Professors Offer Supreme Court Preview

By: Luke Charette, 1L

Contributing Writer

Fall typically means apple picking, playoff baseball, pumpkin spice lattes, and, most importantly, the opening of the Supreme Court, which is set to begin hearing cases on October 2nd.  During W&L Law’s annual Supreme Court Preview, Professors Todd Peppers, Margaret Hu, David Bruck, Hernandez Stroud, and Mark Drumbl helped bring clarity to the issues the Court will tackle on the fall docket.

Leading off the Preview, Professor Stroud proclaimed that “Every time you open the newspaper it feels like one big constitutional law exam.” As an example, Professor Stroud spoke about Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, set to be the marquee case of the fall SCOTUS term. Whether based on the merits of the case or simply because it is about cake is yet to be seen.  That case involves cake shop owner John Kelly, who has been willing to sell any of his bakery and cake products to anyone who wishes to purchase them unless doing so would violate his sincerely held religious beliefs, and, according to Professor Stroud, the “principal claim is one of compelled speech.” Stroud thinks the case will be a close call, but, luckily for us, we won’t have to wait long to find out if a cake can speak. Whatever the result, Professor Stroud praised the Justices for their creativity, craftiness, and passionate about the Constitution.

How are cases chosen by the Supreme Court?  Professor Peppers’ hypothesizes that it is by measuring the stack of amici curiae briefs that get carted into the justices’ offices. Whatever the reason, according to Professor Peppers, each case has a roughly 1% chance of getting heard.

Photography by: Gregory J. Scott | (Left to Right) Professors Stroud, Hu, Bruck, and Drumbl presented at the 2017 Supreme Court term preview.

Photography by: Gregory J. Scott | (Left to Right) Professors Stroud, Hu, Bruck, and Drumbl presented at the 2017 Supreme Court term preview.

Professor Bruck is excited to see Ayestas v. Davis make it to the Court, even if it is over 22-years-old.  A death penalty case involving habeas corpus procedure at both the state and federal level, Ayestas should motivate you to pay attention in professional responsibility class.  Professor Bruck explained that the trial attorney did a terrible job, and then the state appeals attorney did an equally poor job. Even when Ayestas’s case got to the federal level, there was an inadequate amount of investigative work done on his behalf.  Realizing these errors, the federal appeals attorney tried to get funding to have a new and more thorough investigation done but was denied by the court.  The court said “substantial need” is required for the funding and that there was nothing that could be unearthed that would help Ayestas.  So, the Supreme Court will address what must be shown to receive funding in federal court to get an investigation accomplished that should have been done at the state level.  If any of this left your head spinning, Professor Bruck says sorry.

I’m afraid it is nearly impossible to communicate in written word the excitement of professor Drumbl for Jesner v. Arab Bank to be on the October docket.  His beloved 33-word Alien Tort Statute (ATS) “punches way above its weight category.”  Although it lived in relative silence for 200 years, it is alive and well now, and Drumbl is excited that the whole world will now be able to see that the ATS really matters!  Jesner is a case about transnational patterns of financing terrorism, something the United States is obviously very interested in weighing in on. The plaintiffs are surviving aliens and family members of persons injured by terrorist attacks against Israeli citizens overseas. They have alleged that Arab Bank received $2M in funds and laundered and funneled them to terrorist groups all over the world.  The ATS brings people like these plaintiffs to our courts and gives original jurisdiction to the federal court in a tort-based lawsuit if those harms are in violation of customary international law. What will be particularly important to the Supreme Court is that the plaintiffs allege that Arab Bank accomplished these acts utilizing their New York office. Drumbl does believe that Arab Bank has a good argument though. They state that corporations cannot be liable for international crimes like this and that the ATS does not apply to corporations at all, pointing out that there is no international court or tribunal that has jurisdiction over corporations, only persons.  Drumbl believes that argument is true but doesn’t know exactly what the Court will do with it.  What he does know though is that “corporations with rights and no responsibilities would be unjust.”

In the consolidated Ninth Circuit case, Hawaii v. Trump, and the Fourth Circuit case, International Refugee Assistance Project v. Trump, the Court is set to take on a host of convoluted issues, including whether Section 2(c) of Trump’s Executive Order is justiciable, whether it violates the Establishment Clause, whether the global injunction is overbroad, and whether the challenges to Section 2(c) are moot anyways because of a 90-day time frame listed in the Executive Order.  Professor Hu stated that the issue of extreme vetting measures is not going to be a part of this case. Without a doubt, we have all heard an incredible amount about this case and the political battles surrounding it.  Professor Hu brought a unique presentation to the SCOTUS preview, asking us to consider the broader policy holdings behind such a widespread ban.  She discussed monumental moments in our history such as Korematsu v. United States, (executive order forcing Japanese Americans into internment camps during WW2), and Jim Crow laws that while they said one thing on paper, were clearly meant to prevent African Americans from voting.  Professor Hu is concerned that we are beginning to engage in a new era of Jim Crow type vetting.  One that while not based on race based categories, is deploying a similar algorithm where discrimination is aimed at an entire people group justified by the fear of national security (A mix of Jim Crow and Korematsu policies).  Fortunately, we will find out exactly what this case is going to end up resting on soon after they hear it on October 10th.  Until the cases are heard, we can thank the professors for their informative and entertaining preview of what looks to be a fascinating SCOTUS season.

Categories: Features