Now the second, final argument this trip. (There are other arguments this week, some interesting enough to attend. But I ran out of time to prepare for them or attend them.) Holt v. Hobbs is much simpler than Heien v. North Carolina, because one side’s arguments are “almost preposterous”. So this post is (slightly) breezier.

This line was a bit different from the Heien line: more people attending for (this) argument, fewer people present simply for opening day. The line was possibly less talkative (and I still had briefs to read, although I never intended to read all twenty-one [!] of them), but there were still good discussions with local law students, the author of one of the amicus briefs (which I naturally read standing in line), and others. Good fun again.

Gregory Holt and his would-be beard

Gregory Holt is a Muslim inmate in the Arkansas prison system. (He actually goes by Abdul Maalik Muhammad now; Gregory Holt is his birth [legal?] name. News stories and legal discussion refer to him as Holt, and in some sense I want this in that corpus, so I use Holt here.) Holt interprets Islamic law to require he have a beard.

Allah’s Messenger said, “Cut the moustaches short and leave the beard (as it is).”

A small request. Reasonable? Quoting the ever-colorful Justice Scalia in oral argument, “Religious beliefs aren’t reasonable. I mean, religious beliefs are categorical. You know, it’s God tells you. It’s not a matter of being reasonable.” Reasonable or not, a beard isn’t an obviously dangerous request like, “My religion requires I carry a broadsword.” And as a conciliatory gesture Holt moderated his request to a half-inch beard.

Arkansas: no beards

Arkansas doesn’t permit prisoners to grow beards (except to the natural extent between twice-weekly shaves). There’s an exception for prisoners with medical conditions (typically burn victims), shaving only to 1/4″. But no religious exceptions.

Arkansas’s justifications are three. A beard could hide contraband. A bearded prisoner can shave to disguise himself, hindering rapid identification and perhaps aiding an escape (see The Fugitive). And it’s a hassle measuring half-inch beards on everyone.

The law’s requirements

Twenty-odd years ago, Holt would likely have been out of luck. Turner v. Safley permitted regulations “reasonably related to legitimate penological objectives”. And Justice Scalia’s Employment Division v. Smith says that as a constitutional matter, generally-applicable laws may burden religious exercise, with objectors having no recourse. It’d be an uphill slog getting past the no-beard rule.

But in the mid-1990s to 2000, Congress near-unanimously statutorily protected some exercises of religion, even against generally-applicable laws. (Lest it be thought this was protection specifically, or only, of Christian beliefs: the original motivating case was a Native American group that used a hallucinogen for sacramental purposes.) In particular Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA, usually “ruh-loo-pah”), stating:

No government shall impose a substantial burden on the religious exercise of [a prisoner], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

1. is in furtherance of a compelling governmental interest; and
2. is the least restrictive means of furthering that compelling governmental interest

And “religious exercise” is later defined as:

The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.

Now, prisons may regulate in pursuit of normal prison aims. But regulations can’t “substantial[ly] burden” a prisoner’s “religious exercise”, regardless how important the exercise is(n’t) in the prisoner’s belief system, even if the regulation is general and doesn’t target religion — unless the government demonstrates the regulation satisfies a “compelling interest” that can’t be addressed less restrictively. This phrasing comes from strict scrutiny: the strongest form of review American courts apply to laws. Unlike the Turner/Smith regime, these requirements have teeth.

Evaluating Arkansas’s no-beard rule applied to Holt

As a threshold matter, Holt must wish to engage in “religious exercise” that is “substantial[ly] burden[ed]”. Once Holt claims the belief, courts won’t second-guess it. They will consider whether the belief is sincere: no opportunistic exception requests for unwarranted benefits. But no one contests the sincerity of Holt’s beliefs. If Holt refuses to be shaved, he’ll suffer various disciplinary actions and bad consequences: “loss of privileges, punitive segregation, punitive work assignments, and loss of good-time credits”. Certainly a substantial burden.

Now Arkansas must demonstrate — with evidence, persuasively — both a compelling interest, and least restrictive means. Put another way, does Arkansas’s regulation pass strict scrutiny?

Arkansas’s claimed interests are “prison safety and security”. But a no-beards rule only marginally advances these goals, and “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Arkansas’s interest must be more specific: an interest specifically in no beards.

It’s hard to say Arkansas has a compelling interest when the rules in forty-odd prison systems nationwide, and various penal code recommendations, either impose no restrictions on beards among prisoners, or would allow Holt his 1/2″ beard. Arkansas is an outlier. And Arkansas’s medical exemption undermines the argument that no beards must apply universally (compelling interests often brook no exceptions). Similarly, Arkansas can’t use the least restrictive means when forty jurisdictions use even less restrictive means.

Arkansas might justify their policy through unique local experience. But Arkansas concedes “no example” of anyone hiding contraband in a beard. (With the “caveat” that “Just because we haven’t found the example doesn’t mean they aren’t there.” A strong argument!) Disguise arguments could be addressed by taking multiple pictures (as other systems do). And measuring the few inmates requesting religious exemptions wouldn’t be much harder than measuring medical-exception beards.

Arkansas could “demonstrate” strict scrutiny is satisfied by providing evidence of evaluation and reasoned rejection of other states’ policies. But Arkansas previously admitted it considered no other systems (eliciting an acerbic suggestion to try “the common practice of picking up the phone to call other prisons”).

Arkansas could argue that Arkansas’s system, that houses many prisoners in barracks and not separate cells, justifies no beards. But such systems exist elsewhere, and no beards applies in Arkansas’s non-barracks prisons.

