.

Elie Mystal: Can you be ironical in your trademarks?

Joe Patrice: Irony. So do you have any — I don’t know if your firm has any involvement in that particularly, but that’s kind of the new one that I find really interesting and another question where the lines may not be conservative liberal like you would expect.

Tejinder Singh: Yeah, it is an interesting question. So the trademark statute says you cannot trademark something that consists of matter that may disparage persons living or dead, institutions, beliefs, or national symbol or something like that. And the question is whether that restriction on trademark rights violates the First Amendment.

I think it’s an interesting question, right, because as you know, there’s a lot of context in which people want to trademark potentially disparaging terms. I do think that there’s sort of an interesting policy debate here, which is like saying you can’t trademark something is not the same as saying you can’t sell it, for example. And it’s not the same as saying you can’t call your band that, right? So it’s not exactly censorship.

So the First Amendment questions are kind of one step removed from what we normally think about when the government restricts speech. And so there’s this interesting question, it might relate a little bit to you, the government speech cases. So there was this case last term about, could you get a license plate with a Confederate flag on it, if Texas didn’t want to issue that to you, and the court said no, because it’s government speech.

Now, trademarks are not government speech, they are private speech, but they are private speech that get the sort of special level of additional government protection, and so there may be questions about sort of whether the government has to extend that to all kinds of speech and how much sort of play there is in the joints there.

I do think it’s super interesting, and I think it’s going to be — and I think, as you know, the elephant in the room case is the one relating to the Washington Redskins. Their petition, they filed one that said, if you grant in this case about the band, you should also grant our case, even though we haven’t even argued it in the Fourth Circuit yet. And the court denied that petition, sent it back down. So obviously the decision in this case will have a huge bearing.

Elie Mystal: The court said slow your role, slow your role.

Joe Patrice: Yeah.

Elie Mystal: Can we talk about Takings now?

Joe Patrice: No. But I think we could — yeah, for whatever reason every time we talk about the Supreme Court, Elie decides to go off on Takings, over and over and over again, and I am like, it’s really not that interesting.

Elie Mystal: There is a hugely interesting Supreme Court case on Takings, Murr v. Wisconsin, right?

Joe Patrice: Yeah, it’s not hugely interesting. It’s a Takings case, like come on, man.

Elie Mystal: It’s the foundation of our zoning regulations in this country.

Joe Patrice: Sure. Okay. See, I was going to go more about like gerrymandering and voting rights, but if you want to talk about whether or not somebody can have a 1 acre plot, by all means.

Elie Mystal: No, let’s talk about voting, that’s so interesting right now.

Joe Patrice: I don’t know if you know, there’s an election, like it’s a thing.

Elie Mystal: People want to vote, you should go vote, go ahead, talk.

Joe Patrice: Yeah, so kind of in contrast to what we were talking about, about how a lot of apolitical or at least not traditionally political lines cases keep coming up in this term, but there are two hyper-political cases that are here probably because of the saliency with an election coming up, but we have two cases, different issues, but related issues; a Virginia case and a North Carolina case about how districts get drawn.

Elie Mystal: How gerrymandering works, right?

Joe Patrice: Yeah.

(00:19:54)

Elie Mystal: And I think one of the more interesting things here is that you can understand the kind of the social policy of drawing a district so that there are enough kind of African-Americans or whatever minority you want to think about, drawing them together so that they get to pick their own representative. Okay.

But when you do that what happens is that all the African-Americans get taken out of other districts and it makes the districts devoid of African-Americans, sometimes particularly odd, and particularly you get kind of extremophile districts.

Is there still kind of in the modern era a reason why you would kind of go out of your way to draw a district that kind of excludes one street full of Black people to throw those Black people into the majority Black district, but also deny them their rights of kind of voting with their neighbors across the street?

Tejinder Singh: Yeah, I do think those are some of the interesting issues in the redistricting cases. I also think that one of the really interesting background rules in redistricting is that racial gerrymandering is not allowed, but partisan gerrymandering is just fine. And obviously they are addressed to different considerations, but I think as we have seen throughout the course of the last several election cycles, there’s a good argument to be made that partisan gerrymandering is no less sort of obnoxious to the exercise of voting rights, the sort of underlying principles that sort of animated the Voting Rights Act in the first place.

And so it’s really interesting how these cases get litigated, because so much of the fight often centers on what the motives were and what the sort of the intentions behind the districts drawing were, and less so behind the effects of how the districts were drawn, and then you get these really sort of convoluted legal discussions about, well, how do you prove that, which of the standards and so on, and that’s a lot of what you have in the cases that are before the court this term.

Elie Mystal: Where is the court on this, do you think, because as you point out, like there are — we are kind of evolving our standards on what — how this should be done and how this should be acceptable, if at all, and I don’t feel like there is a clear understanding from either side of the kind of ideological divide about kind of how they actually want things to go.

It feels so often that if the gerrymandering worked out for the kind of liberal idea, then the liberals are going to go for it, and if the gerrymandering kind of worked out for the Republican candidates, the Republicans are going to go for it, and I don’t see a lot of ideological kind of consistency from either side on this. Am I missing something? Do you think there’s more of a plan here from the justices or are they just really doing it kind of based on case by case?

Tejinder Singh: I think a lot of it is kind of case by case. I think what you see is that the justices who are on the more conservative side of the court I think are often unfairly kind of demeaned as racists, but those justices I think just have sort of a narrower conception of what constitutes racism than I think sort of like a lot of kind of modern liberals and many social scientists. They have the idea that if something is racist that’s because it was like meant to be racist.

