Consensus and the Collateral Order Exception

For many Civil Procedure professors, the end of the Fall semester means it’s time to teach appeals. I’m not afraid to admit this gives me a certain nerdy joy. O final judgment! This year, I succumbed to nerd impulses and mapped out the Supreme Court’s doctrine regarding the “collateral order” exception to 28 U.S.C. 1291’s “final judgment rule.” Here’s what I found.  (Click on image for full-sized version with links to the underlying opinions in Casetext).

Collateral_order_exception

Collateral Order Exception Doctrine

The map shows 19 of the Supreme Court’s collateral order cases using a modified Spaeth Projection. To read the map, note first that red triangles represent cases where no collateral order exception was found (hence no appellate jurisdiction existed) and green triangles represent cases where the exception was recognized (providing appellate jurisdiction). More significantly, 9-0 decisions are displayed in the middle of the map. The amount of consensus lessens as cases move away from the middle, such that “5-4” decisions are displayed at the top and bottom of the map.

What is immediately striking is that the Court has an extraordinarily large number of 9-0 cases in this area of doctrine. Indeed, every case finding that the collateral exception does not apply was unanimous except for 1985’s Richardson-Merrell v. Koller. While the cases finding the exception does apply have provoked more dissent — going all the way back to the founding case of Cohen v. Beneficial — the average “degree of dissent” in the network is a mere 0.21. (The degree of dissent in a single case is calculated by multiplying the number of dissents by 0.25 so that a 5-4=1, 6-3=.75, 7-2=.5, 8-1=.25 and 9-0=0).

This map thus provides a striking visual example of what Professor Howard Wasserman has called “operational consistency and predictability” in some of the Court’s procedural rulings. Personally, I find the picture reassuring since it shows that not everything is political and divisive at the Court. Of course, there aren’t that many of us who care about these cases or the collateral order exception. For those few, I say: “Stay proud and I hope you enjoy the view!”

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Deadly Force, Mullenix v. Luna, and the Power of Dissent

In its second opinion of the 2015 Term, Mullenix v. Luna, the Court held a police officer immune from liability for his role in killing a fleeing suspect. This is how Justice Sotomayor’s solo dissent describes the conduct ultimately protected by the Court:

Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour. He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it. Mullenix’s rogue conduct killed the driver, Israel Leija, Jr.

Per Sotomayor, clearly established Fourth Amendment doctrine dictates that “an officer in Mullenix’s position should not have fired the shots.” So, she concludes, immunizing the officer’s use of deadly force was dead wrong.

Although Sotomayor’s argument is powerfully stated, it suffers from a fatal flaw. This fatal flaw is perfectly stated in the per curiam opinion:

The Court has [] never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity… The dissent can cite no case from this Court denying qualified immunity because officers entitled to terminate a high-speed chase selected one dangerous alternative over another.

Alas, these words do not lie. The Court’s car chase cases have uniformly sanctioned the use of deadly force. Sotomayor’s dissent fails to adequately deal with this doctrinal reality.

Of course, just because it is reality doesn’t mean that the Court’s current deadly force doctrine is well reasoned or just. Indeed, Sotomayor’s dissent fairly characterizes the Court’s opinion as blessing of a ” ‘shoot first, think later’ approach to policing.” While Sotomayor’s dissent appears in tune in with the times, the per curiam opinion seems utterly tone deaf to today’s maelstrom over police violence. At the same time, doctrinal reality is doctrinal reality.

So the real question becomes: can this reality change?

To answer this question, a quick review of relevant Fourth Amendment history is in order. Consider the following doctrinal map:

Sanctioning_Deadly_Force2_casetext

Deadly Force Since Tennessee v. Garner

(Click on image to open full-sized version with links to underlying opinions).

As the map shows, deadly force doctrine was not always so bleak. The seminal early case is Tennessee v. Garner, which invalidated a law authorizing police deadly force exercised when apprehending even non-dangerous fleeing suspects. In a 6-3 opinion written by Justice White, the Court held that the Fourth Amendment prohibited such lethal force to effect a seizure unless the police had “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

Critically, Garner‘s doctrinal formulation was contested from the outset. Justice O’Connor, joined by Chief Justice Burger and then-Justice Rehnquist, dissented. As the map shows, the views expressed in O’Connor’s dissent effectively came to rule the roost over time.