In short, Arkansas has demonstrated neither a compelling interest, nor least restrictive means, and it has done so presenting no evidence. Ouch.

In lower courts

An obvious question: why must Holt fight this in court if he’s so obviously right? Basically, a few lower courts are giving far too much deference (a word found in legislative history but not in the statute) to the mere assertions of prison officials, without requiring them to “demonstrate” much of anything. The magistrate judge described officials’ claim that Holt might hide something in his half-inch beard as “almost preposterous” — just before deferring to those claims. Courts below the Supreme Court similarly gave too much deference to prison officials’ bare assertions unsupported by any data.

At the Supreme Court

One indicator of lopsidedness here is the brief count, and authors, on each side. Holt has seventeen other briefs on his side, representing a wide variety of interests: Jewish, Christian, Islamic, Hindu, Sikh, American Indian and Hawaiian, former prison wardens, former corrections officials, Americans United for Separation of Church and State (whose brief, incidentally, is interesting but quite surpassed by later events), sociologists, and the United States government (and others). The authors include a who’s-who of religious freedom organizations. Arkansas has one brief on its side: from eighteen states, who don’t defend Arkansas’s policy as much as try to preserve deference as an element to consider (presumably so those states’ prison systems can be run with a freer hand).

The Court accepted this case in unusual circumstances. Holt filed a hand-written petition requesting Supreme Court review, through a special system not requiring him to pay filing fees from non-existent income. Such petitions are almost never accepted. (Holt basically won the lottery. That said, when I read his brief after the case was accepted, the form was unusual, but the discussion and presentation seemed orthodox.) It’s pretty clear the Court accepted this case to lopsidedly, probably unanimously, overturn the Eighth Circuit. The Supreme Court doesn’t take cases to correct errors, but that’s what they’ll do here.

Oral argument

The argument questions roughly ran in largely three veins: pondering deference, drawing a line, and almost mocking Arkansas’s arguments. Holt’s counsel faced difficult questions, but not skeptical questions.

Deference

First, what does deference (if it even matters — the term appears only in legislative history, not in the law as enacted) look like in the context of strict scrutiny? These are somewhat contradictions in terms. Yet the Court somehow must make sense of this.

Line-drawing

Second, while beards are easy to decide, other issues (Sikh turbans that actually can conceal things, for example) will require different considerations. How can the Court provide general guidelines to address these situations? The Court doesn’t want to be in the business of reviewing every prison official’s (better-“demonstrated”) decisions. (Scalia bluntly put it this way: “Bear in mind I would not have enacted this statute, but there it is.” Recall he wrote Employment Division v. Smith, shutting off constitutional religious exemptions from generally-applicable laws. Something to remember any time Scalia’s stereotyped as reflexively pro-religion.) But Congress opened up that box, so courts have to live with it.

Almost mocking questions

Arkansas’s position is not easily defended. Not surprisingly, then, questions and comments almost made fun of Arkansas’s position. To the assertion that “Just because we haven’t found the example doesn’t mean they aren’t there”, Justice Breyer replied, “There are a lot of things we’ve never found that might be there and I’ll refrain from mentioning them. You see them on television, a lot of weird programs from time to time.” (Presumably referring to things like Sasquatch, the Loch Ness Monster, Ghost Hunters, and similar.) And later, Justice Alito proposed an alternative means of detecting beard contraband: “Why can’t the prison just…say comb your beard, and if there’s anything in there, if there’s a SIM card in there, or a revolver, or anything else you think ­­can be hidden in a half-inch beard…” (emphases added). Both lines made the audience erupt in laughter.

Why Arkansas fights

It’s unclear to me why Arkansas is still arguing. They won in lower courts. But once the Court granted the in forma pauperis petition, Arkansas should have folded. The law is too clearly against them, and this Court won’t give them a pass. Arkansans should be outraged that their state is wasting taxpayer money to defend this system. (And on the policy’s merits, outraged at the petty bureaucratic nonsense at best, and bigotry at worst, it represents.)

One plausible, potentially upsetting, explanation is provided by former prison wardens: “Political Considerations May Underlie Prison Officials’ Resistance to Accommodations of Religious Practices.” These wardens had been sued (and lost) in various cases cited in briefing, and they candidly admitted that their positions were partly attributable to “political realities”.

Conclusion

Arkansas will lose. The only remaining question is how. (And as before, if I’ve made any mistakes in this discussion, please point them out.)

It’s that time again: time to visit Washington, D.C. for more Supreme Court bobbleheads and oral arguments! I’m not going to try assembling the bobbleheads til I get home, so no pictures of them yet. Just (the first) oral argument for now.

Opening day!

Today’s argument was the first of the October 2014 term. This timing was of particular interest to me: I’ve been to arguments at other times of the year, but I figured opening day might be a little different. It was, although not significantly.

The public line outside included a few people who come every year to opening day arguments — with one person who’d been doing it for twenty-five years. (SCOTUS groupies! 😀 ) If I ever make it back for an opening day it’ll be interesting to see him again. Unlike past years I didn’t do much case-reading while waiting in line; too much interesting discussion and general camaraderie.

Inside the Court the difference was limited to Chief Justice Roberts announcing the close of the October 2013 session and the opening of the October 2014 session — essentially none, just another day at the office.

Now, a brief-ish recap of the case.

