Wednesday Writs: Chief Justice Roberts All By Himself

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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37 Responses

  1. Avatar InMD
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    says:

    I’m probably in the absolute minority here but as repugnant as I find ‘free speech zones’ and the pathetic ideology behind them I agree with the CJ here. These battles need to be fought on the legislative front. It’s a public school after all.Report

    • Avatar Brandon Berg in reply to InMD
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      says:

      The whole point of having the Bill of Rights is that there are certain things that the legislature simply isn’t allowed to do. The boundaries of what those are is exactly the kind of question that should be left to the courts.

      Anyway, I could be wrong, but I don’t think that’s really what Roberts is saying. His main objection seems to be that the Supreme Court should only be ruling on concrete cases, not abstract questions. This seems kind of silly to me—why make people try to guess what’s Constitutional and what isn’t when you can just tell them how you’d rule in future cases?—but I haven’t really looked into the arguments for this position.Report

      • Avatar Philip H in reply to Brandon Berg
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        says:

        Roberts is first and foremost concerned about his legacy as Chief Justice, followed a close second by preserving his version of what SCOTUS should and shouldn’t be about. As we have seen numerous times in his court he’s generally loathe to set new precedents and equally loathe to stick to former ones that he thinks will move his legacy negatively. Seen through that lens its entirely unsurprising that he wouldn’t support proscriptively ruling.Report

      • Avatar InMD in reply to Brandon Berg
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        says:

        You’re misunderstanding me about the legislative solution. Public schools are established and funded by the states. There are only ‘free speech zones’ and the like at these schools because state governments tolerate them.

        As for the case and controversy requirement there isn’t enough room in a comments section to explain it. It comes from Article III of the constitution and there are cases interpreting it and its parameters, including why the court does not issue advisory opinions. However I will point out that the issue here wasn’t whether P had been wronged it was whether the claim was moot. And hey 8 out of 9 still said nominal damages were sufficient for it not to be.Report

  2. Avatar DensityDuck
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    says:

    “Roberts first points out that in addition to having no actual damages, the plaintiffs are no longer students at Gwinnett College, and the complained-of policy is no longer in effect.”

    So if you run out the clock on a legal action, you can prevail by default? Cool. “The plaintiff has filed a lawsuit against the Chicago Police Department for wrongful imprisonment because they grabbed him off the street and held him in jail for a night after a cop thought he was looking at her funny. However, plaintiff’s presence in the courtroom means that he is clearly no longer in prison, therefore he is clearly no longer wrongfully imprisoned! Defendant’s motion to dismiss is upheld.”Report

    • Avatar DensityDuck in reply to DensityDuck
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      says:

      Although it’s interesting to note that the Roberts court has made a large number of important judgements on the basis of “you can’t show actual damages therefore you have no case”, so I can see how Roberts would be very motivated to keep intact the notion that showing actual damages (and requesting specific restitution for same) would be an important part of any legal proceeding.Report

    • Avatar Kolohe in reply to DensityDuck
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      says:

      This more or less happened with the majority of suits against Trump in his capacity as President. E.g. for alleged violations of the emoluments clause.

      The suits were filed in the first year of the Trump admin, but by the time they had reached their way to the Supreme Court, it was past Jan 20 2021, and they were dismissed as moot.

      Which makes the timing of the decision in this particular suit, with it’s eight vote agreement, kinda curious. In hindsight, the various state AG and advocacy groups I guess should have included some nominal damage claimReport

    • Avatar Oscar Gordon in reply to DensityDuck
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      says:

      It does seem to leave open the whole, “Agents of the government can mess with you in significant ways, but as long as they stop, don’t leave marks, and make conciliatory gestures to update policy, it’s all good.”

      So, waterboarding is on!Report

      • Avatar CJColucci in reply to Oscar Gordon
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        says:

        Well, no. If you were waterboarded, you will have suffered emotional, and, likely, physical distress for which you can get money. Even if the waterboarders stopped, apologized, and promised never to do it again. If the plaintiffs in this case had alleged emotional distress for what had already been done to them and asked for money to compensate them for it, the case would clearly not be moot. But they didn’t ask for money. And since they were no longer students, they were no more entitled to injunctive relief against the college than, say, I am or you are. None of this is close to being legally controversial. So they had to argue that the nominal damages claim kept the case alive.Report

        • Avatar Oscar Gordon in reply to CJColucci
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          says:

          The issue I see is that the school was in the wrong, but they have a way to wiggle free. They can make sure the issue takes long enough to resolve that the students are no longer students, and they can alter policy. This makes the issue moot, except that there is nothing stopping the school from reinstating the policy as soon as things quiet down.

          I mean, rationally, getting slapped down once should be enough to convince the school that reinstating the policy is a bad idea, yet other schools have had similar free speech issues struck by the courts, and Gwinnet still held fast to theirs until it was challenged, so bad ideas seem awful sticky.

          Ergo, I think there is value in the court being a bit of an advice columnist if it helps firm up precedent.Report

          • Avatar CJColucci in reply to Oscar Gordon
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            says:

            You’re entitled to think that, and you may be right in some cosmic sense, but the Supreme disagrees with you, and has for over 200 years.Report

          • Avatar InMD in reply to Oscar Gordon
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            says:

            I think what you’re really arguing here is for a broader definition of harm, which the court may have implicitly accepted with this holding. That’s not the same as saying the court should just spout off about whatever whenever. Roberts is saying the nominal damages analysis sets the stage for a pretext to do what are in effect advisory opinions. Obviously the majority disagrees but I’d be shocked to hear any serious jurist call for those. Even if there wasn’t a constitutional restriction the court only has its legitimacy and the best way I can think to lose it would be to start issuing holdings on hypotheticals.Report

            • Avatar Oscar Gordon in reply to InMD
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              says:

              Except it’s not a hypothetical. It happened, no one disputes that. The fact that the school opted to roll it back, or that the students are no longer impacted doesn’t actually answer the question raised. Now, if asking for nominal damages is a way to make sure the question(s) get answered, I think that’s fine. It is a legal/constitutional question, after all, which is one of the reasons the SCOTUS exists, is it not?

