Katrianna Brisack: March 2016 Archives

Update: SC Split over Labor, 4-4

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Just this Tuesday, the Supreme Court handed down a one-page per curiam decision in the controversial case Friedrichs v. California Teachers Ass'n, (14-915), which concerned whether or not teachers could be compelled to subsidize a union they had not joined. The Court effectively ruled that they could, simply by failing to muster a fifth vote for reversal.

This ruling sets no lasting precedent, but it is unlikely that the Court will overturn both Abood v. Detroit Board of Education and this opinion in the future. President Obama's current nominee to fill the vacant seat, Judge Merrick Garland, has frequently sided with organized labor in the lower courts, and will probably join the liberal bloc in a possible rehearing, denying Friedrichs' claim more permanently. Even if this specific case, or another presenting a similar question, is reheard before the Court changes, it is unlikely to have a different result.

Though this may appear to be a triumph of the right to collective bargaining, in reality it weakens the protection of individual opinions that is essential to the preservation of our constitutional framework. As the Court observed more than seventy years ago, "It seems trite but necessary to say that the First Amendment was designed to avoid these ends by avoiding these beginnings... We set up government by consent of the governed, and the Bill of Rights denies to those in power any legal opportunity to coerce that consent" West Virginia v. Barnette, 319 U.S. 624 (1943). That statement seems equally applicable now.

Our earlier "On Certiorari" discussion of this case with Michael Carvin, petitioner's lawyer

Enjoin Yourself! (From Using Apple Gadgets)

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"Apple core!"

"Baltimore!"

"Who's your friend?"

"Some criminal insurgent guerrillas. Why do you ask?"


Just today, Apple unveiled the newest version of their popular smartphone, called the iPhone SE. Not much is different about the SE model - it is merely a smaller version of the current iPhone. It uses the same microprocessor, essentially the same camera, and roughly the same features.

It also has the same embattled encryption technology, and chances are very good the date of its release - one day before the first major hearing in the Syed Farook case - is an intentional attempt to sidestep our government and continue marketing devices which pose a significant risk to public safety.

Searches of personal effects conducted without a warrant, including searches of smartphones, are prohibited by the Fourth Amendment to our Constitution. See Mapp v. Ohio, 367 U.S. 643, and Katz v. United States389 U.S. 347. However, the Supreme Court has never ruled that evidence procured with such a warrant is invalid under the exclusionary rule, and resisting such an order when lawfully procured is traditionally referred to not as a stand for liberty, but an instance of obstruction of justice.

Apple is deliberately misconstruing our founding charter in its protracted battle with the DOJ and the FBI, attempting to siphon profit and publicity from a national tragedy. Though this behavior from a billion-dollar corporation is nothing new, the ambivalence towards and even admiration of this conduct shown by those who continue to purchase the company's overpriced products is surprising.

Therefore, we at PlanetGreen ask you to join us in refraining from the use of all technologies created or marketed by Apple. Though the company definitely won't have a patriotic epiphany its profits keep skyrocketing, if we band together we can prove that Democratic candidate Al Smith was right when he declared in 1928: "The best way to kill anything un-American is to drag it out into the open, because anything un-American cannot live in the sunlight."

UPDATE - Even though our government has been successful in unlocking Farook's phone without enlisting Apple's help, the boycott is still on, at least until the company recognizes that our national security is more important than protecting a criminal's so-called "right" that has never been recognized as such.
herblockcp.jpgJust yesterday, President Obama nominated appeals judge Merrick Garland, currently of the D.C. Circuit Court of Appeals, to replace the late Antonin Scalia on the Supreme Court. This nomination, made while the Court was on break, immediately rekindled debate over whether a lame-duck President should be allowed to appoint candidates of his choice to the Court. Ironically, though, while Judge Garland has been publicly cast as an unpredictable centrist, it is the GOP's politicians who have done the majority of the swing-voting in this situation: first supporting him and praising his qualifications for years, then vowing to keep him off this country's highest bench at all costs.

However, in refusing to even consider Judge Garland, these conservatives have failed to realize that they could be worsening their own party's position. With each new contest, it seems increasingly unavoidable that Hillary Clinton will be the Democratic nominee. For the Republicans, Donald Trump is likely unstoppable, having already aggregated 673 out of 1,237 necessary delegates (that's a 119-delegate lead over both his opponents combined). In all probability, however, the billionaire insurgent will perform poorly in the general election, forcing the hard-liners to confirm a potential Justice named by a Democrat. And if they succeed in compelling Obama to withdraw Garland's name, they could face an even more liberal appointee.

