The Supreme Court's ruling in Zorn v. Linton illustrates the pathologies of both its current approach to qualified immunity doctrine and its willingness to resolve appeals in such cases summarily.
FWIW, the (entirely correct) point about the lack of bottom side amicus briefs in summarily reversed cases carries an implication that is probably uncomfortable to much of the SCOTUS bar. Which is, there are way too many amicus briefs and the role they play in the Court's decision-making is way too undefined.
For instance, this whole practice of not filing bottom side amicus briefs at the cert stage is obviously premised, as Prof. Vladeck says, on the idea that if a case gets a lot of amicus attention it will look "important". But if that is actually what is deciding cert petitions that is really bad! The cert standard shouldn't be (and officially isn't) "how many well funded interest groups and law professors care about the case?". If everyone just assumes the Court is violating that and counting up the amicus briefs, that's a bigger problem than the occasional summary reversal.
Indeed, one problem with the modern Court Prof. Vladeck doesn't focus on is that it simply loves culture war "salient" cases. It isn't merely that the Court is taking less cases (though it is)-- it's that the cases it is taken are dominated by the type of cases that generate online and media discussion and that law professors and groups endlessly want to talk about. If you have a boring business case with a circuit split, you are generally screwed. And amicus practice, if it affecting cert grants, makes this worse.
This is on top of the fact that a lot of amicus merits briefs are just utter crap. They mostly add nothing. For every Marty Lederman interpreting when the Guard may be deployed, there's at least 20 briefs filed soley to generate donations or make lawyers or law professors feel the ego gratification of having filed a brief in a big case.
Bottom line, amicus practice is probably making SCOTUS worse, not better, overall, and SCOTUS should probably make it very hard to file one unless there is something truly new to say (and they maybe should be banned entirely for either side at the cert stage).
I guess it depends on what you mean by very good. One suspects that few legal briefs these days make much of a difference with the right-wing court majority who have already made up their minds about the result they will reach regardless of the Constitution, black letter law, history, tradition, major questions or any other new rules they have made up to pretend they follow. Parody may be at least as effective in revealing to the general public the bullshit that the court pretends is law in their written opinions.
So everyone who writes an amicus brief but fails to convince the court should just give up the next time? A court that fails to take the law seriously merits ridicule.
Sorry I cannot help but be cynical about the utility of amicus briefs submitted to this Supreme Court. Yes, they take their work seriously but they seem to view their work as advancing their personal and partisan preferences far more than caring about such mundane things as precedent, law, the Constitution, etc.
People should write amicus briefs with their intended audience in mind. Getting praise on Twitter but not writing in the idiom preferred by the Justices is bad lawyering.
"But they still produce an “opinion of the Court,” one that the current Court treats as having comparable precedential effects to rulings it hands down after plenary review."
Well, if you consider this Court's attitude towards precedent, that ought to amount to roughly nothing - if there were any consistency about it, which is clearly a counter-factual proposition.
Does Congress have any role or ability to reign in the court and its use of the shadow docket? Or does this require some type of constitutional reform?
I'm not an expert, but I believe Article 3, Section 2, Clause 2 allows Congress to limit the Court's appellate powers. "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Does Villarreal have a chance to challenge the constitutionality of the Texas Penal Code they were charged with? [apparently Ann. §39.06(c)]
I read part of the 5th circuit second ruling and was surprised to read that Oldham, of all people, almost seeming to question if qualified immunity has gone too far. Note only that, he cited Thomas:
<<Although many have treated qualified immunity as a “one-size-fits-all doctrine,” Hoggard v. Rhodes, 141 S. Ct. 2421, 2421 (2021) (Thomas, J., respecting denial of certiorari), Justice Thomas has recently questioned whether the logic undergirding qualified immunity is equally implicated in all cases involving official conduct. Officers “exercise a wide range of responsibilities and functions.” Ibid. And courts “have never offered a satisfactory explanation” for why qualified immunity should apply the same way across the board. Id. at 2422. I share Justice Thomas’s concerns.>>
Which raises the question - if the "trend" continues, where will QI end up?
Will the SCOTUS eventually find a case to clarify things?
When it does, is it likely to use that chance to limit its ever growing scope? Or would that require a court with a different composition, which might drastically roll back QI?
