By Zach Schonfeld and Ella Lee | Wednesday, May 21 |
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By Zach Schonfeld and Ella Lee Wednesday, May 21 |
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Jackson most vocal member on Supreme Court bench: analysis |
Justice Ketanji Brown Jackson may be the Supreme Court's most junior member, but on the bench, she's the most vocal. Jackson, who was nominated by former President Biden in 2022, has far outpaced her colleagues on speaking time during oral arguments this term. She has said 75,535 words during oral arguments this term, according to The Gavel's review of Supreme Court transcripts, more than 50 percent higher than any of her colleagues. Jackson appeared to take note of the trend earlier this month as she accepted an award, reflecting on her similarities with former President Truman, whom the award was named after. "Perhaps it is my general outspokenness on and sometimes off the bench. I am also told that some people think I am courageous for the ways in which I engage with litigants and my colleagues in the courtroom," Jackson told the crowd gathered in Kansas City, Mo. Jackson has set herself apart in other ways recently too, including notably being the lone liberal justice to publicly dissent over an order this week allowing the Trump administration to strip Venezuelans of protections against deportation. The justice's noticeable loquaciousness comes as the style of oral arguments at the high court has significantly changed since the pandemic. After the normal free-for-all questioning round, each justice now gets uninterrupted time to ask questions to the attorneys. Cases almost always extend past the official one-hour allotment. And some arguments become marathon sessions, like last month, when the court went for two-and-a-half hours as it considered requiring Montgomery County, Md., to provide parents an opt-out option from LGBTQ-themed books in elementary schools. Three justices — Samuel Alito, Amy Coney Barrett and Jackson — were more vocal in those arguments than any other this term, helping that case become the one to draw the most chatter among the justices. |
Justices ranked by total words spoken this term: |
- Ketanji Brown Jackson: 75,535
- Sonia Sotomayor: 49,448
- Elena Kagan: 48,188
- Neil Gorsuch: 43,035
- Brett Kavanaugh: 33,221
- Samuel Alito: 32,446
- Amy Coney Barrett: 30,432
- John Roberts: 20,493
- Clarence Thomas: 10,904
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Justices sometimes decline to speak during cases. For example, Barrett didn't speak during eight arguments she participated in this term, more than any of her colleagues. Silence can sometimes indicate agreement. In a January argument involving a former Halliburton Energy Services employee's wrongful termination case, neither Barrett, Alito nor Justice Brett Kavanaugh asked a single question. It marked the only case this term in which three justices remained silent. The unanimous opinion landed rapidly, less than two months after the argument. Alito himself authored the decision that allowed the employee's case to move forward. (For the data nerds out there, we've got you covered: Click here to download the full dataset.) |
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Meet the boutique law firm punching up at Trump |
Gupta Wessler has just 11 lawyers and four partners, but that hasn't stopped the boutique law firm from taking on the Trump administration. The firm is spearheading two prominent challenges to President Trump's sweeping assertion of executive power. It represents both Gwynne Wilcox, a Democratic member of the National Labor Relations Board (NLRB) fired by Trump, and a worker union fighting back against the dismantling of the Consumer Financial Protection Bureau (CFPB). Despite its size, the firm is punching up. "We like representing the underdog," founder Deepak Gupta said in an interview with The Gavel. "That's kind of our specialty." On Thursday, the firm's two major cases against the Trump administration were argued before the U.S. Court of Appeals for the D.C. Circuit — just hours apart. Gupta said the unusual split-screen was "incredibly intense." In the morning, he urged a three-judge panel to deem Trump's firing of Wilcox unlawful based on both precedent and "settled and unquestioned historical practice between the branches." Later that day, Gupta Wessler principal Jennifer Bennett argued that the CFPB would have been "wiped out" without court intervention and urged the panel to block the agency's dismantling. Gupta said that taking up the two cases was a "natural extension" of the firm's work. Founded in 2012, Gupta Wessler's focus in "normal times" was representing consumers and workers, the founder said. Now, the firm is representing government watchdogs meant to protect those classes against action taken by the Trump administration. However, the CFPB fight is personal, Gupta said. He helped set the agency up, working under Sen. Elizabeth Warren (D-Mass.) before she was a senator to launch its amicus program, defend its regulations and assist on Supreme Court cases. "We couldn't just watch the sidelines as they tried to dismantle it," he said. Gupta said Wilcox asked Gupta Wessler to represent her. Despite