Close to twenty years after Garner, the Court decided Brosseau v. Haugen. In that case, the Court granted immunity to a police officer who shot a suspect in the back as he attempted to drive away from a parking lot. Although the opinion was per curiam, it is clear that two of the Garner dissenters — O’Connor and then-Chief Justice Rehnquist — were part of the coalition. Justice Stevens, the sole remaining member of the Garner majority then sitting on the Court, dissented. He saw the writing on the wall. After Brosseau, came Scott v. Harris. This time the Court found that the Fourth Amendment was not violated by police use of a “push bumper” maneuver to apprehend a speeder; the unarmed speeder was left paralyzed by the subsequent crash. Stevens again was the sole dissenter.

The last case before Mullenix is Plumhoff v. Rickcard. In that case, the Court exonerated a police officer’s killing of a suspect in a parking lot on both Fourth Amendment and Qualified Immunity grounds. By now, Stevens had left the Court and nobody dissented from the majority’s decision. (Justices Breyer and Ginsburg did not join every part of the opinion but did not write separately; Sotomayor was silent).  Although the facts of Plumhoff were admittedly grim — the suspect nearly hit a number of cops with his car — it still seems a missed opportunity for Sotomayor. She could have done more to protest the erosion of Garner, which would have better set up her otherwise compelling dissent in Mullenix.

One lesson to be drawn from this narrative is that dissents can shape doctrine over the long run. O’Connor’s dissent in Garner evidently presaged the Brosseau per curiam opinion. Cheers to Stevens for flying the true Garner flag in his Brosseau and Scott dissents and boos to his colleagues — especially Breyer and Ginsburg! — for failing to join him. Yet Stevens’ prescient analysis need not be forgotten. His dissents offer a potent alternate interpretation of Garner more in keeping with that seminal case’s original vision. Praising Sotomayor’s Mullenix dissent is all good, but we can help the dissent survive and thrive by making explicit its connection to an older and deeper doctrinal struggle.

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Mullenix v. Luna: Complete Citation Network

Mulleinx_Complete_citation_network

All Cases Cited in Mullenix v. Luna

On Monday, the Court handed down its second opinion of the 2015 Term, Mullenix v. Luna. The map above displays the all the Supreme Court cases cited by the per curiam majority opinion as well as by Justice Sotomayor in dissent. (Click on the image to get a full-sized version of the map with links to all the underlying opinions).

In my next post, I will discuss the substantive merits of the decision.

For now, those interested in the technical side of map creation might wish to know the following:  I made the map in two simple steps. First, I instructed the software to link the cases cited in Mullenix back to either (a) Harlow v. Fitzgerald, a seminal 1982 immunity case; or (b) United States v. Place, an important 1983 4th amendment case. It turns out that this simple heuristic picked up ALL the cases cited by Mullenix except two — Reichle v. Howards (2012) and Plumhoff v. Rickard (2014).  Second, I added Reichle and Plumhoff to the map by hand. One might predict ahead of time that an early-in-the-term per curiam decision would have a relatively simple citation network. This map confirms that intuition.

 

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Spokeo and Standing: Seventeen Cases

Does precedent determine how the Supreme Court will rule in any given case? Not necessarily. While past decisions should guide the Court’s resolution of new problems, justices may disagree on the scope of prior rulings. Justices may even disagree on whether undeniably on-point precedent should be overruled. Caselaw thus provides partial context for case resolution, but not the whole picture. Nonetheless, the precedent picture always matters. Today, I look at picture in Spokeo v. Robins, the standing case argued this past Tuesday.

In Spokeo, the question is whether respondent Thomas Robins has standing to sue petitioner Spokeo, Inc — an online “people search” company — for Spokeo’s alleged violation of the Fair Credit Reporting Act (FCA). The basic story is that Spokeo published false information about Robins on the Internet. The standing problem arises because this false information really didn’t harm Robins in a concrete way. Oversimplifying, the question is whether such a minor violation of the FCA alone creates a cognizable “injury” for Article III purposes.

Here’s where precedent comes in.