It's too bad the Court did not see fit to apply the the same cautious federal common law rule of not making things up to the question of Presidential immunity from criminal prosecution.
Personally, as a Vermont resident, I feel that anyone who wants to sit down in protest on the steps of the State House should be allowed to stay there unsupported until they die from exposure or dehydration. that's their constitutional right. And it is patently evident that your average police officer is capable of maiming a 150 pound woman engaged in passive nonviolent protest by dragging her across the lawn to a waiting cruiser in a wrist lock just as sure as I can break a roast chicken wing. Perhaps the need to resort to such means of applying excessive force is occasioned by the General Assemply's unwillingness to appropriate sufficient funds for an adequately staffed Capital police force or state police of sufficient strength and numbers to carry away a sack of potatoes. But hopefully, this summary reversal on petition for certiorari of the 2nd Circuit's finding of no legal error in the matter by the Federal Court for the District of Vermont will result in no permanent harm to anyone on remand. It is not clear from the article how deep in to those weeds the Court has ventured.
"takes six votes to agree to summary adjudication"
What if four grant cert and then five decide to rule without oral argument? Once they grant cert, can five accelerate the process?
Anyway, Congress should regulate the docket to limit the justices' ability to do what they did here. It basically involved itself in a narrow intracircuit matter. I set aside the broader need for reforming qualified immunity. Which should also be addressed.
Democrats need to gain control of the government & reform the courts. Court expansion should be used as a pressure tactic to, at the very least, obtain other reforms. Major changes are necessary.
I continue to be made aware by Professor Vladeck that some of my former, non-lawyer beliefs about the Supreme Court, which perhaps I had not even explicitly thought about, are incorrect. Specifically that all its key decisions emerge from the application of clear rules, not “customs,” that it does not rush to judgments that can then become in practice durable “precedents”, and Justices are cognitively consonant and consistent over time how and why they arrive at their judgments, and moreover it is clear who among them is on which side, agreeing with or dissenting from the majority. I was hoping that learning about and gaining a better understanding of how the legal sausage is made would allow me to feel more confident in the process, make outcomes more digestible, and calm my periods of outrage. There is a French proverb I have viewed skeptically as expressing a universal truth, "Tout comprendre, c'est tout pardonner", meaning "To understand everything is to forgive everything". In the context of this Supreme Court, a more appropriate saying would be: “To understand everything, is not to forgive,” or “Tout comprendre, c’est ne pas pardonner.”
Á propos availability of injunctive relief against First vs Fourth Amendment violations, the contrasting standards of Burns v Elrod (First) and Lyons (Fourth) seemingly play a key role.
In the Reed v. Goertz case, quibbling over when the clock starts on a statute of limitations for a Section 1983 procedural due process claim seems remarkably short-sighted and completely lacking in common sense and an intuitive sense of justice. When someone’s life is at stake, and an additional DNA test is all that is requested, it would seem that only an irresponsible lack of concern at best and a veiled, mean-spiritedness at worst could be the motivating factor for not requiring the circuit court to address the third constitutional objection.
How does modern QI or even its original cases square with a case like Little v. Barreme? In Little, a Navy Captain was held to be personally liable for damages in seizing a ship pursuant to the President's orders (as Commander-in-Chief) but that order exceeded the authority granted by Congress. Under the modern framework, it would seem Captain Little couldn't have been held to be liable. He neither knew nor had reason to know he shouldn't follow the President's orders. Yet I don't believe Little has been overruled.
What probable cause is there for arresting someone if the act of doing so violates another Constitutional right?
Isn't qualified immunity based on the idea of sovereign immunity? In that case, can some of the "lack of clarity" the Extremes keep finding be corrected by legislation that explicitly addresses such conduct and waives Sovereign Immunity by act of Congress?
FWIW, the (entirely correct) point about the lack of bottom side amicus briefs in summarily reversed cases carries an implication that is probably uncomfortable to much of the SCOTUS bar. Which is, there are way too many amicus briefs and the role they play in the Court's decision-making is way too undefined.
