In this instance, Judge Posner lied

Let’s face it, I don’t belong in the same sentence as Judge Richard Posner. I regard Posner as a giant. I respect him and wish he sat on the Supreme Court. He is known for speaking the raw truth, and I highly respect him for that trait. But he is wrong as hell to write in Slate* that the Chief Justice’s dissent in the gay marriage case was heartless and furthered the cause of bigotry. It is a damnable lie.

The Chief Justice ends his dissent in the gay marriage case with these words:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Obergefell v. Hodges,  576 U. S. ____ (2015), slip op. at p. 29 of dissent.

Those are not the words of a cold and heartless and bigoted man. Indeed, if anything the dissent reflects a sadness that the Chief Justice cannot join the majority.**

Paul Barrett said it best when trying to understand the Chief Justice and his views in the Obamacare and gay marriage cases:

On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What’s with this guy?

Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren’t difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.

Paul Barrett, Why John Roberts Upheld Obamacare but Dissented on Gay Marriage
He sides with liberals one day, conservatives the next. What gives?, Bloomberg Business (June 26, 2015).

No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.


*H/T How Appealing.

**I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.

“Angering Conservatives and Liberals, Chief Justice John Roberts Defends Steady Restraint”

Please read this insightful piece from Adam Liptak in the New York Times.*

download (3)The Chief Justice is fast becoming my hero.

He may well be the best Chief Justice since Chief Justice John Marshall.





* H/T Howard Bashman at How Appealing.

Thinly sliced baloney, Wonder Bread, concurring opinions and the Supreme Court

imagesI like my baloney thinly sliced.

220px-Strong_bodiesThat is not true, however, when, as a district judge, I read and try to apply the opinions of the Supreme Court that are the functional equivalent of thinly sliced baloney held together, not by two pieces of Wonder Bread, but by concurring opinions. To put the matter less figuratively, like Chief Justice Roberts,* I believe the Justices would do us all a favor by speaking with one voice as much as possible even if that means sublimating their individual views to some reasonable degree. In other words, I wish there were far fewer concurring opinions.**

Take a gander at these disturbing statistics taken from the superb 2015 article***written by Professor Cass Sunstein entitled Unanimity and Disagreement On The Supreme Court, 100 Cornell L. Rev. 769 (2015), **** to wit:

[F]rom 1801 through 1940, the overall percentage of cases with at least one concurring opinion was 1.7%, and the median Term had a rate of 1.4%. Remarkably, there was no Term in which the rate of concurrences was as high as 15%, and the concurrence rate exceeded 10% during only five Terms (1805, 1837, 1842, 1847, 1856). In fact, thirty-six years had no concurrences at all, and in seventy-two years (more than half the total), the number of concurrences was one or fewer.

Id. at 776 (footnotes omitted).

From 1941 to the present, the picture is altogether different. . . . The rate of concurrences grew to 11% in 1941 and then to 16% in 1942. From that point, it has never fallen below 10%, and indeed it has been below 20% in only two years (1943 and 1944).  The overall rate of concurrences is 37%, and in the median Term, it is 38%.

Id. at 780 (footnotes omitted).

Sunstein does not come to a definite conclusion as to why things changed so dramatically in 1941. If I read the professor correctly, he believes a combination of factors contributed. Two factors were apparently the most important. First, there was the willingness of Chief Justice Stone to tolerate and even encourage differing views that contributed to the dramatic shift away from majority opinions unadorned by the frosting of concurring opinions. And, more importantly, the rise of the “academic Justice” appears to have been the main driver for many Justices to equate opinion writing with dueling law review articles. Consider Professor Sunstein’s emphasis on this “key point”:

The key point here is that the new Justices, above all Frankfurter, favored a more academic atmosphere, in which Justices would develop competing views and ultimately feel free to express them. Consider Frankfurter’s remarkable words, circulated to one of his colleagues:

Just because we agree in the result . . . and because no immediately important public issue is involved by our different approaches in reaching the same legal result, it is at once interesting and profitable to discuss the underlying jurisprudential problem. And so I venture to make some observations on your opinion, I hope in the same spirit and for the same academic purpose as I would were I writing a piece as a professor in the Harvard Law Review.