              I mean, this isn’t a contract dispute where the plaintiff was paid the value of the contract, but still wants the court to rule on some esoteric clause that was under contention. Free speech zones on public property is a rather fundamental constitutional questionReport

              • Avatar InMD in reply to Oscar Gordon
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                says:

                That’s still just an argument that the issue is ripe, not that there should be advisory opinions.Report

              • Avatar Oscar Gordon in reply to InMD
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                says:

                Perhaps I am not understanding the ruling then. Taking in the comments downthread, the only thing the court ruled on was whether or not a claim for nominal damages can survive a challenge for mootness?

                Do I have that right?Report

              • Avatar CJColucci in reply to Oscar Gordon
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                says:

                Yes.Report

              • Avatar Jaybird in reply to Oscar Gordon
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                says:

                Pretty sure they don’t want to have the Supreme Court look at whether Free Speech Zones can be limited to the quad next to Armpit Of Campus.

                Pretty sure the Supreme Court doesn’t want to have to look at that either.Report

              • Avatar InMD in reply to Jaybird
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                says:

                The longstanding constitutional issue is that SCOTUS cannot look at that question in a vacuum. But if someone is harmed by it, meets the requirements for standing,.appeals all the way up etc., etc. then they can address it. I believe there is some case law on the subject though one of our 1st Amendment scholars would have to weigh in as to whether any is on point.Report

              • Avatar Jaybird in reply to InMD
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                says:

                Saying “you’re not being harmed by this policy anymore due to you graduating, therefore we don’t have to look at it even if the school is still doing it” strikes me as…

                Well.

                The Justice System ain’t covering itself in glory.Report

              • Avatar InMD in reply to Jaybird
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                says:

                I think you’re letting the particulars of this case (which let’s remember, is being allowed to proceed) lead you to some overly broad conclusions about the law. It’s not like SCOTUS and lower courts have never dealt with time, manner, place restrictions before. I also think it’s fair to assume they will continue to do so.Report

              • Avatar Jaybird in reply to InMD
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                says:

                Roberts didn’t think it should have.

                But, yes. I’m pleased that the other 8 weren’t… whatever the hell the term is for Roberts happens to be.Report

    • Avatar Brent F in reply to DensityDuck
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      says:

      this rule against advisory opinions in general is a mistake of the American system. They’re used elsewhere when there’s something important to be done in legally tricky areas so guidance on what the court thinks saves everyone a ton of doubt and misplaced effort.Report

  3. Avatar Jaybird
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    says:

    Deciding a moot case, Roberts says, puts the courts in the position of writing advisory opinions, which it is not to do. Uzuegbanum’s status or condition is not effected by an award of nominal damages, in Roberts’ opinion, and is nothing more than an affirmation of the plaintiff’s interpretation of the law. It is no remedy. He says the majority’s opinion turns federal courts into “advice columnists”.

    If the affirmation of the plaintiff’s interpretation of the law is, like, different than how the law is currently applied, that’s pretty important!

    I mean, we’ve already established that there is a non-zero number cases of people who engaged in prior restraint due to the misapplication of the law, right?Report

  4. Avatar Mike Schilling
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    says:

    L1: People who got what they asked for can sue for not getting it immediately, however people in prison because of fraudulent convictions cannot sue.Report

  5. Avatar Burt Likko
    Ignored
    says:

    L2 raises a deeply interesting issue. One that I think Ms. Hill is ultimately going to lose, because she was a public official at the time the pictures were taken and released.

    Change the hypo a bit, though, and we get into what to me is tougher territory. Let’s say the pictures were of then-Congresswoman Hill having a consensual sexual encounter with her then-husband, who was not a member of her staff.

    Or, what if they were taken before Hill began her Congressional campaign, but then the relationship ended amicably, and she subsequently hired the woman with whom she had been in an intimate relationship to be on campaign staff. (Note that we would probably have some difficulty accepting at face value, a claim that they later resumed the relationship, but only after Hill resigned.)

    It raises tough issues about when and how far we in the general public have an interest in the conduct and character of public officials, and therefore the extent of the First Amendment right of publishers to disseminate otherwise-unprotected images and information. People give up some measure of privacy when they voluntarily enter the public sphere, but not all of it.

    I don’t think there’s an easy or clean answer here.Report

  6. Avatar Marchmaine
    Ignored
    says:

    [L6] Cracks me up. Of course he does.Report

  7. Avatar Burt Likko
    Ignored
    says:

    L8: The Circuit Court of Appeals got it right. A waiver is a knowing, free relinquishment of a right. THEY WERE IN PRISON and they were told that if they didn’t sign that piece of paper, that’s where they would stay. The ENTIRE DAMN POINT OF PRISON is that you aren’t at your liberty to act as you please. Prison would be AWFUL. Damn near anyone would do damn near anything to get out of prison, which is kind of the very definition of “not acting freely.”Report

  8. Avatar Kazzy
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    says:

    “… speech which “disturbs the peace and/or comfort of persons” was prohibited in the free speech zones.”

    You keep using that word…Report

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