For instance, this whole practice of not filing bottom side amicus briefs at the cert stage is obviously premised, as Prof. Vladeck says, on the idea that if a case gets a lot of amicus attention it will look "important". But if that is actually what is deciding cert petitions that is really bad! The cert standard shouldn't be (and officially isn't) "how many well funded interest groups and law professors care about the case?". If everyone just assumes the Court is violating that and counting up the amicus briefs, that's a bigger problem than the occasional summary reversal.
Indeed, one problem with the modern Court Prof. Vladeck doesn't focus on is that it simply loves culture war "salient" cases. It isn't merely that the Court is taking less cases (though it is)-- it's that the cases it is taken are dominated by the type of cases that generate online and media discussion and that law professors and groups endlessly want to talk about. If you have a boring business case with a circuit split, you are generally screwed. And amicus practice, if it affecting cert grants, makes this worse.
This is on top of the fact that a lot of amicus merits briefs are just utter crap. They mostly add nothing. For every Marty Lederman interpreting when the Guard may be deployed, there's at least 20 briefs filed soley to generate donations or make lawyers or law professors feel the ego gratification of having filed a brief in a big case.
Bottom line, amicus practice is probably making SCOTUS worse, not better, overall, and SCOTUS should probably make it very hard to file one unless there is something truly new to say (and they maybe should be banned entirely for either side at the cert stage).
I agree with much of this; the Court could do itself a lot of favors if it imposed more limits on amicus briefs, but it's too worried about the costs.
I'll just note that I've made the culture-war point elsewhere:
https://www.stevevladeck.com/p/71-murthy-v-missouri-as-a-microcosm
As long as the limits would not prevent brilliant amici such as the one from The Onion in Novak v. City of Parma.
https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf
The Onion's brief wasn't actually very good as a legal brief. I understand it's funny but you write these things to achieve a result.
I guess it depends on what you mean by very good. One suspects that few legal briefs these days make much of a difference with the right-wing court majority who have already made up their minds about the result they will reach regardless of the Constitution, black letter law, history, tradition, major questions or any other new rules they have made up to pretend they follow. Parody may be at least as effective in revealing to the general public the bullshit that the court pretends is law in their written opinions.
Did it achieve the result?
Sometimes understanding that you are talking to people who take their work seriously is more important than the desire to be cute.
So everyone who writes an amicus brief but fails to convince the court should just give up the next time? A court that fails to take the law seriously merits ridicule.
Sorry I cannot help but be cynical about the utility of amicus briefs submitted to this Supreme Court. Yes, they take their work seriously but they seem to view their work as advancing their personal and partisan preferences far more than caring about such mundane things as precedent, law, the Constitution, etc.
People should write amicus briefs with their intended audience in mind. Getting praise on Twitter but not writing in the idiom preferred by the Justices is bad lawyering.
Just read this brief in its entirety. And, please excuse me for saying this, but I don't believe you are the least bit sorry. Neither am I.
Hmm, accountability avoidance seems to have become quite the rage in right wing America.
"But they still produce an “opinion of the Court,” one that the current Court treats as having comparable precedential effects to rulings it hands down after plenary review."
Well, if you consider this Court's attitude towards precedent, that ought to amount to roughly nothing - if there were any consistency about it, which is clearly a counter-factual proposition.
Does Congress have any role or ability to reign in the court and its use of the shadow docket? Or does this require some type of constitutional reform?
I'm not an expert, but I believe Article 3, Section 2, Clause 2 allows Congress to limit the Court's appellate powers. "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
Does Villarreal have a chance to challenge the constitutionality of the Texas Penal Code they were charged with? [apparently Ann. §39.06(c)]
I read part of the 5th circuit second ruling and was surprised to read that Oldham, of all people, almost seeming to question if qualified immunity has gone too far. Note only that, he cited Thomas:
<<Although many have treated qualified immunity as a “one-size-fits-all doctrine,” Hoggard v. Rhodes, 141 S. Ct. 2421, 2421 (2021) (Thomas, J., respecting denial of certiorari), Justice Thomas has recently questioned whether the logic undergirding qualified immunity is equally implicated in all cases involving official conduct. Officers “exercise a wide range of responsibilities and functions.” Ibid. And courts “have never offered a satisfactory explanation” for why qualified immunity should apply the same way across the board. Id. at 2422. I share Justice Thomas’s concerns.>>
Which raises the question - if the "trend" continues, where will QI end up?