In a Memorandum for the Conference, Frankfurter wrote that while “Unanimity is an appealing abstraction,” it is also true that “a single Court statement on important constitutional issues and other aspects of public law is bound to smother differences that in the interests of candor and of the best interest of the Court ought to be express.”

Id. at 792-793.

In my view, Frankfurther (and others like him, such as Professor Sunstein) are mistaken when they assert that more “law review articles” in the form of competiting opinions in the same case arriving at the same conclusion, but taking different paths, is a good thing. On the contrary, I think it is a bad thing.

Consider a very recent example of case where concurring opinions abound, and, to my way of thinking, do very little except to cause unnecessary confusion while no doubt launching a plethora of law review articles that will be read by a few elites with too much time on their hands. The case is Williams-Yulee v. Florida State Bar, No. 13-1499 (April 29, 2015)(holding that “many . . . States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech. . . .We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”)

Pretty straight forward, right? Judges aren’t politicians even when they run for a judicial office, so Florida can keep them from personally soliciting money in order to promote an ethical judiciary in substance and in appearance.

OK, now consider this. ROBERTS, C. J., delivered the opinion of the Court, except as to Part II. BREYER, SOTOMAYOR, and KAGAN, JJ., joined that opinion in full, and GINSBURG, J., joined except as to Part II. BREYER, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined as to Part II. (That is, Justice Breyer concurred on his own, and concurred in Ginsburg’s concurrence but only as to part of it.)

The great number of concurring opinions, most of which resemble thinly slice baloney, do nothing but confuse federal trial judges and federal practitioners who care far less about law review articles than they do about the real cases in which Supreme Court opinions must be applied. In short, the explosion of concurring opinions proves that many of the Justices have forgotten who are the main consumers of the Court’s work product.


*Jeffrey Rosen, Roberts’s Rules, The Atlantic (2007) (“Throughout its history, Roberts argues convincingly, the Court has best served itself—and the nation—when its individual justices have been willing to subordinate their own agendas in the interest of building judicial consensus and institutional legitimacy. Whether he will be able to resurrect John Marshall’s vision in a polarized, unbuttoned, and personality-driven age remains to be seen. But his ultimate success will depend not only on his colleagues but also on his own temperament and character. Roberts approvingly quoted the observation of Chief Justice Charles Evans Hughes that ‘Marshall’s preeminence was due to the fact that he was John Marshall.’ If Roberts succeeds, his success will be due to the fact that he is John Roberts.”)

**This post does not address the utility or propriety of dissenting opinions. That is an entirely different package of baloney.

***Unfortunately, the article sits behind a pay wall for now.

****Professor Sunstein and I disagree about the contempt I generally hold for concurring opinions. The brilliant Sunstein concludes his article this way: “It is tempting to lament the post-1941 period and to suggest that the old norm promoted credibility and legitimacy, helped stabilize the law, and increased the likelihood of minimalist rulings. No one should deny that if the Court is persistently fragmented, and if the fragmentation occurs along political grounds, some people will lose faith in it–especially if their preferred views are consistently rejected. In any particular historical period, an analysis of the costs and benefits of internal division may argue for an increase in self-silencing. We have seen, however, that the arguments in favor of higher levels of consensus rest on fragile empirical foundations. The post-1941 norm cannot be shown to compromise the Court’s role in American government, or to disserve the constitutional order.”

Chief Justice Roberts and a crafty “solution” to the gay marriage issue

ph64150_lgAfter listening to the oral arguments in the gay marriage case, I offer the following speculation about a reasonably likely outcome:

1. Chief Justice Roberts writes an opinion on question one finding that a state is not required to allow gay couples to marry within that state. He convinces Kennedy that not enough time has passed to enshrine gay marriage into the pantheon of Constitutional rights, and we don’t want a repeat of Roe.

2. The Chief writes an opinion on question two finding that State X must recognize a gay marriage that was lawfully entered into in State Y. Here the Chief relies upon long-standing conflict of law rules.

“Splitting the difference” in this way can arguably be seen as preserving the Court’s legitimacy in the face of arguments that it is merely another partisan political branch of the government and not a real court. But what do I know?