Another misconception about this development is that Democrats should be unhappy with the choice simply because he was not the farthest-left candidate on the short list. To be sure, his experience as a federal prosecutor in many high-profile domestic terrorism cases may have helped to shape his views on criminal procedure, which would probably be solidly to the right of the Court's current liberal wing. However, his record on the D.C. Circuit still evinces a more progressive viewpoint on those issues than that of Sri Srinivasan, who has never overturned a single criminal conviction.

In labor law cases, Judge Garland has consistently upheld the NLRB's decisions and safeguarded the liberties of workers and the right to collective bargaining. His environmental record shows a similar deference to administrative rulemaking, even when taking these stands entails creating disparities between circuits or even weakening the effect of a deleterious Supreme Court decision. This regard for substantial justice could only benefit the Court and the nation.

In a final note, the Republicans regularly attribute to their own party a profound concern about governmental overreach and a deep belief in the separation of powers, but their refusal to perform a necessary part of the political process belies their rhetoric. In this polarized climate, both parties would do well to heed Justice Frankfurter's comments on the comparatively minimal political gridlock existing in 1952: "It would stultify one's faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immediate parties in interest, will not find ready accommodation for differences on matters which, however close to their concern and however intrinsically important, are overshadowed by the awesome issues which confront the world." (Youngstown v. Sawyer, 343 U.S. 579). Or they could start by simply acknowledging that, as Justice Jackson (who once occupied the now-vacant S.C. seat) once said, "Process which is a mere gesture is not due process." (Mullane v. Hanover, 339 U.S. 306).

Boycott Food: Progressive Cookies

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Mondelez.jpgWe at PlanetGreen thoroughly understand the love-hate relationship between liberals and boycotts. On the one hand, they're empowering illustrations of how a little solidarity truly can go a long way. But on the other, even the most dedicated activists still cannot escape those basic human weaknesses that so often hamper attempts to rise above corporate wrongdoing, like the need to stay on a budget, the search for that perfect Christmas-y touch, or the craving for cookies.

Fortunately, this time, the quest to steer clear of Oreos and the other products of grocery conglomerate Mondelez International does not have to result in sugar deprivation, thanks to Robert and Belle La Follette.

LaFollette 1.jpgIn 1909, the Wisconsin Senator founded an eponymous magazine which primarily featured articles by many leading liberals of the day, such as Lincoln Steffens, Ida Tarbell, and Louis Brandeis, on subjects ranging from the Red Scare to the emerging Civil Rights Movement. Senator Bob, in the introduction to the first issue, set forth the mission of his publication:

"In the course of every attempt to establish or develop free government, a struggle between Special Privilege and Equal Rights is inevitable. The battle is just on. It is young yet. It will be the longest and hardest ever fought for Democracy. In other lands, the people have lost. Here we shall win. It is a glorious privilege to live in this time, and have a free hand in this fight for government by the people."

Alongside the exposes and editorials, it also contained a section by his wife and co-editor, Belle, on economical living, education reform, healthy habits - and recipes. Her century-old "Butter Cookies" taste remarkably like Nilla wafers (a Mondelez product), and are an easy, inexpensive, and delicious substitute for the off-limits snacks:

PROGRESSIVE COOKIES

La Follette 3.jpgIngredients:
1 cup flour
1/2 teaspoon baking powder
1/2 stick butter, melted
2/3 cup sugar
1 egg
Small pinch salt

Directions:
Preheat oven to 325 degrees.
Combine dry ingredients in medium-sized bowl, then add eggs, butter, and sugar. Stir until smooth (batter will be wet).
Spoon in small teaspoonfuls onto cookie sheet. Bake for 15-20 min or until golden brown around edges.
Enjoy (and bask in the knowledge of your fidelity to the cause!)

While There Is a Criminal Element...

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serverpic.jpg...Socialists have, historically, been lumped in with it. Many liberals have noted the uncanny parallels between Bernie Sanders' current campaign and the Presidential bid that Eugene Debs made from his prison cell in 1920, after being incarcerated in the Red Scare crackdown on the political left. As he famously declared after his conviction, he was only jailed for his belief in the equality of all people: " Your Honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, and while there is a criminal element I am of it, and while there is a soul in prison, I am not free." This time around, however, it isn't Sanders who faces a potential run-in with the law on his road to the White House; rather, it is his opponent, establishment favorite Hillary Clinton.