The facts of Heien v. North Carolina

One morning in 2009, two men, one of them Nicholas Heien, were driving through North Carolina. Sergeant Darisse noticed them as they passed by and found their behavior suspicious, so he started following them. Eventually Sergeant Darisse observed a reason to pull them over for violating a traffic law. (As a practical matter it’s impossible to drive for any length of time in perfect compliance with traffic law. But under Whren v. United States it’s perfectly acceptable to make “pretextual” stops, where the stop is really being made for some reason other than the immediate violation noticed.) The reason here was that Heien’s car had a malfunctioning stop lamp — that is, when the brakes were applied, only one stop lamp went on (and the other did not).

Sergeant Darisse and another officer asked the two men in the car a few questions, and they became more suspicious when the answers diverged. Sergeant Darisse asked if he could search the car. The driver said he’d have to ask Heien (as owner of the car); Heien said yes.

A brief interlude

Before we proceed further, I would like to emphasize something.

When an officer asks you if you consent to a search, you say NO.

If the officer is asking you, (at that moment) he needs your permission to do it. You do not have to grant permission. You will gain nothing if you grant consent. You’re not going to be on your way any faster; searching properly takes longer than not searching. And you never know what he might turn up. If it’s your vehicle, perhaps you had a passenger recently who left something in your car, that wouldn’t look good: drugs, drug paraphernalia, or a Justin Bieber CD. Practically, you can’t know what he’ll find. And even if you do: you’re not qualified to say what might be considered evidence of a crime, or even something that might be used against you in court for some other reason.

What if the cop promises it might get you moving faster, or tries to suggest you have nothing to hide, or whatever? Don’t believe him. Cops can legally lie to you. His verbal promise is worth the paper it’s printed on. Don’t talk to cops. My understanding is consent can’t be coerced or tricked. But good luck arguing you were tricked into it, given weasel words like “might” and it usually being your word against theirs.

Back to the facts: the result of the search

Of course (because otherwise we wouldn’t be hearing this case), the search found drugs. So now a traffic stop’s turned into a charge for trafficking cocaine. See what consenting to a search does? (Why would Heien have consented to a search, despite presumably knowing there were drugs in the car? Probably because he was legally intimidated or guilted into it. Again: Do Not Consent To Searches.)

In lower North Carolina courts

Heien challenged the stop on a number of grounds, only one relevant here: that the initial reason for the stop wasn’t valid. North Carolina law requires a working “stop lamp” (singular; emphasis added). Heien’s car had a working stop lamp. If the law is properly read that way, there was no valid reason for the initial seizure, and so by fruit of the poisonous tree the result of the search here can’t be admitted in court. (Glossing over a few details, but I’ll circle back to them.)

The trial court disagreed with Heien, but on appeal a North Carolina court of appeals agreed. The law required only one working stop lamp. And a law requiring vehicles “shall have all originally equipped rear lamps or the equivalent in good working order” didn’t apply, because stop lamps were not “rear lamps”. (“Surprising”, as the dissenters at the North Carolina Supreme Court later noted — but also fairly justified by careful reading of the statutory text.)

The court of appeals then concluded that Heien’s seizure was not permissible under the Fourth Amendment, which prohibits “unreasonable” seizures — and a seizure based on a misunderstanding of law is inherently not reasonable.

At the North Carolina Supreme Court

North Carolina didn’t contest the validity of the traffic law interpretation. Until North Carolina rewrites its laws (which, to be fair, weren’t originally buggy — back in the day only a single stop light wasn’t unusual, it’s just the law hasn’t been updated since 1955), at least in some parts of North Carolina you can legally drive with a broken stop lamp, if you have another that works. Instead North Carolina argued that the stop was a “reasonable” Fourth Amendment seizure: the officer made an “objectively reasonable” mistake of law, that had a “foothold” in the text (whatever that precisely means), which should be enough for the seizure to be reasonable.

Another interlude: good faith

Now an interesting quirk arises. Per United States v. Leon and subsequent precedents, the exclusionary rule that prevents admitting evidence obtained through a Fourth Amendment violation is riddled with holescontains a good faith exception for various cases where a violation occurs, but it’s deemed society’s interest in not ignoring the usually-obvious truth trumps the exclusionary rule’s benefits to individuals. So for Heien to get off, he has to argue that the Fourth Amendment was violated and that he’s entitled to the remedy of suppression and that no good faith exception applies.

Except that’s not the rule in North Carolina. North Carolina’s Supreme Court has interpreted some combination of the Fourth Amendment and its own constitution (I’m not 100% sure on the details) to contain no good faith exception. If the police violate the Fourth Amendment and you’re prosecuted under North Carolina law, evidence from that violation must be suppressed. (But see two paragraphs down.)

So Heien’s job is much easier. He needs a Fourth Amendment violation, but he doesn’t also need courts to feel “sorry enough” for him to suppress the evidence: North Carolina’s already done it for him.

Back to the North Carolina Supreme Court

North Carolina’s argument that the seizure, as an “objectively reasonable” mistake of law, was a valid Fourth Amendment seizure succeeded at the North Carolina Supreme Court by a 4-3 vote. (North Carolina’s not the first court to consider this question. Nine circuit courts have considered this question. Only one has adopted the North Carolina Supreme Court’s position.) Note carefully how the North Carolina Supreme Court in effect created an alternative version of the good faith exception, just without calling it one. (The dissenters specifically called them on this.) There’s increasing pushback in North Carolina against the lack of exception, culminating in 2011 in a statutory good faith exception and a legislative call for their court to reconsider the constitutional lack of such an exception. (I don’t know the extent to which that statute and the constitutional interpretation cause conflicts North Carolina courts will have to sort out. In any event the statutory exemption can’t apply retroactively to Heien.)

