Talking about the Supreme Court on a podcast

I recently spoke about the Supreme Court with Jeff Lewis and Tim Kowal on their California Appellate Law Podcast. It’s the podcast’s episode 53.

We talked about all sorts of Supreme Court topics, including the Guardianship of Saul H. (2022) 13 Cal.5th 827 case that I briefed and argued (see here), possible reasons for Chief Justice Tani Cantil-Sakauye’s decision to retire, the decline in the court’s productivity (see here), the Chief’s strong stand against immigration arrests at state courthouses under the former president’s administration (see here), how the Chief sometimes assigns herself to author opinions in controversial cases (see here), criticism of the court’s failure to explain its denials of some of former Governor Jerry Brown’s clemency recommendation requests (see here), criticism of Governor Gavin Newsom choice to appoint instead of nominate Judge Kelli Evans to be an associate justice (see here), and what we might expect from the court under the leadership of a Chief Justice Patricia Guerrero (see here).

Ninth Circuit affirms denial of habeas relief for California death row inmate

In Ochoa v. Davis, the Ninth Circuit yesterday rejected a condemned prisoner’s bid for habeas corpus relief. The California Supreme Court had affirmed the prisoner’s conviction and death sentence for two 1990 murders (People v. Ochoa (2001) 26 Cal.4th 398, overruled in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14) and denied state habeas petitions in 2002 and 2010.

The federal panel affirmed the district court’s denial of Ochoa’s habeas petition by applying a standard of review highly deferential to the Supreme Court’s rulings. It found four claims to be unconvincing: that some prospective jurors were improperly disqualified because of qualms about the death penalty, defense counsel was ineffective in not preventing those jurors from being excused for cause, counsel was ineffective during the trial’s penalty phase in failing to present mitigating evidence and in failing to investigate and attack aggravation evidence, and a death sentence is unconstitutional because of Ochoa’s intellectual disability.

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.


“From the bench, an ‘impotent silence’ ”

Yale student group honors Justice Kruger

Ines Chomnalez reports in the Yale News that Yale Law Women+ presented Justice Leondra Kruger with its annual Alumni Achievement Award. The student organization’s mission is “to advance the status of women and traditionally underrepresented gender identities at Yale Law School and in the legal profession at large.” The group says “[t]he award specifically recognizes alumni who demonstrate valor, wisdom, and compassion.”

Past award recipients include Anita Hill, Stacey Abrams, Marian Wright Edelman, Sonia Sotomayor, and Hillary Clinton.

Optional in-person arguments start next month [Updated]

The Supreme Court today issued an order announcing the return of in-person oral arguments next month, but counsel will have the option — and, under some circumstances, the duty — to appear remotely. Counsel have not been physically present in the court since April 2020, when the court began requiring appearances by video or telephone conference. (Here, here, and here.)

Under the order, an attorney can present their argument remotely as long as they inform the court and opposing counsel of that choice on a revised appearance form within seven days after the argument is scheduled. A remote argument can be arranged later if counsel cannot appear in person because of “extraordinary cause related to medical reasons.”

A California Courts news release by Merrill Balassone says “[a]ll justices will appear in person for oral argument, barring any unforeseen circumstances.”

Courtroom seating will be limited to 35 people who do not have or possibly have COVID — excluded are those who (a) have tested positive within the previous five days, (b) are ill and waiting for test results, (c) have had a fever within the prior 24 hours, or (d) have COVID symptoms that have persisted over the previous five days.

Counsel and spectators “must wear well-fitted face coverings,” although counsel are “encouraged” to unmask while arguing. The order does not state any masking protocol for the justices themselves.

[Update: The order says it “supersedes” prior oral argument orders. That presumably means that the uninterrupted opening argument time promised by the now superseded orders (see here and here) is a thing of the past.]

Anybody who tests positive or has COVID symptoms within five days after attending an argument “shall notify the clerk’s office.”

The November arguments will be in San Francisco. When or if the court will return to its pre-pandemic routine of also holding hearings in Los Angeles and Sacramento is not known. [Update: Judicial Council spokesperson Cathal Conneely informs that arguments are currently scheduled in San Francisco through January 2023, that the February arguments are currently scheduled for Sacramento, and that the April arguments are currently scheduled for Los Angeles. (See the court’s 2022 and 2023 calendars.)]

All arguments will continue to be live streamed, as has been the practice since May 2016.

KQED interviews the Chief Justice, including about SCOTUS partisanship and the Kavanaugh hearing that prompted her to leave the Republican party

Mina Kim at San Francisco’s KQED conducted an hour-long interview with Chief Justice Tani Cantil-Sakauye. The Chief talked about heading the largest judicial system in the country, how court finances have greatly improved since the beginning of her tenure, how those finances might deteriorate in the not-too-distant future, her new job heading the Public Policy Institute of California, court functions during the pandemic, private mediation, using remote technology in the courts, the resolution of conflicts in the law as the primary reason for the Supreme Court deciding to hear a case, and how she is “thrilled” with the nomination of Justice Patricia Guerrero as her successor.