The Chief Justice Reports: The Supreme Court to go digital in 2016 and other information of interest

The Chief Justice has issued his annual report. He announced that the Supreme Court will go to a digital filing system in about a year. Be still my heart! While the digital filing system will still require paper submissions, a silly and unnecessary requirement, the Chief Justice clearly recognizes the importance of adopting a digital platform for the sake of transparency.  Why the Supreme Court will apparently have a filing system that is different from CM/ECF puzzles me. I wonder why the Court thinks it necessary to go it alone. Will the Court’s system be able to “talk” to the CM/ECF system maintained by the Courts of Appeal?

By the way: Mr. Chief Justice, can uploading audio and video recordings of oral arguments to your new system be far behind? As the Borg says, resistance is futile!

Fair Use claim.

There are other interesting bits of information in the report including the Chief’s wry discussion of pneumatics. The entire report, including the Appendix dealing with filing numbers, deserves your attention. So, I reproduce it below.

EMBARGOED until 6 p.m. E.S.T.

December 31, 2014 (No wires, TV, radio, Internet, or other formats before 6 p.m. E.S.T.)

For further information, contact the Public Information Office


2014 Year-End Report on the Federal Judiciary

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics! The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

News of this dawning era was slow to reach the Supreme Court. It was not until 1931 that the Marshal of the Court proposed installing a pneumatic tube system in the Courtroom for the benefit of the press.

Architect Cass Gilbert incorporated that technology into the design of the

Court’s current building, concealing the gray metal tubes behind mahogany desks and beneath the marble floor.

When the Court opened the doors of its new Courtroom in 1935, it also revised its procedure for issuing decisions. Under the new “hand- down” protocol, immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions.

For thirty-six years, virtually all of the Court’s decisions reached the press through those portals. A notable exception was the Court’s 1954 decision in Brown v. Board of Education. Chief Justice Warren made a point of delaying delivery of his short opinion until he had read it in full in open Court. But not even things gray can stay, and the venerable steel hardware ultimately outlived its usefulness. In 1968, John P. MacKenzie, the Supreme Court reporter for the Washington Post, described the Court’s process of transmitting decisions as “perhaps the most primitive . . . in the entire communications industry.” The Court’s pneumatic age ended in 1971, when Chief Justice Burger authorized the removal of the pneumatic

tube system at the same time that he introduced the Court’s familiar curved bench.

The Washington Post’s celebration of the marvels of pneumatics, followed by the Supreme Court’s belated embrace and overdue abandonment of a pneumatic conveyance system, illustrates two tenets about technology and the courts, one obvious and the other less so. First, the ceaseless growth of knowledge in a free society produces novel and beneficial innovations that are nonetheless bound for obsolescence from the moment they launch. No one should be surprised that the same surge of creativity that pushed courts from quills to hot-metal type will inevitably propel them past laser printers and HTML files as new technologies continue to emerge. Second, and perhaps less evidently, the courts will often choose to be late to the harvest of American ingenuity. Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations. In this year-end report, I would like to describe progress the courts have made in taking advantage of information

technology, recognizing that the courts will always be prudent whenever it comes to embracing the “next big thing.”

Article III of the Constitution specifies the distinctive role of the federal courts, which sets the judiciary apart from other private and public institutions. Article III invests the federal courts with a strictly limited power, and responsibility, to decide prescribed categories of “cases” and “controversies.” Under our constitutional scheme, the courts are neutral arbiters of concrete disputes that rely on parties with genuine grievances to initiate the process and frame the issues for decision. The courts’ passive and circumscribed role directly affects how courts deploy information technology. The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.

As one example, the courts have integrated computer-assisted legal research into their case resolution process. Judges and clerks once spent countless hours in the law library, poring through law books and indices just to find the law. They now have access to extensive legal databases and can quickly locate relevant authority through search commands on desktop computers, tablets, and mobile devices. The federal judiciary has likewise modernized courtrooms to take advantage of technological innovations in

exchanging information and ideas. Attorneys can rely on computer-assisted graphics, video, and other technological aids to introduce evidence and facilitate communications with judges and juries. But perhaps most important, the courts have deployed new technologies to automate the filing, acceptance, and retrieval of the vast inflow of litigation documents that reach the courts every day. Throughout the country, clerks’ offices have revolutionized case docketing and administration through electronic case filing and case management—known within the federal courts as “CM/ECF.”