being a "test case of the administration's own making" aimed at expanding control over independent agencies, Gupta said a challenge to the firing was necessary because otherwise the administration "will have succeeded." "The courts are going to have to settle this matter once and for all," Gupta said. "And I hope that the extreme nature of the way that the administration has been conducting itself will actually prompt the courts to hold to these protections, because they're demonstrating how important they are." Despite its role in the major Trump cases, the firm's focus is usually on Supreme Court, appellate and constitutional litigation. This term alone, the firm had four arguments before the Supreme Court, Gupta said. Wind back a year, and that's seven arguments before the justices in the last two terms — a feat for the small team. He called this one of the "busiest and most professionally intense periods" for the entire firm. But that's also fostered an "espirit de corps" among the close-knit team. "I know everyone feels this way, that it is a privilege to be able to fight back," Gupta said. "There are a lot of people that feel helpless right now, and so the fact that we have a law firm, the fact that we're not afraid to stand up to the Trump administration — we're not afraid about what our corporate clients might say, because we don't have any corporate clients — it feels like a real privilege." |
A battle is brewing between the government's three branches. Since returning to the White House, President Trump has sought to establish the executive branch as dominant over its legislative and judicial counterparts. The courts have garnered most of his attention. But on Monday, Congress was dragged into the fight. The charges against Rep. LaMonica McIver (D-N.J.), a sitting lawmaker, over a run-in with immigration agents during an oversight visit to a Newark, N.J., detention center marks an escalation in the executive branch's power struggle. Alina Habba, interim U.S. attorney for the District of New Jersey, announced Monday her office planned to charge McIver with assaulting law enforcement while at the U.S. Immigration and Customs Enforcement facility this month. The charging papers were made public Tuesday. The criminal complaint against McIver says she "slammed her forearms" into immigration officers as they attempted to arrest Newark Mayor Ras Baraka (D), who had joined McIver and two other House Democrats attempting to access the facility. Baraka was previously charged with a misdemeanor count of trespassing, but Habba announced that her office planned to drop it. It comes days after The Hill reported that the Justice Department was considering removing a requirement for U.S. attorneys to take the additional step of consulting with the department's Public Integrity Section when bringing criminal cases against members of Congress. The charge against McIver drew sharp condemnation from Democrats. The Congressional Black Caucus called the count "nothing short of a cowardly attempt to intimidate members of Congress from holding this administration accountable." "To be clear, a member of Congress has the constitutional authority to visit ICE facilities—without an appointment—to conduct oversight," said Rep. Yvette Clarke (D-NY), who chairs the caucus. Other Democratic lawmakers called the charge a "disturbing overreach for the Executive Branch," a "power grab" and "straight out of the authoritarian playbook." Trump said Tuesday that McIver was "out of control." Though the arrest marks an early test for Congress in its tug-of-war with the administration, the judiciary has for months been waging its own war with Trump over the separation of powers. The president's onslaught of executive actions has sparked hundreds of lawsuits, many challenging his expansionist view of presidential power. His Justice Department has argued that he possesses sole authority over the executive branch – and that the courts can't do much to stop him. However, dozens of judges from the district courts to the Supreme Court have served as a check on that power. |
Trump, courts due process battle heats up |
The Supreme Court's emergency order blocking the administration from swiftly deporting a group of alleged Venezuelan gang members under the Alien Enemies Act (AEA) is poised to spark a wave of litigation over how much due process the migrants are owed. The high court made clear that the migrants must be given a reasonable opportunity to go to court before authorities remove them to a Salvadoran mega prison — and that the administration's existing notice was insufficient. "Notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster," read the court's unsigned opinion released late Friday. But the justices did not provide a solution, instead directing the lower courts to address "the issue of what notice is due." It's set to invigorate a battle in the more than dozen cases proceeding across the country. Many cases are brought by the American Civil Liberties Union (ACLU), which has pushed for providing notice 30 days before removal. In Pennsylvania, U.S. District Judge Stephanie Haines, a Trump appointee, in a ruling last week suggested 21 days was sufficient but acknowledged "further analysis" was needed. "The Court