Supreme Court

SCOTUS should grant cert in Castro. Judicial review of Trump’s immigration detention regime depends on it

/ Karen Hoffmann / 2 Comments

cambria-fence

60 miles outside Philadelphia, on a bucolic country road in Berks County, PA, sits a brick building with a fenced-in yard fronting a line of trees. To look at it, you would never guess this place is the epicenter of the coming battles over judicial review of immigration detention in the United States.

Today the Supreme Court is conferencing to decide whether to grant a writ of certiorari in the case of Castro v. Department of Homeland Security.

Of the two dozen families who are the plaintiffs in Castro, about half have been released. But 14 families remain at Berks. They fled gender-based violence and threats to their lives in their home countries and sought asylum in the United States. After deeply flawed credible fear interviews and rubber-stamp affirmations by an immigration judge, they have languished in legal limbo for the past year and a half.

The Third Circuit decided that these families had no access to habeas corpus, the ability to seek judicial review of one’s detention – a basic right dating back to English common law. The Third Circuit’s reasoning was that these families had entered “surreptitiously” and were apprehended “near the border,” ergo they had no constitutional right to challenge their detention.

That’s plainly wrong. Even Guantánamo detainees, as law professor Steve Vladeck has pointed out over at Just Security, have been given more right to judicial review than the Berks families.

Vladeck called the ruling “deeply troubling” and pointed out that “it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. Reasonable minds may well disagree about the limits of immigration law, and the extent to which the Executive Order (and other U.S. immigration policies) run afoul of the Constitution. But the courts have to be the institution to settle those disputes; under Castro, the Executive Branch’s actions could theoretically be immune from such review… .”

Over at the Insightful Immigration Blog, David Isaacson writes:

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child. The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law. We can hope, however, that … the Supreme Court on certiorari, may restore it to them.

Signing on as amici in Castro are no less eminent legal scholars than Chemerinsky, who literally wrote the book on constitutional law; the American Bar Association; and IntLawGrrls’ own editor Jaya Ramji-Nogales and contributors Lindsay M. Harris and Sarah Paoletti, who conclude: “Particularly given that the procedural and substantive protections provided to asylum claimants are consistently flouted or ignored, safeguarding Petitioners’ access to habeas corpus is of exceptional importance.”

Since last fall, I’ve been working with the Berks families and their attorneys as a legal advocate. Berks may be fine for a short-term stay but to be stuck there for 600 days is a living nightmare. This week NBC published an in-depth investigative article on the facility. If you haven’t read it yet, please do.

I’d really like to let the families speak for themselves, but cameras aren’t allowed in Berks, nor is access to social media.

Here’s America’s sweetheart Tom Hanks recently discussing the Castro plaintiffs with lead attorney Lee Gelernt of the ACLU. The card made for him by the Berks kids says simply, “We want to be free.”

Finally, please watch this 9-year-old girl who was detained in Berks but freed in December after “only” a year. This is her heartfelt message on behalf of the families who still remain:

For the sake not only of the Castro plaintiffs, but all those who are and will be caught up in Trump’s expanded detention regime, let’s hope SCOTUS is listening.

Work On! U.S. Supreme Court Fellows program now accepting applications for 2015-2016 term (deadline: Nov. 14)

/ Karen Hoffmann / Leave a comment

The U.S. Supreme Court Fellows program is now accepting applications for the 2015-2016 term.  The fellowship is open to both junior and mid-career candidates. Four fellowships are awarded each year, and each fellowship is unique in its scope and focus.  Interested persons can read more about the program here:

Although the U.S. Supreme Court Fellows program has been in existence for forty years, very little is known about this discreet yet prestigious fellowship. This Article provides an in-depth look at the four placement opportunities (the Office of the Counselor to the Chief Justice of the United States, the Federal Judicial Center, the Administrative Office of the U.S. Courts and the U.S. Sentencing Commission), the application process and opportunities that can arise during and after the fellowship. Not only does the discussion outline the day-to-day activities of the fellows, it also describes recent changes to the program. The U.S. Supreme Court Fellows program is open to applicants from a wide variety of disciplines, including law, political science, history, public administration and criminology, and is particularly relevant to those with an interest in judicial administration, international and comparative law, criminal law and procedural law.

The application process is described at http://www.supremecourt.gov/fellows/default.aspx. Applications are due by November 14, 2014.

Papers sought for federal courts scholars’ workshop, October 2014 at Georgia Law

/ Diane Marie Amann / Leave a comment

?????Two of my colleagues, Professors Matthew I. Hall and Kent Barnett, have issued a call for papers for the 7th Annual Junior Faculty Federal Courts Workshop to be held October 10 and 11, 2014, here at the University of Georgia School of Law.