True, in today’s high-tech world, the idea of CM/ECF may seem to some mundane. In the realm of computer science, electronic case filing cannot rival the dazzling design technologies that empower engineers, or even the vivid gaming technologies that entice adolescents and the young-at- heart. Nevertheless, CM/ECF is vitally important to the cause of justice because it can make the courts more accessible, and more affordable, to a diverse body of litigants, drawn from every corner of society, who often enter the courthouse reluctantly, apprehensively, and only as a last resort.

As members of the legal profession know, the basic concept of CM/ECF is simply stated: A litigant, through a lawyer or as a

self-represented party, can file documents using the Internet by logging onto

the system, entering basic information about the case, uploading the document for filing, and submitting it to the court. But the nationwide implementation of CM/ECF—which has restructured operations of the entire federal court system—was no modest feat. The federal judiciary began design of the architecture in the 1990s and began implementation in 2001.

CM/ECF currently contains, in aggregate, more than one billion retrievable documents spread among the 13 courts of appeals, 94 district courts,

90 bankruptcy courts, and other specialized tribunals. More than 600,000 attorneys have filed case documents using CM/ECF, and they currently file electronically more than 2.5 million documents each month.

But this system is not limited to attorneys. By logging onto the Public Access to Court Electronic Records (PACER) system, and paying a modest user fee—in many cases, no fee—members of the public from Alaska to Florida can instantly access and review federal court filings located in courthouses across the Nation. PACER has enabled thousands of reporters, academics, and members of the public to find court records in a way that would have been impossible before the advent of CM/ECF.

The Administrative Office of the United States Courts is currently in the midst of developing its “Next Generation” CM/ECF system, which will increase the functionalities of the system for both bench and bar. For

instance, the enhanced system includes a “central sign-on” feature that will allow court users and attorneys to file and retrieve information in any federal court using the same login and password, greatly simplifying access to the system. Future development efforts will provide automatic calendaring notices to interested parties that will improve access to court proceedings while minimizing scheduling conflicts. Other new features are designed to increase efficiency and ease of use, saving time for judges, court staff, and other system users.

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit

documents only on paper, and Court personnel will scan and upload those documents to the system for public access. The Court will provide more information about the details of the system, including the process for attorneys to register as authorized filers, in the coming months.

These new systems are important steps forward. Indeed, the federal judiciary’s CM/ECF system was pioneering technology when it was introduced, and it remains the premier model among court systems around the world for electronic case management. Nevertheless, the federal courts, including the Supreme Court, must often introduce new technologies at a more measured pace than other institutions, especially those in private industry. They will sometimes seem more guarded in adopting cutting-edge innovations, and for good reason, considering some of the concerns that the judiciary must consider in deploying new technologies.

For instance, the federal courts, like other government institutions, are subject to the federal procurement process, which understandably sacrifices speed in favor of fair procedures for commercial hardware and software vendors to compete for the government’s business. Courts are likewise subject to the federal appropriation process. Congress faces the difficult task of developing a budget for the entire government, and legitimate

disagreements over funding priorities can complicate the planning of nationwide computer system upgrades and roll-outs for the judiciary.

The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most tech- savvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office. When deploying CM/ECF, the judiciary must make sure that its operating instructions are clear, its applications and dashboards are intuitive, and its systems are compatible with a broad range of consumer hardware and software. Unlike commercial enterprises, the courts cannot decide to serve only the most technically-capable or well-equipped segments of the public.

Indeed, the courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.

The courts also have important security concerns that must be satisfied before new systems go live and continuously throughout their operational life. Litigation often involves sensitive matters: Criminal prosecutions, bankruptcy petitions, malpractice suits, discrimination cases, and patent disputes may all lead to the collection of confidential information that should be shielded from public view to protect the safety of witnesses,

the privacy of litigants, and the integrity of the adjudicatory process. Courts understandably proceed cautiously in introducing new information technology systems until they have fairly considered how to keep the information contained therein secure from foreign and domestic hackers, whose motives may range from fishing for secrets to discrediting the government or impairing court operations.

The federal judiciary also faces implementation challenges in light of its conscious decision to maintain a decentralized system of organization.

For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities, and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations.

When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF, it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally. These deliberations ensure that the implementation of a national system takes due account of local experience, including both successes and failures.

Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Like other centuries-old institutions, courts may have practices that seem archaic and inefficient— and some are. But others rest on traditions that embody intangible wisdom. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.

As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally. Innovations will come and go, but the judiciary will continue to make steady progress in employing new technology to provide litigants with fair and efficient access to the courts.

