Should Justices Conduct Online Research? | Why Recusals Matter

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Mar 21, 2018

Today marks the last sitting this week at the Supreme Court, and it will likely bring us snow along with a sprinkling of decisions. We don’t know how much snow or how many decisions, but hang tight. One thing we are pretty sure of is that an oral argument will take place today, no matter what the weather. The case to be argued is Upper Skagit Indian Tribe v. Lundgren, an Indian tribal sovereignty case from Washington state.  A lot has happened already this week, and we are digging into some of it for today’s edition. From yesterday’s argument, we look at the latest tiff among justices over the use of non-record information in cases. And from a Monday cert denial, a look at the importance of recusals. Plus, some SCOTUS-related books that are worth a look. Thanks for reading! — Tony Mauro, tmauro@alm.com, and Marcia Coyle, mcoyle@alm.com

'I Don't Think We Should Do That': Kennedy Snipes at Sotomayor for Internet ResearchThe U.S. Supreme Court may yet divide over a high-profile, First Amendment challenge to California’s law requiring certain disclosure notices by licensed and unlicensed crisis pregnancy centers. But as the arguments in NIFLA v. Becerra on Tuesday showed, that is not the only issue that seems to divide them. A snappish comment directed at Justice Sonia Sotomayor by Justice Anthony Kennedy revealed differences over when the justices may look outside the record of the case before them. Here’s how it unfolded … Justice Sotomayor was questioning Michael Farris of Alliance Defending Freedom—the lawyer representing the challengers to the law—about his argument that unlicensed centers do not provide medical services. She said she had looked at how a few of those centers advertise themselves. One in particular, Sotomayor said, showed a woman in an apparent nurse’s uniform, standing in front of an ultrasound machine in an exam room. The website, she said, also says clients will be evaluated by nurses and they follow HIPAA regulations, “which, if they’re not a medical provider, they don’t have to follow HIPAA,” Sotomayor pointedly noted. Sotomayor engaged Farris in a lengthy colloquy over whether women who go to those centers should be told that the centers are not licensed medical facilities despite the website pictures. Justice Kennedy, leaning forward, cut off Sotomayor’s next question by saying: “Well, in this case I didn't go beyond the record to look on the internet because I don't think we should do that, but I do have a hypothetical.” Later in the argument when California deputy solicitor general Joshua Klein was defending the state law, Justice Samuel Alito Jr. asked Klein if he “would dispute” statistics in an amicus brief by a party to a state court case that 98.5 percent of the centers covered were pro life centers. Klein answered: “Your, honor, yes. And I understand we're speaking outside of the record here,” and he then answered Alito’s question about the statistics. The in-the-record, outside-the-record differences among the justices have popped up in other arguments. On Feb. 20 in City of Hays, Kansas v. Vogt, Chief Justice John Roberts Jr. became upset when, in response to a question from Justice Stephen Breyer, Vogt’s lawyer, Kelsi Corkran of Orrick, Herrington & Sutcliffe, was about to explain why a statement was not in the record. ➔ Roberts said: “That’s an important point, isn’t it? Well, before we start having an extended exchange about … something that’s not in the record, I — well, I guess I would just like to point out that it’s not in the record. There’s a reason we confine things to what’s in the record, including, ‘how do we know what this is if it’s not in the record?’” Still angry, Roberts added: “As far as I’m concerned, coming in and saying I want to know about this thing that’s not in the record is no different from somebody else coming off the street and saying: ‘Hey, wait a minute, I know what happened in this case.’” ➤➤ Read More: Key Justices Frown on California Abortion Speech Law

VIDEO EXTRA! Compelled speech. Gerrymandering. Cy Pres. Click here and catch up with Marcia Coyle.

When Recusals Matter We reported in yesterday's edition on the court's denial of cert in Speedway LLC. v. Wilson, one of four pending petitions that ask the court to examine so called "cy pres" settlements. Those are the "as close as possible" arrangements in class actions where it is impractical or impossible to compensate class members. When multiple cases raise the same or similar issue, justices have said in the past that there's not much harm in denying cert in one or more, because the issue will get resolved sooner or later. But that is cold comfort for the party whose case was turned down. In the Speedway case, another factor may have played into the court's decision to deny cert: Justices Samuel Alito Jr. and Neil Gorsuch recused. The court's unwritten rule is that four justices are needed to grant cert—a goal that is considerably harder to reach when only seven, not nine justices, are participating. But we'll never know the real reason for the cert denial. Justices almost never say why they deny cert, unlike the Supreme Court of the United Kingdom. On top of that, justices almost never state why they recuse. And that irks Tristan Duncan, the Shook Hardy & Bacon partner who petitioned the court in the Speedway case. "The court must be accountable for its decisions, and we must be able to evaluate the impartiality and accountability for the court’s decisions," Duncan said in a statement. "It is just as bad to abdicate responsibility and not decide at all as it is to decide a case with bias. And if recusals undermine either assumption for the legitimacy of the court’s decision, then the foundation for life tenure is undermined." She added, "Such recusals, if unnecessary or even improper, skew the deliberative process and arguably constitute an abdication of judicial responsibility. I say this as someone who is a big believer in the Separation of Powers and need for judicial independence to secure the Rule of Law." --> Back to the Speedway case: A cy pres fund was established to encourage the passage of new laws requiring gasoline to be sold by “temperature-adjusted gallon” instead of the current actual-gallon measure. Defendants included dozens of large and small oil companies and other corporations. Among them is the Conoco Phillips Company, and Alito's 2016 financial disclosure form states that he owns $15,000 or less of the company's stock. Gorsuch does not appear to own conflicting stocks, but the Speedway case and related matters were before the U.S. Court of Appeals for the Tenth Circuit for years. Gorsuch was a judge on that circuit, though he had joined the Supreme Court by the time the Tenth Circuit decided the case.

What We're Reading The Justice of Contradictions: Antonin Scalia and the Politics of Disruption:Two years after Justice Scalia's death, University of California Irvine scholar Rick Hasen takes an important and controversial look at Scalia's inconsistencies, as a sometimes textualist and originalist, a Trump-style disrupter and, in spite of his courtly manners, someone whose tone in opinions seemed aimed at delegitimizing his ideological opponents. Watch Hasen on C-SPAN's Book TV this weekend, and take a look at a tough interview of Hasen at SCOTUSblog. William Howard Taft: As the only person to have served both as president and chief justice, you'd think Taft would be a better-known figure than he is. This very readable book by Jeffrey Rosen, the exuberant president and CEO of the National Constitution Center, brings Taft to the fore in both capacities. Taft will be under-appreciated no more. Fumbled Call: This one is a must for media lawyers and First Amendment fans. Author David Sumner takes a deep dive into the 1967 Supreme Court case Curtis Publishing v. Butts, an important libel case brought by football coaches Bear Bryant and Wally Butts against the Saturday Evening Post that was decided in the wake of the better-known case of New York Times v. Sullivan.

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