At the United States Supreme Court

The (United States) Supreme Court agreed to take the case to decide whether a cop misunderstanding the law, is enough to justify a search. It didn’t decide to take on the applicability of a good faith exception to such a mistake: only whether it was a Fourth Amendment violation.

Legal analysis

Both sides here actually have pretty good arguments from precedent for their positions. The Court has previously held that cops don’t have to predict that a law might later be held unconstitutional: they can enforce laws as they’re written, without worrying whether the laws are valid or not (“with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws”). That case has various logic in it that cuts strongly in favor of North Carolina, but also a few parts that arguably exclude mistakes of law from consideration. Another, more recent case, Ornelas v. United States cuts the other way. And various other cases lend support to each side.

There’s enough evidence in case law to support each side that it’s hard for me to fault a judge for coming down on either side here, on the basis of case law. I think that says something about the case law, to be honest.

Rather, what seems stronger to me ultimately is the common law presumption that “ignorance of the law is no excuse”. If you violate the law, you’re still guilty even if you didn’t know the law. Heien beats on this point pretty hard: that it’s unfair to punish someone for a law he didn’t know about, but it’s okay for a cop to stop someone for an offense that doesn’t actually exist because of what, ultimately, is ignorance of the law. North Carolina and the United States try to distinguish this by saying that a cop who breaks a law he doesn’t know about is held to it as much as a normal person. But this on-the-job, off-the-job wax-on, wax-off argument is way too cute for me.

Oral argument

Going into oral argument I didn’t have much sense how things might turn out. The common law rule seemed like it might speak to some at the Court. But the shining ideal of the exclusionary rule we’re all familiar with, has been steadily chipped away at for several decades. That chipping continues with the current Court. That general trend didn’t bode well for Heien.

I counted a few votes that looked fairly likely for Heien — Sotomayor pretty strongly, Ginsburg and Kagan to lesser extents. Roberts pushed about equally hard on each side in questioning. The rest seemed somewhat more in opposition to Heien than to North Carolina. Heien’s side got more pushback in oral argument than either North Carolina or the United States, all things considered. But the most striking part of argument was how it took multiple turns for the bizarre.

Justice Scalia asked why Heien wasn’t pushing for mistake of law triggering no good faith exception, in addition to it being a Fourth Amendment violation. This despite the presence of North Carolina’s non-recognition making the point irrelevant. He seemed to think the two questions were inseparable and had to be answered together. Which is a fair question — when deciding whether to review the case. But the Court took the case to answer only the one question, whether there was a Fourth Amendment violation, leaving the question of the remedy for such violation to another day. And the Court can’t really decide the question of remedy here, because it’s irrelevant to Heien and thus is not a “case or controversy” that the Court is empowered to decide here. I claim no knowledge of precedents, but it seems really unlikely to me (and Heien’s counsel had ready examples) that the Court hasn’t half-decided an issue like this before.

Meanwhile, Justice Alito wondered why North Carolina could get away without having a good faith exception: why weren’t they held to the federal rule? Which is an interesting question. But first, that question wasn’t accepted for argument, or argued below. And second, I thought Pruneyard Shopping Center v. Robins allowed states to interpret their constitutions (as North Carolina has done) to more strongly protect rights than federal courts would. (We might suppose from this that Justice Alito is rather a fan of the good faith exception [he said, understatedly, because Justice Alito is generally known to defend the police much more often than not].)

Finally, a few justices (Ginsburg, Alito, Kennedy) asked questions along the lines of, “If there was consent to search, given after the traffic stop had ended as a Fourth Amendment seizure, doesn’t that make the evidence admissible?” To which the clear answer, fruit of the poisonous tree (there is no chance to ask for consent to search, if there is no mistake-of-law stop), seemed so obvious to me as a decently-read non-lawyer (and to a couple other knowledgeable lawyers I talked to after argument), that clearly those justices were missing something really obvious. Or that law is less settled than I thought. (Which is entirely possible. But see the lawyers’ reactions.) But in any case it wasn’t the question presented, and wasn’t an argument North Carolina made in lower courts.

Predictions

Given the thoroughly strange turns in argument, I’m really unsure what’ll happen. The Court could dismiss the case as “improvidently granted”, because it’s not worth answering the Fourth Amendment question without also answering whether a good faith exception also applies, and they flat-out screwed up accepting the case. In which case, everyone wasted their time. 🙂 The Court could answer the original question as saying there is a Fourth Amendment violation, then “somehow” also manage to answer the good faith question that was never seriously argued before — despite it not being relevant because of North Carolina jurisprudence. Or they could vote for North Carolina. But there was enough random confusion that it’s hard to guess much about who might win.

So in the end…yeah, I dunno. I don’t see any reason why the Court can’t decide for Heien or for North Carolina, and maybe in conference the justices can collectively learn enough to see why that’s so. Some of them clearly weren’t there yet, at the start of the day. Where they go from there, also unclear. I’m guessing the odds are still against Heien, but I could easily be wrong.

Other random observations

I arrived in line early enough (about 05:20) to receive card #11, solidly within the first fifty people in the public line to get a seat. (I think there were only actually eight people in front of me, and a few numbers got skipped.) This was a much better showing than the last Fourth Amendment case I attended, where I arrived at something like 02:00 and wasn’t joined by anyone else til 06:15. Just ahead of me was the man who’s attended the last twenty-five opening days, and a couple friends of his.