The sculptures that adorn the Supreme Court provide a reminder of that resolve, a resolve that has outlived the Court’s long-gone pneumatic tube system. The often overlooked east pediment, installed on the rear portion of the building, features images of historic lawgivers and other symbolic figures. It is flanked by imagery drawn from a well-known fable: A hare on one side sprints in full extension for the finish line, while a tortoise on the other slowly plods along. Perhaps to remind us of which animal won that famous race, Cass Gilbert placed at the bases of the Court’s exterior

lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.

I am privileged and honored to be in a position to thank all of the judges, court staff, and judicial personnel throughout the Nation for their continued excellence and dedication. I wish to extend a special thanks to District Judge John Bates, who will step down on January 1, 2015, as Director of the Administrative Office of the United States Courts and return to his duties as a United States District Judge for the District of Columbia. The judiciary has benefited enormously from his wise counsel, strong leadership, and steadfast commitment to the cause of justice. I am grateful for his service.

Best wishes to all in the New Year.

Appendix Workload of the Courts

In 2014, caseloads held steady in the U.S. district courts and probation offices, but decreased in the U.S. appellate courts, bankruptcy courts, and pretrial services system. Total filings for civil cases and criminal defendants in the district courts grew less than one percent to 376,536, with civil cases increasing four percent while filings from criminal defendants decreased 11 percent. The number of persons under post-conviction supervision rose nearly one percent to 132,858. Filings in the regional courts of appeals fell three percent to 54,988. Cases opened in the pretrial services system declined eight percent to 100,068. Petitions filed in the bankruptcy courts dropped 13 percent to 963,739.

The Supreme Court of the United States

The total number of cases filed in the Supreme Court decreased from 7,509 filings in the 2012 Term to 7,376 filings in the 2013 Term, a decrease of 1.77 percent. The number of cases filed in the Court’s in forma pauperis docket decreased from 6,005 filings in the 2012 Term to 5,808 filings in the 2013 Term, a 3.28 percent decrease. The number of cases filed in the Court’s paid docket increased from 1,504 filings in the 2012 Term to 1,568 filings in the 2013 Term, a 4.26 percent increase. During the 2013 Term,

79 cases were argued and 77 were disposed of in 67 signed opinions, compared to 77 cases argued and 76 disposed of in 73 signed opinions in the 2012 Term. The Court also issued six per curiam decisions during the 2013 Term in cases that were not argued.

The Federal Courts of Appeals

In the regional courts of appeals, filings decreased three percent to 54,988. Appeals involving pro se litigants, which constituted 51 percent of filings, declined three percent. Total criminal appeals fell eight percent.

Appeals of administrative agency decisions dropped 16 percent. Bankruptcy appeals fell 14 percent. Total civil appeals increased one percent.

The Federal District Courts

Civil case filings in the U.S. district courts rose four percent to 295,310. Cases involving diversity of citizenship (i.e., disputes between citizens of different states) increased 13 percent, mainly because of growth in personal injury and product liability filings.

Cases filed with the United States as defendant fell five percent, mostly because of reductions in prisoner petitions and Social Security cases. Filings with the United States as plaintiff declined 14 percent as cases involving contracts and cases involving forfeitures and penalties decreased.

Filings for criminal defendants (including those transferred from other districts) dropped 11 percent to 81,226. Excluding transfers, fewer defendant filings were reported for all types of major offenses. Defendants charged with drug crimes declined 14 percent. Defendants prosecuted for immigration violations fell eight percent, with the southwestern border districts accounting for 77 percent of national immigration defendant filings.

Defendants accused of property offenses (including fraud) decreased 11 percent. Reductions also occurred in defendants charged with firearms and explosives crimes, sex offenses, traffic offenses, and violent crimes.

The Bankruptcy Courts

Filings of bankruptcy petitions decreased 13 percent to 963,739.

Fewer petitions were filed in all bankruptcy courts but one (filings rose three percent in the District of Puerto Rico). Consumer (i.e., non-business) petitions declined 13 percent, and business petitions dropped 19 percent.

Bankruptcy petitions fell 15 percent under Chapter 7, 20 percent under Chapter 11, and nine percent under Chapter 13.