Robins argues in his brief that the only way that the Court could fdeny him standing is if it overrules two prior cases — Havens Realty Corp v. Coleman and Public Citizen v. Department of Justice. Decided in 1980s, both Havens and Public Citizen involved “statutory standing” for violations of the Fair Housing Act (Havens) and the Federal Advisory Committee Act (Public Citizen). Robins asserts that these precedents essentially determine the outcome here. For more modern support, Robins points to the Court’s 2007 decision Massachusetts v. EPA as consistent with his interpretation of the doctrine.

Spokeo naturally disagrees. In its brief, Spokeo argues that the Court’s precedents demand a very concrete showing of “injury in fact.” According to Spokeo, this baseline Article III requirement is typified by cases like Warth v. Seldin and Lujan v. Defenders of Wildlife. Furthermore, Spokeo accuses Robins of seeking the kind of speculative standing most recently rejected in the Court’s 2013 Clapper v. Amnesty International decision.

It perhaps goes without saying that both parties — and the various amici weighing in — cite a whole lot of standing precedent in their briefs. Is it realistic to think that any justice (or clerk) will review all the cases cited before arriving at a final decision or justifying their conclusion in an opinion? I doubt it. So what are the most important cases that the justices will look to? Consider seventeen prime candidates (click image for full-sized map).

Seveteen_All_Cites_Spaeth

Map 1 – Seventeen Case Network

Map 1 shows the citation network connecting seventeen standing cases that play major roles in the Spokeo briefing. This map uses a Spaeth Projection; cases are linked to the Supreme Court Database. Note that green upward-facing triangles represent cases where the Court found standing. By contrast, the Court rejected standing in those cases represented by purple downward-facing triangles. Unsurprisingly, Robins relies most heavily on green cases (including HavensPublic Citizen, and Mass v. EPA) while Spokeo places its eggs in the purple basket (with cases like Warth, Lujan, and Clapper).

Two points about this first map deserve emphasis. First, the triangles grow in size the more a case is cited by other cases in the network. Thus, the map shows that the two most relied-upon “no standing” cases are Lujan and Warth while the two most relied-upon “yes standing” cases are Gladstone and Tafficante. So if you want to get up to speed on the contours of the debate, try reading these cases first. Second, the map shows the Court has recently divided sharply over standing. The last three cases that came down the pike — Mass v. EPA, Earth Institute, and Clapper — were all 5-4s. In other words, it  comes as no surprise that reports on the Spokeo argument indicate that we are probably in for another squeaker.

Let’s now visualize these same seventeen cases in a different way.

Map 2 – Standing Cases with Dissents

Map 2 focuses on “opinions” rather than “cases.” Links on this map are to opinion text on Casetext. Note that this uses what I call a “Standard Projection” — the Y-axis represents the number of votes a particular case opinion received. Therefore, all the opinions pictured below the dashed line across the middle of the map are dissents or concurrences. For ease of reference, names of the specific opinion authors appear below the triangle representing that opinion.

This second map presents a clearer picture of the ongoing constitutional conversation. It makes apparent that the traditionally more “liberal” justices are inclined to find standing where the more “conservative” one aren’t. Thus, the highly controversial majority opinion in Lyons, which found no standing for a victim of police chokeholds seeking prospective injunctive relief, was written by Justice Scalia. In dissent, Justice Marshall cried foul. More recently, Justice Scalia took a narrow view of standing in the Earth Island Institute case while Justice Breyer wrote the lead dissent.

So do the maps predict the resolution of Spokeo? Alas, no. As I stated at the top of this post, case outcomes are not determined by precedent alone. And key policy considerations will inevitably come into play in Spokeo since it has such broad implications about responsibility for inaccurate information on the Internet. With that said, I can’t help but notice that the best cases for Robins — those cases in green — are mostly older and mostly written by folks no longer on the Court. In my book, that doesn’t bode well for the respondent. Going on the picture of precedent alone, I’d predict a purple “no standing” outcome and victory for Spokeo.

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Three Looks at Glossip

On the last day of last Term (June 29), the Supreme Court handed down Glossip v. Gross, which effectively authorized under the Eighth Amendment lethal injections that use a three-drug protocol of midazolam, pancuronium bromide, and potassium chloride. Since then, the case for Richard Glossip’s innocence — or at least the weakness of the case against him — has received widespread attention. Glossip nonetheless came within minutes of execution on September 30; Oklahoma Governor Mary Fallin only issued a stay due to problems with the lethal injection cocktail. Now an inquiry is underway and no executions will occur in Oklahoma until Spring 2016 at the earliest.