In front of them was a rather unusual delegation: several people from the North Carolina police department that had seized Heien, including Sergeant Darisse himself! (North Carolina apparently only received six seats at oral argument, which presumably all went to the attorney general’s office. That’s surprisingly stingier than I’d have expected.) I imagine watching a case from that vantage point would be…kind of mind-boggling, actually. I asked about a picture, but occasional undercover work precluded it. 🙁 No idea whether Heien himself was at the Court — apparently he finished serving his sentence, or at least is out now, so he might have been there. Of course, as actual party (as opposed to merely the agent of a party) he presumably would have no trouble attending.

In other associated mild celebrity meetings, I got to meet Orin Kerr of the Volokh Conspiracy, and very briefly (I didn’t introduce myself, just was present as he and Orin briefly talked after leaving the Court) Jeffrey Fisher of Stanford, most recently known for having successfully argued Riley v. California, the cell phone search case from last term.

Conclusion

In the end it seems almost commonsense to me that when you’re breaking no law, and there’s no confusion that you might possibly have been breaking the law in its actual meaning, you should be safe against searches and seizures. (Note that a mistaken understanding of facts, in contrast to a mistaken understanding of the law, doesn’t invalidate a search or seizure. For example, suppose someone liked having “fun” playing a recording of a woman’s screams in his back yard. It should be totally justified for a cop to investigate that, even if the facts are that no domestic violence or other crime is being committed.) Ignorance of the law should apply equally to everyone, and not differently to a cop acting to enforce what turns out not to be the law.

But it’s a long line of cases that have lent support to the notion that searches and seizures not consistent with the law, as ultimately interpreted by the courts, can still produce fruits for investigations and prosecutions. And so eventually we reach the point where someone can be detained for not violating the law identified as the reason for the seizure, and it’s a legitimate question whether the seizure is reasonable or not.

I don’t agree with the retired Justice Stevens on a number of issues. But in this case, judging by his dissent in United States v. Leon, I wish he were still voting on the Court.

(And, as always — and particularly here, because Fourth Amendment law is very clearly not a thing quickly or easily understood, and I am still only scratching the surface in my knowledge of it — please point out any mistakes I’ve made in my discussion here. 🙂 )

(Just started reading? See part 1, part 2, part 3, part 4, part 5, and part 6.)

Back in April I visited Washington, D.C.. I visited partly to pick up some bobbleheads at an opportune time (just before Easter, and just before visiting family nearly as far eastward from California) and partly to attend Supreme Court oral arguments while I had the chance. The two cases I saw argued were Tapia v. United States and Microsoft v. i4i Limited Partnership. Shortly after I made some minor predictions for the cases, following up on an introduction of the cases and thoughts from oral argument. Let’s take a look at how the cases turned out, before the October 2011 term arguments start. (At this point on Monday, October 3, there’s probably already a line outside the Supreme Court building for the first arguments of the term.) If you need a refresher on the cases themselves, read my introductions noted above: for space reasons I won’t review much here.

Tapia v. United States

The Court unanimously ruled for Tapia, deciding that a judge may not consider the availability of rehabilitation programs when imposing a sentence of imprisonment or in choosing to lengthen a sentence.

The opinion

Justice Kagan wrote the opinion for a unanimous Court. Tapia had been sentenced to 51 months in prison, seemingly because the sentencing judge thought she should take part in a particular drug treatment program: a program she’d only be eligible for if she were in prison for a longer sentence. Justice Kagan’s concluded that a sentencing court can’t impose a prison term, and it can’t extend a prison term when it has decided to impose one, to foster a defendant’s rehabilitation.

Justice Kagan first briefly reviewed the history of the Sentencing Reform Act which enacted the relevant statutes (displaying almost professorial affection in noting that, “Aficionados of our sentencing decisions will recognize much of the story line.”). She concluded that the Act was intended to make sentencing more deterministic and consistent by eliminating much discretionary authority during sentencing and prior to release.

Justice Kagan next turned to the text of the relevant laws. She examined the text of 18 U.S.C. §3582(a), which reads:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term…shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

Justice Kagan concluded that, “§3582(a) tells courts that they should acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation.” While Justice Kagan noted that the text could have been more commanding — “thou shalt not”, say — she thought that Congress had nonetheless made itself clear. Justice Kagan also considered the argument that the “recognizing” clause applied only when determining a sentence, not when possibly lengthening it. She rejected this argument, noting that standard rules of grammar argued that a court considers the relevant factors both when deciding to imprison and when determining the length of imprisonment, and from this concluding that a court must “recognize” the inappropriateness of imprisonment for rehabilitation both when sentencing and when choosing a duration of imprisonment.

Justice Kagan also noted context supporting her interpretation. She led with 28 U.S.C. § 994(k), which I previously noted could shed light on the proper interpretation. She also noted the pointed absence of statutory authority for courts to ensure offenders participated in rehabilitation programs. (Tapia didn’t participate in the relevant rehab program because she wasn’t sent to the prison the judge recommended and because she wasn’t interested in the program.) Finally, she noted that those willing to consider legislative history would find support for her interpretation in the relevant Senate Report.

Justice Kagan next rejected arguments that the “rehabilitation model” which the SRA supplanted referred only to undue belief in “isolation and prison routine” causing the prisoner to reform. She called this reading “too narrow”, citing an essay which characterized the rehabilitation model more broadly. This was Part III, section B, if you’re interested in more detail — I’m not going to attempt to summarize any further than that.