Will the SCOTUS eventually find a case to clarify things?
When it does, is it likely to use that chance to limit its ever growing scope? Or would that require a court with a different composition, which might drastically roll back QI?
Thanks for the newsletter!!
It's too bad the Court did not see fit to apply the the same cautious federal common law rule of not making things up to the question of Presidential immunity from criminal prosecution.
Personally, as a Vermont resident, I feel that anyone who wants to sit down in protest on the steps of the State House should be allowed to stay there unsupported until they die from exposure or dehydration. that's their constitutional right. And it is patently evident that your average police officer is capable of maiming a 150 pound woman engaged in passive nonviolent protest by dragging her across the lawn to a waiting cruiser in a wrist lock just as sure as I can break a roast chicken wing. Perhaps the need to resort to such means of applying excessive force is occasioned by the General Assemply's unwillingness to appropriate sufficient funds for an adequately staffed Capital police force or state police of sufficient strength and numbers to carry away a sack of potatoes. But hopefully, this summary reversal on petition for certiorari of the 2nd Circuit's finding of no legal error in the matter by the Federal Court for the District of Vermont will result in no permanent harm to anyone on remand. It is not clear from the article how deep in to those weeds the Court has ventured.
"takes six votes to agree to summary adjudication"
What if four grant cert and then five decide to rule without oral argument? Once they grant cert, can five accelerate the process?
Anyway, Congress should regulate the docket to limit the justices' ability to do what they did here. It basically involved itself in a narrow intracircuit matter. I set aside the broader need for reforming qualified immunity. Which should also be addressed.
Democrats need to gain control of the government & reform the courts. Court expansion should be used as a pressure tactic to, at the very least, obtain other reforms. Major changes are necessary.
I continue to be made aware by Professor Vladeck that some of my former, non-lawyer beliefs about the Supreme Court, which perhaps I had not even explicitly thought about, are incorrect. Specifically that all its key decisions emerge from the application of clear rules, not “customs,” that it does not rush to judgments that can then become in practice durable “precedents”, and Justices are cognitively consonant and consistent over time how and why they arrive at their judgments, and moreover it is clear who among them is on which side, agreeing with or dissenting from the majority. I was hoping that learning about and gaining a better understanding of how the legal sausage is made would allow me to feel more confident in the process, make outcomes more digestible, and calm my periods of outrage. There is a French proverb I have viewed skeptically as expressing a universal truth, "Tout comprendre, c'est tout pardonner", meaning "To understand everything is to forgive everything". In the context of this Supreme Court, a more appropriate saying would be: “To understand everything, is not to forgive,” or “Tout comprendre, c’est ne pas pardonner.”
Á propos availability of injunctive relief against First vs Fourth Amendment violations, the contrasting standards of Burns v Elrod (First) and Lyons (Fourth) seemingly play a key role.
In the Reed v. Goertz case, quibbling over when the clock starts on a statute of limitations for a Section 1983 procedural due process claim seems remarkably short-sighted and completely lacking in common sense and an intuitive sense of justice. When someone’s life is at stake, and an additional DNA test is all that is requested, it would seem that only an irresponsible lack of concern at best and a veiled, mean-spiritedness at worst could be the motivating factor for not requiring the circuit court to address the third constitutional objection.
It definitely shows the lack of humanity in our "justice" system. This ruling screams loudly, unfortunately it falls on deaf, elitist ears!
How does modern QI or even its original cases square with a case like Little v. Barreme? In Little, a Navy Captain was held to be personally liable for damages in seizing a ship pursuant to the President's orders (as Commander-in-Chief) but that order exceeded the authority granted by Congress. Under the modern framework, it would seem Captain Little couldn't have been held to be liable. He neither knew nor had reason to know he shouldn't follow the President's orders. Yet I don't believe Little has been overruled.
What probable cause is there for arresting someone if the act of doing so violates another Constitutional right?
Isn't qualified immunity based on the idea of sovereign immunity? In that case, can some of the "lack of clarity" the Extremes keep finding be corrected by legislation that explicitly addresses such conduct and waives Sovereign Immunity by act of Congress?