To be clear, Glossip’s current reprieve did not arise from official concern over his guilt. The issue is technically about drug acquisition. Yet the death penalty’s problems run deeper than drugs. In Glossip’s particular case, vital innocence questions remain and Glossip’s supporters will raise these questions in whatever forum they can. More generally, serious Eighth Amendment issues loom over administration of the death penalty. It’s no accident that SCOTUS’s Glossip decision was a 5-4. Capital punishment is hanging on by a thread.

For those interested in learning more about the history of the Eighth Amendment debate, I offer today three looks at doctrinal territory at issue in Glossip. Each map is different way of visualizing the citation network connecting Glossip to a 1947 case called Francis v. Resweber, which upheld the constitutionality of electrocuting a prisoner a second time after a botched first electrocution attempt. Glossip cited Resweber and it cited 10 cases that in turn cited Resweber. Unsurprisingly, almost all the cases in this 2-degree network concern the Eighth Amendment.

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First Look: 2 Degree Network Connecting Glossip to Resweber

This first map shows the basic network and was created by querying CourtListener’s API to find all the cases cited by Glossip that themselves cited Resweber. Note that CourtListener does not yet distinguish between majority and separate opinions (though that is coming soon!) and so the connections between Glossip and Resweber could occur via dissenting cites. Note further that the Y-axis in the map above has no significance. Cases are arranged for maximum visual impact.

Glossip_8A_Chrono_casetext

Second Look: Chronologically Proportional

This second map is pretty much the same thing as the first, except that the spaces on the X-axis are proportional to the actual time between cases. (In the first map, the space between cases was the same no matter what). I also changed the colors, just for fun. As with the first image, clicking the second image opens a full-sized and more readable version of the map. The first map links to cases in CourtListener, while this second map links to cases in Casetext.

Glossip_8A_spaeth

Third Look: Spaeth Projection

The third map once again shows the same network, but this visualization uses a Spaeth Projection. This means that Y-axis now has meaning: it shows the vote for outcome and whether this outcome was “liberal” or “conservative” according to the Supreme Court Database. Note that Glossip is coded as a 5-4 conservative decision as is Resweber. To see the SCDB data for any of the cases pictured, simply click on the opinion in the full-sized version of the map.

This final map most dramatically illustrates just how divided the Court has been in this area of doctrine. The average degree of dissent in the citation network is 0.81, which is calculated averaging the degree of dissent for individual with 9-0 decisions = 0.0, 8-1 decisions = 0.25, 7-2 = 0.5, 6-3 = 0.75, and 5-4 = 1.0. Put differently, the average vote count for cases in this network fell between a 6-3 and a 5-4. In other words, the controversy in Glossip is part of a long line of controversies. To understand how to affect the future of this enduring debate, folks might want to look the pictured past.

 

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Doctrinal Desert: A Watershed in Sight?

Last week, the Supreme Court heard argument in Montgomery v. Louisiana. Two issues were on the table. The first is whether the Court’s 2012 Miller v. Alabama decision — striking down mandatory life-without-parole sentences for juveniles to under the Eighth Amendment — applies retroactively to cases on collateral review. The second issue is whether the Court even has jurisdiction to hear Montgomery’s appeal. According to reports about the argument, the Justices seemed far more interested in, and confounded by, the second issue.

This is unfortunate. Relief for Mr. Montgomery (and those similarly situated) is only possible if the Court actually reaches the retroactivity question. And perhaps Mr. Montgomery deserves relief. Though he committed a terrible murder, he was only 17 years old when he did it. Though he killed a law enforcement officer, he did so way back in 1963 during a turbulent and tension-filled time. And Mr. Montgomery has been in prison ever since. That’s 52 years and counting. To me at least, that smells like cruel and unusual punishment.

So let’s imagine for a second that the Court does reach the retroactivity issue. On the surface, prospects here do not look good. According to the governing precedent of Teague v. Lane, new constitutional rules announced in criminal cases ordinarily do not apply retroactively to cases on collateral review. Teague envisioned two exceptions to this general rule. First, retroactivity is possible for “substantive” decisions — those changing the definition of what is criminal or or what punishment can be imposed. Second, retroactivity is also possible for new “procedural” decisions if those decisions announce “watershed rules” that re-conceptualize what constitutes basic fairness in a criminal trial.