After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect, a steep reduction in bankruptcy petition filings occurred. Filings thereafter rose from 2007 to 2010, but have fallen in each of the last

four years. The total for 2014 is 40 percent below the total for 2010, and the lowest total since 2007.

The Federal Probation and Pretrial Services System

The 132,858 persons under post-conviction supervision on

September 30, 2014, was nearly one percent above the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions grew two percent to 111,585 and amounted to 84 percent of all persons under supervision.

Cases opened in the pretrial services system in 2014, including pretrial diversion cases, decreased eight percent to 100,068.


This weekend, in flyover country, the humanity and civility of Supreme Court Justices was on full display–and that is a wonderful thing

Photo credit: NATI HARNIK/The Associated Press

Photo credit: Nati Harnik/The Associated Press. Chief Justice Roberts and Chief Judge Bill Riley of the Eighth Circuit. Chief Judge Riley sits on the Executive Committee of the Judicial Conference of the United States and is highly regarded nationally.  He and I went to law school together and we have long been friends. He is a great guy.

Chief Justice John Roberts spoke at the University of Nebraska College of Law in Lincoln, Nebraska on Friday, and then he attended the barn burner of a game on Saturday night where the Huskers defeated Miami. See here. At roughly the same time, Justice Clarence Thomas spoke in Tyler, Texas, prompting editorial praise: “When U.S. Supreme Court Associate Justice Clarence Thomas spoke at The University of Texas at Tyler, he spoke softly. He spoke without rancor, without partisanship and without demonizing his opponents.”

If you read the news coverage of these events you will see that the Justices each took pains to distinguish the Third Branch from the political branches of government. A reader of that coverage would, unless he or she was a terrible cynic, come to realize that the Supreme Court is radically different from the Executive and Legislative branches of government both in terms of the quality of the decision makers and how they do their work.

The Justices are brilliant and serious people. Despite their substantive differences, they like each other. They are humble despite their accomplishments. They are funny in a wry and self-deprecating manner. They honestly believe that none of them are partisans. They like football and steak just like many of us do. They also don’t mind a beer or two. While they are happy to be liked, they don’t campaign for public acclaim or acceptance. Every decision they make is accompanied by a reasoned analysis, rather than political mumbo jumbo.

When the Justices take time to come to the sticks and speak quietly about their work, they do enormous good for the institution of the Supreme Court. Here’s hoping that they continue to see more tumbleweed in the years to come.

Photo credit: My Way. This foreign blogger who traveled across the United States by car added, "I see my first ever tumbleweed in Nebraska, that's all I have to say about Nebraska."

Photo credit: My Way. This young English blogger who traveled across the United States by car added, “I see my first ever tumbleweed in Nebraska, that’s all I have to say about Nebraska.” If he had cared about American history and the opening of the West, this highway would have taken him to the Homestead National Monument of America. The dismissive English blogger even got the Highway number wrong. He was on Highway 136, not 163.



A bench slap portends trouble in paradise

This post is about politics within the federal judiciary. It also about pecking order within the hierarchy of the federal judiciary. While I don’t care a bit about the substantive issue, the dispute I am about describe is fascinating because it has the potential of setting up a battle of judicial titans and I am a voyeur. While not in so many words, one power within the federal judiciary has publicly called out another power within the federal judiciary by essentially asking, “Who in the hell do you think you are?”

Judge John Bates is a district judge who sat in the District of Columbia. Judge Bates is highly respected by Chief Justice Roberts. The Chief put Judge Bates on the foreign surveillance court (FISA) and later selected him as the Director of the Administrative Office of the United States Courts. Judge Alex Kozinski is the Chief Judge of the Ninth Circuit, which has far more judges than any other Circuit, and as such is a member of the Judicial Conference of the United States. Under the direction of the Chief Justice, the Judicial Conference of the United States is the policy making arm of the judiciary. A district judge and the chief judge from each Circuit comprise the voting membership of the Judicial Conference. Judge Bates is the secretary to the Judicial Conference. “The Judicial Conference also supervises the Director of the Administrative Office of the U.S. Courts in the performance of his duties as the administrative officer of the courts of the United States under 28 U.S.C. § 604.” Id.