Justice Kagan last noted that the sentencing judge may have improperly considered rehabilitation in determining the length of Tapia’s sentence. Thus the Court left open the possibility that the sentencing judge might not have done so. Finally, the Court sent the case back to the Ninth Circuit for further action.

The concurrence

Neither Justice Sotomayor nor Justice Alito was convinced that the sentencing judge actually did improperly sentence Tapia. Evidently unsatisfied by Justice Kagan’s noting that the sentencing judge only might have acted improperly, Justice Sotomayor wrote a concurrence, joined by Justice Alito, explaining why she thought the sentencing judge had not acted improperly. At the same time, she noted that the sentencing judge’s rationale was less than clear, and that she wasn’t completely certain that he hadn’t acted improperly. Thus both justices nonetheless joined Kagan’s opinion in full.

The outcome

None of this means that Tapia will necessarily get what she presumably wants: a shortened prison sentence. The Court reversed the judgment of the circuit court that upheld her sentence, and it remanded so that court would take a second look, but it didn’t specify the actual outcome. Justice Kagan’s opinion doesn’t conclude that the sentencing judge improperly lengthened Tapia’s sentence for the purpose of rehabilitation: it merely says that the judge may have done so. Justice Sotomayor’s concurrence, joined by Justice Alito, only further emphasizes this point. So on remand, the lower court might conclude that the sentencing judge didn’t improperly lengthen Tapia’s sentence to 51 months. Or it might not. Either way, Tapia’s done well so far: getting the Supreme Court to hear your case, and to rule in your favor, is no small feat.

Even if Tapia convinces the Ninth Circuit that the sentencing judge improperly lengthened her sentence, Tapia might be unsuccessful. Justice Kagan’s opinion concludes with, “[w]e leave it to the Court of Appeals to consider the effect of Tapia’s failure to object to the sentence when imposed.” So Tapia might have missed her chance to win that argument.

Thoughts

I’d gone into this case understanding it to be a nice concise demonstration of statutory interpretation, and I wasn’t mistaken. I wasn’t certain of the correct outcome on first reading the briefs, but §994(k) sealed it for me. It was nice to be vindicated in my thoughts on the case.

It’s easy to overread a case, picking out extremely nitpicky details and magnifying their importance. At the same time, a few details in Kagan’s opinion stuck out at me. First, in analyzing the statutory text, Kagan turned to the 1987 Random House dictionary for definitions. The Sentencing Reform Act was enacted in 1984, so the 1987 dictionary is contemporaneous. Second, Kagan prefaces the paragraph dealing with legislative history, “for those who consider legislative history useful”. The textualists on the bench will insist that the proper dictionary to interpret language is one contemporary with its writing, as a 1987 dictionary would usually be for a 1984 law. And Justice Scalia in particular rejects any reference to legislative history: he believes the law is what was passed, not what was not passed, as the aforementioned Senate Report was not. I think Kagan probably wrote as she did as gestures of comity to her fellow justices, such that everyone would be happy with the resulting opinion. Maybe that’s an overread, but I would guess it isn’t.

It’s also worth noting that this case was unanimous. Remember, a plurality to (more often) a majority of all Supreme Court decisions are unanimous. The Justices are not as fractious a bunch as you would believe from the cases and decisions that receive significant airplay.

Microsoft v. i4i

The Court unanimously (minus Chief Justice Roberts, who had recused himself apparently because his family owned Microsoft stock) ruled that the standard of proof for patent invalidity was clear and convincing evidence, not the lesser burden of merely a preponderance of the evidence. Further, it concluded that this standard was consistent both for evidence which the Patent and Trademark Office had reviewed, and for evidence which it had not reviewed.

Justice Sotomayor’s opinion for the Court

Justice Sotomayor wrote the opinion for all but Justice Thomas (more on him later). Her opinion relied on Justice Cardozo’s opinion in RCA v. Radio Engineering Laboratories, Inc.. Justice Cardozo in 1934 had described the standard of proof for finding invalidity as “clear and cogent evidence”. By the time the language at issue in Microsoft was added, Justice Sotomayor deemed this language to have become part of the common law (roughly: judge-made law, when some dividing line or another must be set for consistency but no laws have specified one). Moreover, she deemed Congress’s language to have used terms of art with well-known meanings to judges, which codified the “clear and convincing” standard. Thus until Congress says otherwise, “clear and convincing evidence” is the standard of proof for declaring a patent invalid.

Justice Sotomayor disagreed with the various narrow views Microsoft took of prior patent decisions, both at the Supreme Court and in lower courts, which would have set different standards of proof for certain forms of evidence. (Curiously, those forms happened to be the ones Microsoft was trying to use.) She said that even “squint[ing]” the Court couldn’t see qualifications of when clear and convincing would apply as the standard.

Justice Sotomayor also disagreed with Microsoft’s alternative argument that a reduced standard of proof applies to evidence not reviewed by the PTO. She thought that prior cases at the Court and elsewhere had consistently at most concluded that evidence reviewed by the PTO could be deemed to have “more weight” than evidence not seen by it.

Finally, Justice Sotomayor addressed the competing policy arguments of both parties: “We find ourselves in no position to judge the comparative force of these policy arguments.” Instead she said the ball was in Congress’s court: if a different standard of proof was to apply, it was up to Congress to enact it.