Invited to submit an abstract of a paper to be discussed at the workshop are all “untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics,” including persons “who do not currently hold a faculty appointment but expect to do so beginning in fall 2014.” The deadline for e-mailing an abstract to federalcourtsworkshop@gmail.com is June 20, 2014.

Junior scholars whose work-in-progress papers are accepted (following evaluation by a committee of past participants) will be partnered with senior scholars. The latter will moderate panels and comment and lead group discussions on the papers.  Confirmed senior scholars include Professors: Janet Cooper Alexander, Stanford Law; Anthony J. Bellia, Notre Dame Law; Heather Elliott, Alabama Law; Evan Lee, California-Hastings Law; Gillian Metzger, Columbia Law; James E. Pfander, Northwestern Law; Amanda Tyler, California-Berkeley; and Stephen I. Vladeck, American University Law.

Also welcomed to attend the free workshop are scholars who wish to read and comment on, but not themselves present, papers.

(Cross-posted from Diane Marie Amann)

Sharing in joy at annual WILIG luncheon

/ Diane Marie Amann / Leave a comment

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose, an IntLawGrrls contributor, and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” said Bensouda, another IntLawGrrls contributor. With reference to her current work, she added, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by IntLawGrrl Fionnuala Ní Aoláin, , IntLawGrrls and WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of foremother Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at Diane Marie Amann and ASIL Cables.)

In transnational human rights suit, Supreme Court shortens long arm of states

/ Diane Marie Amann / 1 Comment

2justicesEight Justices of the U.S. Supreme Court today cut short an effort to use a state long-arm statute to hold a multinational corporation accountable for human rights abuses.

The judgment in Daimler AG v. Bauman thus freed the defendant, a corporation whose subsidiary, Mercedes-Benz USA, “is the largest supplier of luxury vehicles to the California market,” from a 2004 lawsuit brought by 22 Argentinians. As Justice Ruth Bader Ginsburg (at right in photo) explained in her opinion for the Court,  plaintiffs alleged that Mercedes’ Argentina subsidiary had

collaborated with Argentinian state security forces to kidnap, detain, torture, and kill plaintiffs and their relatives during the military dictatorship in place there from 1976 through 1982, a period known as Argentina’s “Dirty War.”

The multi-count suit was on shaky footing even before the Court heard argument last October. The Court’s application of a presumption against extraterritorial jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (2013) impaired counts based on the Alien Tort Statute; similarly, the Court’s ruling in Mohamad v. Palestinian Authority (2012) that only human beings may be held liable under the Torture Victim Protection Act gutted counts based on that statute. Left were counts that looked to California’s long-arm statute, which permits a court to exercise personal jurisdiction provided that the state and federal constitutions so permit. It was this proviso that ended the case: Ginsburg wrote at footnote 20 that whether a court enjoyed general jurisdiction over a corporate defendant depended not only

‘on the magnitude of the defendant’s in-state contacts,’

but also on

a corporation’s activities in their entirety, nationwide and worldwide.

Applying this reasoning, the Court concluded that the named defendant lacked sufficient contacts with California, so that the Due Process Clause of the 14th Amendment to the U.S. Constitution forbade the exercise of “general” or “all-purpose” jurisdiction.

Ginsburg’s opinion for the Court further placed the holding within “the transnational context”: quoting a 2001 article by Friedrich K. Juenger (a since-departed and much-missed Cal-Davis colleague of mine), Ginsburg wrote that the Court’s withholding of jurisdiction jibed with practice in the European Union, and thus avoided “risks to international comity.”

The Court’s reasoning drew sharp criticism from Justice Sonia Sotomayor (above left). In a separate opinion sure to provoke much discussion among civil procedure profs, Sotomayor complained that

the Court decides this case on a ground that was neither argued nor passed on below,

and in so doing

unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries,

with the result of

shift[ing] the risk of loss from multinational corporates to the individuals harmed by their actions.

Notwithstanding her stated concern for the interests of individuals, even Sotomayor ruled against the plaintiffs in this case. She advanced a “far simpler ground,” which bore echo with the Court’s 2013 decision in Kiobel: “exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct,” she wrote, adding, in an apparent reference to the courts of Argentina, “that a more appropriate forum is available.”

Sotomayor’s concurrence in the judgment thus underscores the Court’s current reluctance to provide a human rights accountability forum like that sought by these plaintiffs.