Though Hillary herself does not seem very concerned about the potential indictment of herself or her close associates for her mishandling of classified information, it remains a distinct possibility. If there are charges, prosecutors have multiple options for how to pursue the case, and rampant speculation concerning possible counts against the Secretary has clouded the conversation. Realistically, though, an indictment concerning the server incident would probably be based in the following statutes:

hillary.jpgThe most straightforward avenue is the Espionage Act, which subjects "Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States... any classified information" to up to ten years in prison. Title 18 U.S.C. §798. Though a sentence containing any prison time is highly unlikely, Hillary would have to turn over the servers if convicted - a dramatic consequence that her opponents would have no difficulty converting into a campaign spectacle. Even though she is unlikely to receive anywhere close to the prescribed penalty, an eventual prosecution would doubtlessly draw off this section because of its unquestionable relevance to the facts. Ironically, this is also the same law that Debs was imprisoned under another portion of, but no serious constitutional challenges have yet been sustained.

Prosecutors will likely compound that count with 18 U.S.C.
§1519, an obstruction-of-justice law which, for most of its career, has been restricted to instances of paper shredding. However, its actual language is quite broad, criminalizing conduct that "alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object." Interestingly, the Supreme Court ruled last Term in Yates v. United States (13-7451) that an illegally caught grouper fish was not a "tangible object" within the meaning of the statute, because it was not analogous to the corporate records the legislature intended to preserve by passing the law. This could result in a drawn-out challenge on the grounds that emails are not technically "tangible objects" either, potentially redefining the rule yet again.

Given the prospective infirmities of §1519 and the fact that Hillary has long been the establishment candidate in the Democratic race, a conviction is not expected. Rather, this controversy will probably resolve itself in either dropped charges, an inconclusive plea deal that does not distinctly assign fault to the Secretary or, if such a deal is not offered, in lengthy litigation over the technical wording and application of the apposite laws. Whichever occurs, however, this story will indubitably continue to dominate political headlines in the coming months.

Reversed and Remanded - and Reversed

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Last year, in Michigan v. EPA (14-46, 576 U.S. 14), the Supreme Court ruled that the EPA incorrectly neglected to thoroughly consider the economic costs of its lifesaving Mercury and Air Toxics Standards (MATS). Expanding on that ruling, the Court deviated from its usual procedure and granted an application to stay enforcement of Obama's Clean Power Plant just last month.

Now, just yesterday, Chief Justice Roberts unexpectedly denied Michigan's request to stay enforcement of the MATS. After the Supreme Court handed down its ruling in Michigan, the cause was remanded to the D.C. Circuit, which (in the petitioners' words) "refused to vacate the unauthorized Rule, and instead left it in place with the effect of binding law." On Thursday, one of the S.C.'s most conservative members declined to take any action on that.

This case is important to the entire legal and environmental community, but it is also personally relevant to me. Ever since the certiorari petition was filed in Michigan, I had followed that case intently, and when it was granted I attempted to write and file an amicus curiae brief in support of the respondents. I was fourteen years old at the time, as enthusiastic as I was inexperienced and still more than a decade away from satisfying the S.C.'s bar admission requirements. My chances of procuring consent to file the brief were exceedingly slim.

The chances of everything that happened next were even slimmer.

I had listened to the recordings of almost every Supreme Court oral argument for years, but my familiarity with the cases and advocates only made it more surreal when I made one last phone call and, much to my surprise, found myself talking to Roman Martinez about the bar-admission situation. Far from dismissing my brief, as I fully expected, he took the time out to write me over the course of the next days, forward my pleading to Solicitor General Verrilli, and even invite me to attend the hearing.

The respondents' argument, on March 25th of 2015, was among the most forceful and engaging presentations I have read or listened to. General Verrilli opened for the EPA, carefully navigating hostile questions from Chief Justice Roberts and Justice Kennedy before launching into an accessible, cohesive explanation of the rules' background and effects in a manner strongly reminiscent of Louis Brandeis' renowned Muller v. Oregon (208 U.S. 412 (1908)) brief. To conclude, he outlined the EPA standard for reasonable administrative action, and deftly dealt with the preclusion undertones B&B v. Hargis had introduced. Then Paul Smith took over, speaking for industries supporting the regulations. He dealt mainly with the more technical aspects of the EPA's studies before subtly and effectively invoking the mootness question by describing how the majority of emissions sources had already implemented the MATS.

The decision in the case did not come down until June 29th, the last day of the Term. The D.C. Circuit's earlier ruling in favor of the EPA was reversed and remanded without vacatur 5-4, the late Justice Scalia speaking for the majority. The Circuit, pursuant to that disposition of the case, allowed the MATS to remain in force until the Agency was able to update them taking costs into consideration. Subsequently, Michigan et al. sought this stay of the rules, employing the preclusion and mootness angles to make their claims appear urgent. These arguments, however, were just sanctioned by Roberts in his denial of their application, unexpectedly strengthening administrative discretion instead of weakening it further.