Justice Breyer’s concurrence

Justice Breyer, joined by Justices Scalia and Alito, wrote separately to emphasize that the clear and convincing standard of proof applied only to questions of fact, not to questions of law. What’s the difference? A jury will decide the facts of a case, but it won’t decide what the nature of the legal issues are in it, or how those issues map onto the facts. Those legal issues are determined by judges, consistent with statutory and common law, at least partly to ensure consistency in application. Quoting from Breyer’s concurrence (citations omitted) will probably illuminate the difference better than I can summarize it (or at least illuminate no worse):

Many claims of invalidity rest, however, not upon factual disputes, but upon how the law applies to facts as given. Do the given facts show that the product was previously “in public use”? Do they show that the invention was “nove[l]” and that it was “non-obvious”? Do they show that the patent applicant described his claims properly? Where the ultimate question of patent validity turns on the correct answer to legal questions—what these subsidiary legal standards mean or how they apply to the facts as given—today’s strict standard of proof has no application.

Justice Thomas’s concurrence in the judgment

Justice Thomas in his opinion agreed with the result, but he didn’t agree with the reasoning used to reach it. Unlike the other justices, he thought that when Congress said a patent should be “presumed valid”, that did not clearly indicate to judges that Congress intended to codify the clear and convincing standard. But since Congress had not specified a standard of proof, Justice Thomas concluded that the common law rule from Justice Cardozo in RCA applied. So in the end Justice Thomas held that the standard of proof of invalidity was clear and convincing evidence, but he reached it in a different manner.

The outcome

On the face of it, Microsoft losing here means that if they want to avoid a $300 million judgment, they’re going to need to try another argument in the lower courts. But since they’ve already gone through once, they’re mostly limited to whatever arguments they’ve already made, and preserved to be argued further. I don’t know how many that is, but at this point I’m guessing it’s pretty small. So Microsoft is likely out $300 million at this point, plus a bunch more for the legal costs of litigating this matter for as long, and as far, as they did.

Thoughts

This was another fun case to follow, although unlike Tapia it was much harder to follow, and it required more knowledge of the surrounding law to really understand it. Policy-wise, I tend to think it might be better if patents were easier to overturn. Thus for that reason I think a lower standard of proof might be a better thing, although it’s hard to be sure if such a change wouldn’t have other adverse effects negating that benefit. But as far as the actual law goes, and not what I wish (however uncertainly) might be the case, Microsoft seemed maybe to be stretching a little. (Maybe. It was hard to be sure given the extent of my experience with any of the relevant laws, cases, &c.) Looking at the opinions in retrospect, that intuition seems to have been right.

As far as the opinions go, I find something to like in all of them, to some degree or another. The “clear and cogent” language in the Cardozo opinion did seem fairly clear in explaining a standard of proof, if one assumed Microsoft’s narrow read of the conditions when it applied to be a stretch. All the justices agreed on that. Breyer’s opinion distinguishing questions of fact and law seemed pretty smart, too: given how complex this area of law seemed just trying to read up for one case, probably nobody would be very happy if questions of law got lumped in with questions of fact for juries. And I liked the way Justice Sotomayor brushed off all of the policy arguments both sides made (arguments so lopsidely unbalanced and cherry-picked that relying on either completely would be destructive to the ends of the patent system). Ideally courts should merely interpret the law, not make policy or choose amongst policies, and the legislative and executive branches should decide policy.

But Justice Thomas’s opinion, lumped in with the parts of Justice Sotomayor’s opinion with which he agreed, seems like the best reading to me, at least based on what I (think I) know. I didn’t really think the words “shall be presumed valid” clearly referred to a particular standard of proof such that they could be a term of art, as all the justices but Thomas would have. At this point, assuming I understand how the law works correctly in the absence of legislative action, reverting to the state of the matter as it was before — that is, Justice Cardozo’s position — seems the right move to me.

Again, that’s just how I’m reading the law. It’s not really what I want in the patent system, which I think could use a good number of changes to adapt to the modern world.

It’s also worth noting — again — that this case, too, was unanimous. I was a little surprised that both cases turned out that way, as my half-informed readings had made me think neither case was quite that straightforward. Then again, the Supreme Court never really gets easy cases, yet even still they’re frequently unanimous. So I shouldn’t be too surprised even in these particular cases.

Conclusion

If you haven’t done it already, I’d recommend taking a look at the actual opinions in these cases. Law has this stigma of being inscrutable. In various areas of law, it doubtless is just that. But in areas not densely technical, legal opinions (particularly higher-court opinions) can be surprisingly readable (once you condition yourself to skip over all the inline citations). Both cases weren’t so densely technical that an intelligent reader couldn’t follow them. Indeed, I’d say they were generally fairly readable. Give it a shot: you might be surprised what you can learn reading the occasional legal opinion. And when a news story breaks, you’ll get a much less colored view of it if you read it from the source, rather than merely read coverage of it.

(Just started reading? See part 1, part 2, part 3, and part 4.)

After much line-standing, it was now time to hear actual argument.