knows that individuals in ICE custody are frequently moved, counsel for such individuals may have a difficult time speaking with them, and such individuals cannot realistically file for habeas relief within a matter of hours," Haines wrote. U.S. District Judge Charlotte Sweeney, an appointee of former President Biden overseeing a case in Colorado, had similarly settled on 21 days until she later ruled that Trump couldn't carry out deportations under the AEA at all. But not all judges are landing on three weeks. In California, U.S. District Judge Sunshine Sykes, another Biden appointee, said the administration must provide two-weeks' notice before using the AEA to deport Venezuelan national Yostin Sleiker Gutierrez-Contreras. But the shorter window may merely reflect how that case is litigated. Gutierrez-Contreras is not represented by the ACLU, and his lawyers hadn't asked for anything more than two weeks. Ultimately, the issue could resurface at the Supreme Court. "Lower courts should address AEA cases expeditiously," the justices stressed in their opinion. |
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The court took up no new cases at its recent conference. We're up to eight cases so far for the next term. |
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Justices' book deals force tossing copyright case Five justices' recusals forced the court to decline an appeal brought by Ralph Baker, who alleged author Ta-Nehisi Coates and a group of companies and individuals infringed the copyright of his memoir. Lower courts dismissed the case, Baker v. Coates. Baker, representing himself, asked the Supreme Court to take up his bid to revive it. But with only four justices eligible to consider the case, the court couldn't take action. "Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed," the court's order reads. Why so many recusals? The justices didn't explain, but it appears that most did so because they have book deals with Penguin Random House. Bertelsmann, the publisher's parent company, is a party in the case. Justice Sonia Sotomayor has received several million dollars for publishing five books with the company. It also published Neil Gorsuch's 2020 book, Ketanji Brown Jackson's recent autobiography and Amy Coney Barrett's forthcoming autobiography (which will be out Sept. 9). That leaves Samuel Alito, who also recused without offering a reason. Unlike most other justices, Alito owns various individual stocks, leading him to frequently recuse. Alito has issued recusals nearly 30 times this term, roughly three times more than any of his colleagues. The apparent decision to step aside from the case over the publishing deals is a notable shift, one that comes after growing scrutiny over the justices' book income and the court's new code of conduct. Sotomayor previously received criticism for not recusing from several petitions involving Penguin Random House, including one in 2013 and another in 2019. Justice Stephen Breyer, who published several books with the company, had recused from both. |
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The court has added six new relists for its upcoming conference. Here's a quick look at each: |
- Election dispute mootness: In Meadors v. Erie County Board of Elections, a group of New Yorkers who supported an independent candidate in Buffalo's 2021 mayoral election is attempting to revive its challenge to the state's ballot access requirements. Lower courts threw out the suit following the election, finding the dispute was moot. The voters want the Supreme Court to loosen the mootness standard for election disputes so that its case can still proceed, even after voting ends.
- Fourth Amendment's emergency exception: In 2021, police entered William Trevor Case's Anaconda, Mt., home for a welfare check, shooting and wounding him after seeing a dark object near his waist. A jury found Case guilty of assault on a peace officer, but he argues police's lack of a warrant violated the Fourth Amendment. Montana's top court found it was covered by the amendment's exception for emergencies. In Case v. Montana, Case wants the justices to resolve a split among the lower courts as to whether police must have "probable cause" to believe an emergency is occurring, or some lower level of suspicion.
- Sentence reductions (x2): Federal law prohibits judges from modifying a prison sentence once it's imposed, except for certain circumstances. Two separate petitions filed by criminal defendants, Fernandez v. United States and Elliott v. United States, ask the justices to widen when defendants can receive reductions for "extraordinary and compelling reasons."
- Habeas deadline: Ohio Attorney General Dave Yost's (R) office has asked the justices to reject a habeas petition that raises claims of ineffective counsel filed by Kayla Ayers, whom a jury convicted of setting fire to her father's house. Normally, defendants have only one year to file their petition, which allows prisoners to challenge the constitutionality of their detention. But a lower court said Ayers met an exception that restarts the clock when a defendant uncovers a previously undiscoverable "factual predicate." In Chambers-Smith v. Ayers, Yost's office argues the exception doesn't apply.
