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Bold Justice: January 15, 2018

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Bold Justice: Overtime, military judges, and effective counsel

The Supreme Court will wrap up its January 2018 arguments calendar this week, and Bold Justice is ready. Cases this week will delve into simultaneous service of military judges, overtime pay requirements under the Fair Labor Standards Act, and Sixth Amendment issues. Let’s go! This week, the U.S. Supreme Court will hear arguments in four cases. We also expect the court to issue new orders.

Court news

  • On Monday, January 8, the court issued an opinion in Tharpe v. Sellers, sending the case back to the lower courts for reconsideration. The case was one of the court’s non-argued cases. In non-argued cases, the court grants an appeal but rules based only on the briefs—it does not hold any oral argument. In this case, Keith Tharpe, a black man, was convicted of murder and sentenced to death in 1991. In 1998, Tharpe’s attorneys obtained an affidavit from one of the jurors who sat on the jury that sentenced Tharpe to death. In the affidavit, the juror used racial slurs and stated that he had “wondered if black people even have souls.” Tharpe filed a post-conviction claim seeking to overturn his conviction based on that affidavit, alleging racial bias.
A state court refused to consider his claim, as did a federal district court. The state court concluded that juror’s vote in favor of the death penalty was not affected by the juror’s views on race. On appeal, the United States Court of Appeals for the 11th Circuit also refused to hear Tharpe’s claim. The Supreme Court sent Tharpe’s case back to the lower courts for reconsideration. Justices Thomas, Alito, and Gorsuch dissented from the court’s ruling.
  • On Friday, the United States Supreme Court agreed to hear 12 additional cases this term. Among those were two redistricting cases from Texas, which the court consolidated for argument. Those redistricting cases challenged Texas’ congressional map on the grounds of racial discrimination and violations of the Voting Rights Act. A panel of three federal judges had previously ruled that Texas’ Republican-drawn congressional map was the product of unconstitutional racial discrimination. The panel concluded that the creators had intentionally diluted the voting power of minority voters in the state.
With these two grants, redistricting cases are likely to be at the forefront of coverage of the court’s term. The Supreme Court is already considering other redistricting cases from Wisconsin and Maryland. Federal panels in North Carolina and Pennsylvania have also ruled on congressional maps in those states, and those cases could still make their way to the court this year—on Friday, North Carolina asked the Supreme Court to put the federal panel ruling in its case on hold. Responses to North Carolina’s request are due by January 17.

We #SCOTUS, so you don’t have to

As of publication today, the court has agreed to hear arguments in 67 cases so far this term; of those 67, the court has heard arguments in 30 cases. SCOTUS typically adds more cases throughout the term. In its previous term, SCOTUS heard arguments in 71 cases. The court will continue to hear arguments in cases this term through April 2018 and will continue to consider new appeals. The court is scheduled to hear arguments this week in the following four cases:

  • On Tuesday, the court will hear arguments in Hall v. Hal. This is a case about the timing of appeals in consolidated cases. Generally, a court of appeals may only hear an appeal after the lower court has entered a final judgment in the case. For the sake of efficiency, district courts will sometimes consolidate cases that concern the same parties, the same evidence, or similar claims. In 1990, the United States Supreme Court ruled that for consolidated cases arising in different districts, the appeals clock—the time at which a party has the right to appeal and an appellate court has jurisdiction over the appeal—begins at the time there is a single final judgment in one of the cases. However, that case did not address whether the same appellate jurisdiction rule applied when the consolidated cases arose in the same district.
Ethlyn Hall filed a lawsuit against her son and made her daughter the sole trustee of Ethlyn's trust. Following Ethlyn's death, her daughter took over the suit as personal representative of Ethlyn's estate. Ethlyn's son then filed suit against his sister. The two lawsuits were consolidated in the same district. In the estate's suit, the district court issued a final ruling, and the estate immediately appealed. On appeal, the United States Court of Appeals for the 3rd Circuit concluded it did not have jurisdiction over the case because a claim in Ethelyn's son's suit against his sister was still pending. The estate appealed to the United States Supreme Court.
  • On Tuesday, the court will also hear consolidated arguments in three cases: Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States. All three cases concern whether a judge's service on the United States Court of Military Commission Review disqualifies the judge from also serving on the Air Force Court of Criminal Appeals. The plaintiffs in all three cases are members of the military whose criminal cases were heard by a panel of the Air Force Court of Criminal Appeals. On all of their panels, at least one of the judges was also serving on the United States Court of Military Commission Review. The plaintiffs claim that the panels’ decisions in their cases should be invalidated because of that simultaneous service. The issue is whether simultaneous service on the CCA by a United States Court of Military Commission Review judge violates the long-held rule that active-duty military officers may not hold civilian posts without express approval. In two of the cases, the court will also consider whether the plaintiffs’ claims are moot on the grounds that the judge in question had not officially received his judicial commission at the time of the case.
  • On Wednesday, the court will hear arguments in Encino Motorcars LLC v. Navarro (2017), a case on its second go-around in the Supreme Court. The issue in this appeal is whether a car dealership's service advisors are exempt from the Fair Labor Standards Act's (FLSA's) overtime compensation requirements.Service advisors employed by a car dealership filed suit against the dealership, arguing that they were entitled to overtime pay under the FLSA. The car dealership argued that service advisors were exempt from the FLSA's overtime compensation requirements because they fell into the category of "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles" who were not covered by the FLSA.
The Ninth Circuit ruled in favor of the service advisors, concluding that they were non-exempt from the FLSA and therefore entitled to overtime compensation. Reviewing the statutory language, the Ninth Circuit noted, "The most natural reading of the exemption is that Congress exempted only three commonly understood job titles—automobile salesmen, partsmen, and mechanics." Although the court acknowledged that service advisors "can be considered to sell services...[,] even assuming that Congress intended a broad interpretation of the term 'salesman,' not every 'salesman' is exempt; the statute covers only those who are 'primarily engaged in selling or servicing automobiles.'" The dealership then appealed to the Supreme Court.
  • The court will also hear arguments Wednesday in McCoy v. Louisiana. The question in this case is whether a defendant's constitutional right to effective counsel is violated when his attorney concedes the defendant's guilt over the defendant's express objection. The Sixth Amendment to the United States Constitution guarantees the right to an attorney in criminal proceedings. The right to be represented by an attorney is called the right to effective counsel. This case concerns the meaning and parameters of effective counsel. Specifically, this case concerns whether a defendant's right to effective counsel is violated if his attorney concedes the defendant's guilt against the defendant's wishes.
Robert McCoy was charged with three counts of first-degree murder. After reviewing the case, his attorney concluded that the evidence against McCoy was overwhelming and that maintaining McCoy's innocence was not a useful strategy at trial. In the attorney's opinion, McCoy's best chance to avoid the death penalty was to admit to the crimes and convince the jury to find him guilty of lesser charges that did not carry the risk of the death penalty. McCoy strongly objected to his attorney's strategy, maintaining that he did not want the attorney to concede guilt. Instead, McCoy instructed his attorney that McCoy would take the stand during the trial and offer alibi evidence on his own behalf. The attorney disagreed with McCoy's plan. He believed both that conceding guilt was the best strategic decision for McCoy's defense and that McCoy would perjure himself on the stand.
Against McCoy's express instructions, his attorney conceded McCoy's guilt during the trial. McCoy was eventually found guilty and sentenced to death. He appealed on a number of grounds, including the claim that his attorney's decision to admit McCoy's guilt without McCoy's consent violated McCoy's constitutional right to effective assistance of counsel. On appeal, the Louisiana Supreme Court ruled that McCoy’s right to effective counsel had not been violated, and McCoy appealed to the U.S. Supreme Court.


The court also agreed to hear 12 additional cases, including the two consolidated Texas redistricting cases we discuss above:

  • Abbott v. Perez / Abbott v. Perez (consolidated)
  • Westerngeco LLC. v. Ion Geophysical Corp.
  • Lamar, Archer & Cofrin, LLP v. Appling
  • Animal Science Products v. Hebei Welcome
  • Lagos v. United States
  • Lucia v. SEC
  • Washington v. United States
  • Pereira v. Sessions
  • South Dakota v. Wayfair, Inc.
  • Wisconsin Central Ltd. v. United States
  • Chavez-Meza v. United States

We’ll have more information on those cases as the court schedules them for argument. In the meantime, keep an eye on our overview page for more updates on the court’s term.