Although Mr. Montgomery and the parties supporting him argue that Miller laid down a new substantive rule thus invoking Teague‘s first exception, I want to focus on the second exception. For the “watershed rule of criminal procedure” exception demonstrates just how illusory justice can be for those trapped in our system of mass incarceration. The fact is that the Court has never recognized a watershed rule under Teague. As my colleague Garrett Epps quipped the other day: “Watershed rules are like Bigfoot; everybody’s heard of them, but nobody’s seen one.” Consider the following map.

Rejecting_Retroactivity_casetext

No Retroactivity for Procedural Rules

(Click on the image to open a full-sized version of the map with links to the underlying opinions. To open the identical map with links to Supreme Court Database entries for each case, click here.)

The magenta circles on the map represent decisions where the Court announced important new procedural rules — Caldwell, Batson, Mills, Simmons, Ring and Crawford. Even though these decisions significantly changed the law and often concerned  life-and-death issues, the brown triangles represent the Court’s universal subsequent rejection of  retroactive application for the rules. No matter the rule, the Court decided that Justice did not require looking back.

Two cartographic points deserve mention. First, Summerlin and Banks were decided on the same day. The map only changes Banks‘ decision date for readability’s sake. Second, the map makes apparent that retroactivity very much divides the Court. As shown by the Y-axis (using a Spaeth projection), four of the decisions rejecting retroactivity — Sawyer, O’Dell, Summerlin, and Banks — involved 5-4 splits. Interestingly, Spaeth classifies all the decisions announcing new rules as “liberal” and all the decisions rejecting their application was “conservative.”

Is it possible that one day a watershed rule will emerge from this doctrinal desert? Perhaps. As mentioned above, it is not likely that Montgomery will be this case since jurisdiction stands in the way and the parties are angling relief under Teague‘s substantive exception. But advocates and scholars should not despair of ever finding a watershed rule. The persistence of 5-4 splits on retroactivity shows kinks in the Court’s armor. With the problem of mass incarceration now getting mainstream attention, the Court may realize that retroactive application of important new rules is one easy way to get very old men and women out of prison. And the time for that innovation is well past due.

 

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Obergefell: Equal Protection for Children?

Last week on this forum, I mapped out a line of Supreme Court equal protection cases know as the non-marital children cases. These cases were featured in a key amicus brief submitted by the Scholars of the Consitutional Rights of Children in the Obergefell litigation. Although Justice Kennedy did cite that amicus brief in his majority opinion, he notably failed to cite any of the underlying non-marital children cases. Nonetheless, I wonder whether it would be fair to characterize Obergefell as — among other things — a case about equal protection for children.

EP_Children_Obergefell_casetext

Obergefell, Equal Protection, and Children

The map above puts this question in visual form by displaying the five main cases discussed in the amicus brief — Palmore, Plyer, Caban, Weber, and Levy. Comparing the equal protection analysis in these cases to that offered by Kennedy in Obergefell is potentially instructive. Readers interested in doing this can do so by (a) clicking on the image above to open a full-sized map with links to underlying opinions;  and/or (b) clicking here to open an identical map with links to Supreme Court Database information about the cases.

 

 

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Obergefell: Equal Protection and Due Process Convergence?

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles… In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. Obergefell v. Hodges,  (2015)

In his Obergefell majority opinion, Justice Kennedy emphasized that due process and equal protection often work together to guarantee rights and ensure against discrimination. Although Justice Scalia characterized this idea as “incoherent,” it is undeniably true that the Court has invoked both due process and equal protection together to strike down discriminatory schemes in the family context. Consider the following (click to open full-sized image in a separate window):

EP_DP_in_Obergefell

EP and DP Convergence

The map above shows a network of cases cited by Kennedy in Obergefell that connect via direct citation back to either Pierce v. Society of Sisters or Skinner v. Oklahoma. Note that cases represented in blue cite back to Pierce and are generally regarded as due process cases (Pierce is a foundational substantive due process case). Similarly, cases represented in red cite back to Skinner and are generally regarded as equal protection cases (Skinner is a foundational equal protection case). Importantly, the Court struck down the discriminatory scheme at issue in all of the cases displayed in this network. And in most of these cases, the Court acted under both equal protection and due process — as shown by red and blue cite lines.