But when they see that I think you see them react very strongly. I think the idea of intentional racial discrimination still strikes a very powerful chord with all the justices on the court, including the ones who are often I think criticized for being a little blinkered about this. And so that’s why I think the law has developed the way it has.

So a lot of these cases I think do tend to turn on their particular facts, like how strong — just how strong was the evidence of some improper racial motive. And I think you are actually seeing a lot of that reflected around the court’s docket generally. So you have got these voting rights cases, Pena-Rodriguez that we talked about; there is a death penalty case called Buck, which is up, and that a massive huge racial component to it. And I think that all of those really kind of strike nerves with all the justices.

Joe Patrice: Yeah, Buck was the one that first struck me when I started reading it to prep up for the term. I was just like, wait, wait, his own expert said what?

Tejinder Singh: Yeah, I mean it’s an utterly bizarre fact pattern.

Elie Mystal: No, I mean, like now that Roberts has declared racism over in the South I think it is interesting to see what level of racism he still believes exist in this country.

Tejinder, I want to get you out of here kind of, now that we have got into voting, and got into a little bit more politics, I want to get you out of here on this. Hillary wins the Presidency, the Republicans control the Senate, who is the next Supreme Court Justice?

Tejinder Singh: Merrick Garland.

Joe Patrice: That’s who I think too.

Elie Mystal: You still think they will do it lame duck?

Tejinder Singh: Yeah.

Elie Mystal: Here’s the question, does the Senate confirm lame duck Obama’s nominee or do they, after reclaiming the Senate do they wait for Hillary’s nominee, because their whole argument so far, their whole argument has been they want to wait for the new President.

(00:25:05)

Tejinder Singh: Yeah, let’s not pretend they believe that. I think what happens is under no circumstance are they going to get a better deal than Merrick Garland. So even if they are keeping the Senate, so they could take Hillary’s nominee, their best case scenario is like much younger version of Merrick Garland, where at least there is a risk, but that’s what they get, someone kind of centrist, but still like a 40-year-old or something.

Whereas, if they confirm now they can have a 63-year-old centrist justice in a year where they lost the presidential election and they effectively pay no political price for being obstinate beforehand.

I think it is the best case scenario for them if Hillary wins the White House and so I think they will do it. And as for timing, they can manage their risk by confirming him in the lame duck rather than waiting and seeing if she nominates someone else.

Joe Patrice: And one point that I have been bringing up, because I went to an event where Neal Katyal was talking and he made the point that I think resonated with me, that even if Hillary were to win, she would probably re-put up Merrick Garland anyway, because if she were to win and a Republican Senate, she would be facing a million and one confirmation fights for everything under the sun, why pick a fight on this one where there’s some sense that they might go for this in a relatively rubberstamp way once they get the chance.

Tejinder Singh: Yeah, I think that may be true. I also think that if there was any semblance of comity and reason, this confirmation would have happened ages ago. And also, I think that for Hillary, Hillary is walking an interesting line, because you haven’t seen her openly embrace or criticize Garland, which has always made me think that he wouldn’t be her first pick.

Because if she really started blasting him and saying she would nominate someone else, I think they would be much more likely to confirm him right away, and I am not actually sure that’s what she wants to happen, because even though she will have other confirmation fights, I think like Supreme Court justices are a major legacy line item for Presidents. So I think this one may be — she may view this one as more important. But yeah, I mean there are lots of reasons why she might go with him.

Elie Mystal: You guys are both more hopeful than I am. I just feel like, look, none of the Republicans in the Senate have sat down this gauntlet, and as you said quite correctly, if they pay no political price for it, what’s to make them confirm anybody ever again. We have just seen, there is no constitutional requirement that the Senate actually has to do their job, why would they ever confirm another person, like they have taken the top off of this thing.

Tejinder Singh: I think if they were to say we are not ever going to confirm somebody that would be a different kettle of fish entirely than if they were to say, okay, we give up. I just think that —

Elie Mystal: I would like to see the voters make them prove that. Well, everything is terrible and there is a hole in my shoe.

Joe Patrice: Wow, and Halloween is coming up, so you have got everything, everything is just bad for you.

Elie Mystal: I am just trying to make it to November 9, man.

Joe Patrice: Well, thanks so much Tejinder for joining us again. And good luck, I guess you are arguing something on November 1 it sounds like.

Tejinder Singh: Yeah.

Elie Mystal: Good luck with that.

Tejinder Singh: Yeah, I have got State Farm v. Rigsby.

Joe Patrice: Oh, okay.

Elie Mystal: Oh, okay.

Joe Patrice: Nice, nice. So thanks everybody also for listening today. If you have not already given us a review on iTunes or whatever podcast form you utilize, do that, because it helps us move up in their algorithms. You can read our work at Above the Law, which is where we are everyday. You can also download the Legal Talk Network App, if you so desire, where you could listen to this and all the other Legal Talk Network shows all in one convenient place. And you could follow us on Twitter. I am @JosephPatrice; he is at @ElieNYC.

And with that, now you have every possible way I think of getting a hold of us. Well, I mean, I didn’t give your Chatroulette handle, but anyway, that was a blast from the past. Kids, there used to be an Internet thing called Chatroulette.

Anyway, so with that, thanks for listening and we will talk to you in the future on another episode of Thinking like a Lawyer.

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