For a number of reasons, I’m not going to go into much detail. First, I was pretty sleep-deprived. While I did a reasonable job of concentrating on the arguments, my mind sometimes just wasn’t capable of keeping up with the discussion out of sheer exhaustion. This also means my memory of the arguments is spotty and may have forgotten particular interesting exchanges. Second, while I read petitioner/respondent briefs for both cases, quickly skimmed the United States’s briefs in both, and read a couple amicus briefs of particular interest in Microsoft v. i4i, I’m far from expert in either area of law, so anything I say isn’t going to be the best-informed commentary. Third, if you want full detail, you can always read transcripts and listen to audio (simultaneously, even, thanks to The Oyez Project) from the oral arguments for Tapia v. United States and for Microsoft v. i4i. (Count your blessings: until Chief Justice Roberts joined the Court in 2005, transcripts and audio weren’t released until the end of the term, around the end of June. The Court then started releasing transcripts shortly after argument. And until this year, with very rare exceptions, they didn’t release oral argument audio until the end of the term, whereas now it’s released at the end of the week the argument occurs.)

For the most part, then, I’ll limit discussion to the impressions that stuck with me. Due to lack of time I haven’t gone over the argument transcripts, so this is all raw recollection diluted by a week’s delay in scribing.

General thoughts

The justices sit in high-backed chairs that appear very solemn, rigid, and somber. They are that — when nobody’s sitting in them and testing them. It turns out the chairs recline quite considerably, which diminishes their impressiveness a bit. 🙂 Justice Thomas and Justice Scalia sit next to each other in this iteration of the Court (the chief justice sits in the center, and the remaining justices alternate sides in order of seniority, so they sat on opposite sides before Justice Kagan joined the Court), and they had a tendency to lean back so far in the chairs that the sense of dignity the chairs conveyed was rather disrupted. 🙂 Not that it really makes any difference, of course: they are who they are. Still, it was kind of funny to see that the chairs’ veneer of gravitas wasn’t as deep as the angle they reclined.

Justice Thomas is frequently noted as remaining unusually silent on the bench. At the moment he hasn’t spoken in oral argument in just over five years — to counsel making argument, that is. From time to time he and Scalia would turn their chairs and confer with each other, as a lawyer for one side or the other continued his argument, presumably discussing the case being argued. His involvement’s certainly not passive even if that involvement includes none with counsel making an argument. This is about what I’d read various places before going to argument.

Justice Ginsburg is definitely the most frail-looking justice. Even taking into account her physical position, she seemed to look downward at counsel more than appeared to be necessary, and she seemed to hunch over the presumed papers in front of her when asking questions. The other justices had a physical presence of sorts which Justice Ginsburg seemed to lack. (Again, not that it makes any real difference, she being who she is.)

Some people question the importance of oral argument, suggesting that the written briefs settle the issue, the justices have already made up their minds, and so on. Among the usual arguments against this is that the justices use argument as a sounding board to figure out what their fellow justices think and to in a sense passively-aggressively make their cases to each other. If that happened here, I didn’t have the Court-reading experience to see it, or perhaps these cases were simply not clear-cut enough for it to happen in any obvious way.

Tapia v. United States

Justice Sotomayor asked a number of questions, at various points in the argument, which essentially took the point of view of a district court judge tasked with sentencing. Her questions seemed to suggest that she thought judges should have sentencing discretion to consider rehabilitation programs for the defendant’s own good. She was a trial judge at one time, as I recall, and I found it interesting that, for the first time I can recall reading, (dare I say it?) empathy due to her past experience as a trial judge seemed to strongly affect her approach to a case. I also found it interesting because from what I can remember, historically her position has been generally pro-defendant, and (facially) this sympathy for the judge would run counter to that.

Justice Scalia, well known as an advocate of textualism, repeatedly questioned about how a judge could “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation” while lengthening a sentence to rehabilitate. As I recall he drew a laugh once for suggesting a judge could “recognize”…and then say he was going to give a longer sentence anyway. He seemed to find the statutory text pretty clear.

I have no strong memories of the questions and answers of the other justices (save Justice Thomas, who asked no questions), although I’m sure on reading the oral argument transcript more memories would spring to mind.

Microsoft v. i4i

The very first thing I noticed about this case was that, in the very brief recess between this case and Tapia, Chief Justice Roberts had disappeared. This was expected: he’d recused himself because, as I recall, his family owns Microsoft stock. At the same time his disappearance was so abrupt that I didn’t even see him leave, despite making half an effort to watch and see it happen (because I was wondering if the other justices would rearrange their seating around Justice Scalia, who acted as chief justice for the argument).

I found this argument more technical and peppered with citations than the previous one, which made it harder to follow. The justices spent some time talking about RCA v. Radio Engineering Laboratories, Inc., the opinion in which Justice Cardozo made perhaps the strongest statements supporting the clear and convincing standard of proof. It was more time than I’d have expected, given the other opinions that could have been discussed as well.

At one point one counsel cited an opinion made by then-Judge Alito when he had been judge in a lower (circuit, I think?) court. I’m not certain, but I suspect it was the same side that had also cited an opinion of his in their brief. I had to read briefs containing bald assertions that previous cases cut in exactly opposite directions, and skeptic that I was at the time, I found this good for a laugh when reading that brief. Justice Alito seemed to think similarly, as he immediately made a self-deprecating comment about how he wasn’t nearly as smart at the time, or something to that effect. However, I don’t remember thinking he was seriously hinting which way he was leaning in doing so.

When oral argument in Microsoft finished (Microsoft’s counsel still had rebuttal time, as I noticed because the white light on the podium had turned on [indicating five minutes remaining] but the red light [indicating no time] had not), my mind felt overwhelmed with what I’d seen and heard. I knew I’d followed less than half of what had been said, yet at the same time I knew I’d basically achieved my goal: to know enough to be dangerous while hearing the arguments.

Next time, reading the Court’s tea leaves.