Thanks to Howard Bashman, my source for everything, I learned yesterday that:

“Chief Judge Kozinski’s ‘Serious Doubts’ About Judge Bates’s FISA Reform Letters”: Steve Vladeck has this post today at the “Just Security” blog. You can view the letter from the Ninth Circuit‘s chief judge at this link.
Posted at 09:33 AM by Howard Bashman

Here’s a brief summary of the dispute:

  • Bates sent the Chairman of the Senate Judiciary committee a letter about the USA FREEDOM Act–the surveillance reform proposal that, among other things, would create a more adversarial process within the FISA Court.  A fair reading of the letter indicates that Bates was speaking for the federal judiciary.
  • Kozinski sent the Chairman of the Senate Judiciary Committee a letter. A fair reading of the letter indicates that Kozinski does not think that Bates can speak for the federal judiciary and Kozinski makes absolutely clear that Bates does not speak for him. According to Kozinski, the Judicial Conference of the United States had not considered the issues addressed in Bates’ letter. Kozinski notes that Bates did not provide Kozinski (and presumably other members of the Judicial Conference) with copies of correspondence on this issue.
  • Bates had earlier written to Senator Diane Feinstein, Chair of the Select Committee on Intelligence, the following explaining why the Judicial Conference had not been consulted:

Traditionally, the views of the Judiciary on legislative matters are expressed through the Judicial Conference of the United States, for which I serve as Secretary. However, because the matters at issue here relate to special expertise and experience of only a small number of judges on two specialized courts, the Conference has not at this time been engaged to deliberate on them. In my capacity as Director of the Administrative Office of the United States Courts, I have responsibility for facilitating the administration of the federal courts and, furthermore, the Chief Justice of the United States has requested that I act as a liaison for the Judiciary on matters concerning the Foreign Intelligence Surveillance Act (FISA). In considering such matters, I benefit from having served as Presiding Judge of the Foreign Intelligence Surveillance Court (FISC).

One thing is clear. Bates has been “bench slapped” by Kozinski, and there is “trouble in paradise.”  Of course, feel free to select and mix your own metaphors. No matter how one expresses it, this dispute is extraordinary (and perhaps unsettling) for those who “are inside baseball.”


Bad news for the Justices (and the rest of us)

As I have written before, I don’t like the idea of “term limiting” the Justices. I have even provided a “top ten” list of the ways to address the polarization problem without term limits. Now, with a tip of the hat to Howard Bashman, I see that Norm Ornstein, writing in the Atlantic, has concluded that: “The best solution to the increasingly politicized and unseasoned Court is to limit justices to 18-year terms.” Mr. Ornstein’s opinions matter in Washington.

While it is cheeky almost beyond imagining, I remind the Chief Justice that he once told Jeffrey Rosen, writing in the Atlantic, about the importance of the Court speaking with one voice. Rosen provided this cutline in January of 2007: “In an exclusive interview, Chief Justice John Roberts says that if the Supreme Court is to maintain legitimacy, its justices must start acting more like colleagues and less like prima donnas.

He added that:

In Roberts’s view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5–4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

Roberts suggested that the temperament of a chief justice can be as important as judicial philosophy in determining his success or failure.  . . . .

I will be dead and buried before term limits, once imposed upon the Justices, “trickle down” to lowly Article III district judges, but it becomes inevitable once imposed at the top. Kopf’s cry to the Gods (and the Chief): Don’t make me roll over in my grave.


Did Chief Justice Roberts crib from Justice Jackson?

In the title of this blog, I refer, as Chief Justice John Roberts did in his confirmation hearing, to a judge as an “umpire.”  It turns out that Chief Justice Roberts was not the first Justice to have had such a thought. Justice Robert Jackson expressed a similar sentiment in 1951:

These men [Learned and Augustus Hand] found their highest satisfaction in judicial work. It fulfilled their every ambition. They put all they had into it—they have not shirked even its drudgery. They wrote their opinions with no appeal for applause and sought only to merit the ultimate approval of their profession. They have not been looking over their shoulders to see whom they please. They have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one—the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.

Robert H. Jackson, Why Learned and Augustus Hand Became Great (December 13, 1951) (speech before the American Bar Association) (emphasis added by italics).

Chief Justice Roberts clerked for Justice William Rehnquist, who, of course, later became Chief Justice. Rehnquist clerked for Justice Jackson during the 1952–1953 term.

The law is like a never-ending river. That comforts me.


PS Many thanks to Daniel H. Borinsky for the tip.

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