(Cross-posted from Diane Marie Amann)

Same-sex marriage rulings let states decide

/ Diane Marie Amann / Leave a comment

contemplation of justiceHere, in a nutshell, are the marriage equality rulings issued just now by the U.S. Supreme Court, with links to the actual judgments:

► Judgment in United States v. Windsor: By a 5-4 vote, the Court held that equal protection and due process guarantees inherent in the Due Process Clause of the 5th Amendment to the Constitution forbid the federal government to privilege one class of married people over another, as the Defense of Marriage Act had required. The Act is thus unconstitutional as applied to same-sex couples married in states permitting such marriages. (Prior post.) Quote from opinion for the Court by Justice Anthony M. Kennedy (pp. 25-26):

‘DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.’

► Judgment in Hollingsworth v. Perry: By another 5-4 vote, the Court held that petitioners, private parties opposed to same-sex marriage who stepped in when the State of California would not, did not have standing. The petitioners had appealed a federal district court ruling that invalidated Proposition 8, the state constitutional provision banning gay marriage. Quote from opinion for the Court by Chief Justice John G. Roberts, Jr. (p. 17, citations omitted):

‘The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal,particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers.“Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial in nature,” and ensures that the Federal Judiciary respects “the proper — and properly limited — role of the courts in a democratic society.” States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.’

This ruling leaves in effect the lower court order allowing same-sex marriages in California. SCOTUS blog post on the question here.

(Cross-posted from Diane Marie Amann)

Much to love in Sotomayor’s “World”

/ Diane Marie Amann / Leave a comment

sotomayorMy Beloved World is a gem of a memoir. That’s not the least because of who wrote the 300-page volume released this past January. The author is 58-year-old Sonia Sotomayor, who’s served as a Justice of the U.S. Supreme Court since 2009. Her recollections display a candor rare in books by high-ranking public officials.

There is, for instance, her admission of childhood relief that the premature death of her alcoholic father might end conflict and bring stability to her household, as well as her account of the ignorance with which she and her high school sweetheart entered a marriage that would scarcely last through her college years. And there are moving reflections on her subsequent life as a single person. At page 232, Sotomayor tells how various factors, including the Type 1 diabetes with which she’s coped since age 7, influenced her decision not to become a parent:

‘My nephews are all the proof I could have needed of how emotionally satisfying adoption might have been. Still, there remained the fear that I might not be around long enough to raise a child to adulthood. Ultimately, the satisfaction of motherhood would be sacrificed, though I wouldn’t say it was sacrificed to career.’

At the heart of Beloved World are Sotomayor’s stories of growing up in the South Bronx in the ’60s, in a socially conservative, extended family. Many of her relatives had journeyed north from their native Puerto Rico. Family life swirled around their matriarch, Abuelita, the grandmother with a gift for giving love and a penchant for the late-night seance.

This was a world where Spanish dominated – except in the classrooms, where English-speaking nuns kept order by corporal punishment. Sotomayor writes frankly of the routine reality of beatings and fights, in homes and schools alike. She expresses approval that a recent visit back to Blessed Sacrament showed that teachers had adopted “a more nurturing approach since abandonment of the rod,” and then remarks,”Every generation has its own way of showing it cares.” (p. 88)

Her narrative resonates beyond the subculture it describes. Having grown up not many years later among Italian relatives in northwest Chicago, I found much in Beloved World that rang familiar: how acculturation pulled at homeland languages and lifestyles; how workplaces and parishes regulated life more directly than more distant governments; how diabetes or drinking or drugs or disability could bring shame and devastation; how some children managed to succeed in the larger world (often to their families’ bewilderment), while others found failure in every world they inhabited.

Sotomayor returns again and again to this last question of resilience – of how some children move forward even as others stumble. The book’s title hints at her answer: the foremost factor in success is love. Recalling her relationship with Abuelita, Sotomayor writes at page 16:

‘I have come to believe that in order to thrive, a child must have at least one adult in her life who shows her unconditional love, respect, and confidence.’

There is more, Sotomayor makes clear. Given the gift of “selfless love” (p. 254), the child must build on it, must learn to ask help from others. “[D]on’t be shy about making a teacher of any willing party who knows what he or she is doing,” she urges (p. 72). Sotomayor thus provides in Beloved World a string of inspiring stories about how and whom she asked, as well as the often-positive result of her asking for help. (Aspiring lawyers will welcome the consequent practice tips.)

All must be done in service of community. “There are no bystanders in this life,” Sotomayor insists (p.256); to the contrary:

‘Our humanity makes us each a part of something greater than ourselves.’

(Cross-posted from Diane Marie Amann)