- California's pork law: Two years ago, the court rejected a Dormant Commerce Clause challenge to California's law requiring pork sold in the state meet certain humane standards. The clause prohibits states from passing laws that discriminate against other states in commerce, but the plaintiffs in that case conceded California's law doesn't discriminate. The court rejected their other theories and upheld the law. Now, in Iowa Pork Producers Association v. Bonta, a new group of plaintiffs backed by 23 Republican state attorneys general are advancing such a discrimination claim, hoping the justices will take up their case to strike down California's pork restrictions once and for all.
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- The Supreme Court on Thursday made it easier to bring unreasonable force claims against police in deciding unanimously that courts should examine the "totality of the circumstances" in deciding whether an officer can be tried for unreasonable force, instead of only the "moment of the threat."
- The Justice Department announced Monday that it secured a guilty plea in a fraud scheme involving a former contractor of a "USAID-funded program," a reference to the U.S. Agency for International Development that became an early target of the Trump administration.
- U.S. District Judge Joshua Wolson is a Simpsons fan.
- A Texas man is seeking nearly $1 million in damages from Whataburger for allegedly causing an allergic reaction by not removing onions from his fast-food meal, as requested.
- Sotomayor and Jackson dissented from the Supreme Court's order Monday allowing Indiana to execute Benjamin Ritchie, who was convicted of murdering a police officer but alleged his attorneys had a conflict of interest. Ritchie was pronounced dead early Tuesday morning.
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Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- A magistrate judge will hold a virtual hearing on the Trump administration's request to dismiss the misdemeanor charge levied against Newark's Democratic mayor over the recent ICE facility clash.
- A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in Open Technology Fund's challenge to the administration's funding freeze. The administration's move came as part of its broader effort to dismantle the U.S. Agency for Global Media.
- A federal judge in New York is set to hold a motions hearing in 12 Democratic state attorneys general's lawsuit challenging Trump's tariffs.
- A federal judge in Washington state is set to hold a preliminary injunction hearing in a challenge brought by eight local jurisdictions to the administration's threats to withhold HUD Continuum of Care (CoC) grants and Federal Transit Authority grants unless certain conditions are agreed to.
- A federal judge in Massachusetts is set to hold a hearing for injunctive relief in a challenge brought by a Guatemalan man deported to Mexico.
- A trial is scheduled to begin in League of United Latin American Citizens' challenge to the 2021 redistricting of congressional and state legislative districts in North Texas, which claims that racially discriminatory districts were drawn.
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- The Supreme Court will announce opinions.
- Mahmoud Khalil, the former Columbia University student who has been detained by Immigration and Customs Enforcement (ICE), is due in immigration court in Louisiana.
- A federal judge in Washington, D.C., is set to hold a preliminary injunction hearing in a challenge to Trump's Jan. 20 order regarding the death penalty, brought by 21 death row inmates whose sentences were commuted by President Biden.
- Another D.C. judge is set to hold a hearing in three transgender inmates' lawsuit over the Trump administration ending their access to gender-affirming care in prison.
- A federal judge in Massachusetts is set to hold a preliminary injunction hearing in a lawsuit against the National Institutes of Health for terminating various grants over concerns they promote DEI.
- A California federal judge is set to hold a preliminary injunction hearing in a challenge to Trump's ability to conduct reductions-in-force at agencies across the federal government.
- Another federal judge in California is set to hold a preliminary injunction hearing in a challenge to two Trump executive orders that are anti-DEI.
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- An update on discovery in Kilmar Abrego Garcia's case is due.
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- The courts are closed for Memorial Day.
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- The Supreme Court will announce orders.
- A federal judge in California is set to hold a hearing considering whether to transfer a lawsuit over Trump's tariffs, brought by Gov. Gavin Newsom (D) and the state, to the U.S. Court of International Trade.
- A federal judge in Massachusetts is set to hold a class certification hearing in an ACLU-backed challenge by seven transgender and nonbinary individuals to Trump's order preventing people from updating the sex marker on their passports.
- A federal judge in Washington state is set to hold a preliminary injunction hearing in a challenge to the Transportation Security Administration's termination of its 2024 collective bargaining agreement that covers roughly 47,000 TSA workers.
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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