SCOTUS trivia

The U.S. Supreme Court is usually the last career stop for the justices, and most appointees are well into their careers by the time they are appointed. Your question for the week: Who is the youngest currently serving Supreme Court justice?
a) Justice Sotomayor
b) Justice Gorsuch
c) Justice Kagan
d) Chief Justice Roberts
Choose an answer to find out!

Federal court action

Confirmations

The U.S. Senate confirmed four judicial nominees last week:

All four will take their seats upon receipt of their judicial commissions and taking their judicial oaths. As of January 14, 2018, the Senate has confirmed 23 of President Trump’s judicial nominees.

Nominations

President Trump did not announce any new nominations this week.

Vacancies

As of January 14, 2018, there were 145 vacancies in the federal judiciary out of 870 Article III life-term judicial positions. Of those 145 vacancies, 102 have had no nominee put forth as yet during President Trump’s administration. According to the Administrative Office of U.S. Courts and other outlets, an additional 24 judges have announced their intention to leave active judicial status during Trump’s first term. There are 43 pending nominations to life-term, Article III judicial positions. Check out the chart below to see vacancies of four years or more:

Federal court vacancies 1-15-2018.png

Committee action

This week, the Senate Judiciary Committee is not scheduled to meet to consider any additional nominations. Last week, the Committee met on Wednesday, January 10, to consider judicial nominees. The committee heard testimony from four nominees:

  • Kurt D. Engelhardt, nominated to a seat on the United States Circuit Judge For The Fifth Circuit
  • Barry W. Ashe, nominated to a seat on the United States District Judge For The Eastern District Of Louisiana
  • Howard C. Nielson, Jr., United States District Judge For The District Of Utah
  • James R. Sweeney II, United States District Judge For The Southern District Of Indiana

The committee has not yet voted on whether to send those four nominees to the Senate for a full confirmation vote. The committee also met on Thursday, January 11, for an executive meeting. During that meeting, the Committee voted by voice vote to advance one of President Trump’s judicial nominees for a full confirmation vote by the U.S Senate:

Love judicial nomination, confirmation, and vacancies information? We figured. Our monthly Federal Vacancy Count, which is published on the last Wednesday of every month, monitors all of the faces, places, and spaces moving in, moving out, and moving on in the federal judiciary. Need a daily fix? Our Federal Vacancy Warning System’s got you covered with continuing updates on the status of all federal judicial nominees. Or, if you prefer, we maintain a list of individuals nominated by President Trump.

A judge you oughta know

Every week, we at Ballotpedia want to highlight a federal judge or judicial nominee. We’re in our review of President Donald Trump’s list of 25 individuals from which he indicated he would choose nominees to fill Supreme Court vacancies. This week, let’s get to know Edward Mansfield, a justice on the Iowa Supreme Court and a judge you oughta know. Mansfield was appointed by Republican Governor Terry Branstad in 2011. Mansfield received his undergraduate degree from Harvard University in 1978 and his J.D. from Yale Law School in 1982.

Looking ahead

Here’s what we’re looking ahead to this week:

  • We expect the U.S. Supreme Court to hear arguments in four cases.
  • We expect the U.S. Supreme Court to issue orders and possibly opinions this week.

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Why Bold Justice?

Well, there’s a story behind it, and we’re happy to credit Justice Samuel Alito for the inspiration. Back in October of 2014, Justice Alito joined his fellow Supreme Court Yale Law alumni, Justices Clarence Thomas and Sonia Sotomayor, for a panel as part of the law school’s alumni weekend (video below). During the discussion, the moderator asked the audience if they could guess which of the three justices on the panel served as the inspiration for a coffee house to name one of their blends of coffee, Bold Justice. Justice Alito responded, “Obviously, it’s me.”

He went on to tell the story of how, during his days as a Third Circuit judge, his law clerks participated in a Newark, New Jersey, coffee shop’s year-long promotion wherein if customers sampled every blend for one year, the customers could then create and name a blend of coffee. Justice Alito described Bold Justice as a blend that was “designed for about three o’clock in the afternoon if you’re working and you’re starting to fall asleep, if you have this, it will jolt you awake.” A blend of courts and coffee: sounds perfect to us!

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