Through all the twists and turns of this case, from the excitement of a pending litigation to the disappointment of what appeared to be final defeat and, now, to Roberts' surprising decision to render the earlier opinion unenforceable, I remain extremely grateful to everyone at the Department of Justice, and especially to General Verrilli and Mr. Martinez, who allowed me to feel like a small part of this unforgettable ride. Thank you for the incredible experience I call my first case.

K letter.png(Katrianna posted the text on this entry and left out this image, so I went maverick on her and added it. -Her big sister)

On Certiorari with Carter G. Phillips

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If you're reading this, you're currently using surface-mount technologies. These extremely small apparatuses are components of almost every technological device, from the flash drive in your pocket, to the phone in your bag and the computer in front of you, to the television flashing in front of you, the stereo in the background, and even the car outside your house. STMs were revolutionary when they were first invented in the 1960s, but they have now become commonplace facts of modern life.

Maybe that's why it's surprising that these diminutive devices are at the heart of a currently pending Supreme Court case poised to potentially redefine the standards federal courts use to determine whether punitive damages are appropriate. On February 23rd, the Supreme Court heard oral arguments in Halo Electronics v. Pulse Electronics (14-1513). This case, originating in the U.S. District Court for Nevada, deals on its face with the alleged infringement of Halo's patents for three types of STM by Pulse, which, the district court found, occasioned enhanced damages.

Although this case might seem, at first, to be technical and narrow in its scope, in reality it could profoundly affect the controversial issue of judicial discretion. The trial order and the Federal Circuit's eventual decision were both rather vague on this question, and during oral arguments the Supreme Court remained equivocal as to its view of the subject. Therefore, I invited Carter G. Phillips, the respondents' counsel, to share his perspective on the case with us.

During the argument, Phillips seemed concerned about the fairness of the relevant statute, 35 U.S. §284, which only plaintiffs in patent actions can invoke. When I asked, he expressly named that as the factor that differentiates this case from Octane Fitness v. ICON Health, 134 S. Ct. 1749, which was argued and decided in 2014. The Court's issuance of another certiorari writ in circumstances so similar to Octane except for this fact seems to establish this as the central contention, a fact that could favor the respondents. In the past, the Court has rejected practices that have acted as disproportionate obstacles to either party, down to and including the traditional burden of proof (see Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)), and without Justice Scalia it is unclear whether the Court could return to its Adickes-era vision of substantial justice.

Another major issue is the Seventh Amendment quandary stemming from the fact that these enhanced damages are a question both of law and of fact. If the Court was to decide on this, it could set itself up to re-examine the controversial divide between judicial power and jury discretion. Phillips, however, believes this is unlikely: "Facts are generally for the jury under the Seventh Amendment. So to avoid that problem, the Court should stick with de novo review and recognize that the question is really a legal issue." The Justices' interests in oral argument further hinted that they are unlikely to conclusively decide this.

The dynamics of this argument are also fascinating. The intervention of the United States in  what would otherwise seem to be a settled matter signals the importance of this case as a precedent in the area of judicial discretion, and materially changes the atmosphere of argument. As Phillips put it, "The United States invariably captures the Justices and law clerk's attention. That is a brief that will always be read carefully." The participation of the US was also unusual because the respondents' time was not divided, even though Phillips maintains that the facts of Halo do differ from those of its companion case, Stryker v. Zimmer. Once again, though, the Justices maintained a narrower view of the case, choosing not to probe deeply into these discrepancies.

Halo is the first case Phillips has argued in the S.C. since Justice Scalia's passing, and I had to ask how the Justice's famously rigorous questioning impacted his style of advocacy. He told us that he was personally able to anticipate most of their exchanges over the years: "I sometimes misjudged how he felt about a particular case, but the questions that flowed from what he thought about the merits were generally pretty predictable." He also said that Scalia's "absence did not seem to affect the pace of the argument, except perhaps both sides were given a little more of an opportunity to answer each question." Subsequent events, most notably the shattering of Clarence Thomas' long silence, prove that perhaps there will also be more opportunities to ask questions in the future.

Though on its surface Halo may appear to be an unexceptional dispute between two corporations over the particulars of patent infringement penalties, in reality the precedent it sets could deeply influence the future of American civil procedure.

About this Archive

This page is a archive of recent entries written by Katrianna Brisack in March 2016.

Katrianna Brisack: February 2016 is the previous archive.

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