Cantil-Sakauye also spoke at length about partisanship at the U.S. Supreme Court and about the Brett Kavanaugh confirmation hearing that prompted her to end her Republican party affiliation (see here).

The Chief Justice said she “agree[s] with the narrative that is forming that [the partisan divide at the U.S. Supreme Court] is troubling to watch and it calls into question the impartiality of the judicial system, a system that survives on public trust and public confidence.” The situation “concerns jurists not only at the federal level but at the state level as well,” she added.

Regarding the Kavanaugh hearing, Cantil-Sakauye singled out the “employment of a female interlocutor because the [Republican] senators for some reason could not directly ask a question” of Dr. Christine Blasey Ford, who accused Kavanaugh of sexual assault. She asked, “how can we condone a process like this?” and said it was “alienating” for her.

Additionally, the Chief Justice mentioned two cases in particular during her Supreme Court career that stand out for her: Perry v. Brown (2011) 52 Cal.4th 1116 (proponents have standing to defend an initiative outlawing same-sex marriage) (see here) and In re Garcia (2014) 58 Cal.4th 440 (admitting an undocumented immigrant to practice law in California) (see here).

“Budget Crisis to Pandemic: Looking Back on California Chief Justice Tani Cantil-Sakauye’s Historic Term”

Katherine Proctor for CEB takes an in-depth look at Chief Justice Tani Cantil-Sakauye’s life and legal career, especially the Chief’s last 12 years as leader of the Supreme Court and California’s judicial branch. “Legal experts who follow the state’s high court say she’ll most likely be remembered for her administrative achievements during unprecedented challenges, and for her unifying influence on a judicial body that hasn’t always had a reputation for harmonious accord.”

ABA diversity award to Justice Liu

The American Bar Association announced that Justice Goodwin Liu is one of four recipients of the 2023 Spirit of Excellence Award from the Association’s Commission on Racial and Ethnic Diversity in the Profession. (Video here, starting at 3:10.)

The Commission’s mission “is to serve as a catalyst promoting diversity and inclusion within the legal profession and the ABA by facilitating the entry, participation and retention of diverse lawyers.” The award “celebrate[s] the efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession. Awards are presented to the lawyers who excel in their professional settings; who personify excellence on the national and international level; and who have demonstrated a commitment to racial and ethnic diversity in the legal professional.”

Justice Liu and the other honorees will receive their awards at a February 4 ceremony during the ABA Midyear Meeting in New Orleans.

Chief Justice will sit on November and December cases, and will pro tem if necessary after her term ends and after she starts her new job

Judicial Council spokesperson Cathal Conneely tells At The Lectern that Chief Justice Tani Cantil-Sakauye will participate in oral arguments through the end of her term and will then sit by assignment as needed to finalize any cases.

Because the Chief Justice opted not to run for reelection, her term ends on January 1. Under the 90-day rule, however, opinions for cases argued in November might not file until the end of January and opinions for December cases might not file until the beginning of March. The new chief justice — who will be current Associate Justice Patricia Guerrero, if she is elected next month — can assign Cantil-Sakauye to sit as a temporary justice after her term ends. (Cal. Const., art. VI, section 6(e).)

But, as soon as the Chief Justice’s term ends, she will become the president and CEO of the Public Policy Institute of California. (See here and here.) When Justice Mariano-Florentino Cuéllar retired last year to become president of the Carnegie Endowment for International Peace, I predicted he would not serve as a pro tem justice by assignment because I thought the court would prefer to not use a justice who is privately employed. Cuéllar did not pro tem and the court ended up filing opinions with only six justices participating in two cases in which Cuéllar had heard arguments.

Alternatively, the court could rush to file all its November and December calendar opinions before January 1. The court worked with that kind of speed in 2011 when Justice Carlos Moreno retired without agreeing to any pro tem assignments. (See here.)

One other thing: if a rehearing petition is filed in any case on which Cantil-Sakauye has participated and if the petition remains undecided both after her term ends and after the court has a new complement of seven permanent justices (i.e., after Judge Kelli Evans is confirmed as an associate justice and takes her oath of office), Cantil-Sakauye would probably not rule on the petition.

First Monday in October oral arguments; no conference this week

It’s not just the U.S. Supreme Court that will be in the courtroom tomorrow. The California Supreme Court is also hearing arguments on its three-case October calendar, which was moved up a week from the original schedule.

As usual, the arguments are being live streamed.

Because of the oral arguments, the court will not be conferencing this week and there will be a double conference next week.

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