Now the network above does not represent all the precedent Kennedy cited in support of his idea of EP/DP convergence. Rather, the map uses citations back to Pierce and/or Skinner as a blunt proxy of this idea. Readers interested in the details of the cases can follow the links on the map above to the underlying opinions in Casetext. Alternatively, readers can open an identical map at this link, which in turn contains links to the Supreme Court Database instead of the opinions. Together the maps provide a useful starting point for investigations into the convergence idea.

 

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Authority for Maryland v. Kulbicki

Yesterday the Supreme Court handed down its first opinion of the 2015 Term, Maryland v. Kulbicki. In a per curiam opinion, the Court reversed a Maryland Court of Appeals decision that had ordered post-conviction relief for Kulbicki based on his counsel’s ineffective failure to challenge flawed Composite Bullet Lead Analysis (CBLA) testimony. Over at the Forensics Forum, Professor Brandon Garrett offers good analysis on why the Court’s decision is flawed and unnecessarily stingy, especially when compared to last Term’s per curiam decision in Hinton v. Alabama. To facilitate further discussion, I offer two maps that provide Kulbicki‘s doctrinal context.

Kulbicki_casetext

Click to open full-sized image with links to underlying opinions

As this first map shows, Kulbicki only cites five other Supreme Court opinions to justify its analysis. Citation analysis shows the cases form a tight family network. Consider that the earliest case Kulbicki cites is 1963’s Gideon v. Wainwright, the seminal right-to-counsel case. The next earliest case invoked is Strickland v. Washington, which lay the foundation for modern Ineffective Assistance of Counsel (IAC) doctrine. Strickland itself cites Gideon. Finally, Kulbicki cites three more recent IAC cases, all of which cite Strickland, which cites Gideon. Thus, Kulbicki connects every case in its network to Gideon at a maximum of three degrees.

Kulbicki_spaeth

Click to open full-sized image with links to the SCDB

Another way to visualize Kulbicki‘s network is pictured above. It uses a Spaeth Projection that shows both votes for outcome for cases and whether the cases “liberal” or “conservative” according to Spaeth.  Interestingly, the average “degree of dissent” in this network is very low (0.29). For reference, a 9-0 case is said to have a 0 degree of dissent; a 8-1, a 0.25, a 7-2, a 0.5, a 6-3, 0.75, and a 5-4 a 1.0. Thus, this map shows the opinion largely cited uncontroversial authority in support of what the Court presumably hoped would be an uncontroversial conclusion.

Of course, the Kulbicki court does cite one 5-4 decision, 2005’s Rompilla v. Beard. Yet this too is a savvy rhetorical choice. In granting IAC relief, the Rompilla majority observed that failure to look at a file the prosecution says it will use is ineffective, unlike “looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there.” In Kulbicki, the Court denies IAC relief and cites Rompilla for the affirmative proposition that lawyers don’t have to look for needles. The message is: even in a close-call case not too long ago, the liberal majority agreed that lawyers don’t have to look for needles; that’s how today’s unanimous Court sees this case. One need not agree with the outcome in Kulbicki to appreciate its doctrinal rhetoric.

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Spaeth Projection: Non-Marital Children Cases

When it comes to same-sex marriage, it’s all about the children. Or so I thought when I first read Justice Kennedy’s majority opinion in Obergefell v. Hodges.  Although “safeguard[ing] children and families” technically provided the “third basis” for “protecting the right to marry,” this justification really jumped off the page. Kennedy seemed close to anger when he bluntly concluded: “the marriage laws at issue harm and humiliate the children of same-sex couples.” The affront to children’s dignity was clearly a persuasive argument to Kennedy — as it is to me and so many others.

Imagine my delight then when Catherine Smith came to UB a few weeks ago. Professor Smith was Counsel of Record on the “Scholars of the Constitutional Rights of Children” amicus brief, which Kennedy cited as authority for that key “third basis” about safeguarding children. I loved that argument and wanted to hear her perspective. At her talk, I ended up learning of an area of constitutional law that was entirely new to me: the non-marital children cases.

If you are as ignorant now as I was then, let me give you the basic scoop. From the 1960s until the 1980s, the Court heard a series of Equal Protection challenges to discrimination against the children of non-married parents. Depriving children of property, insurance or other rights based the perceived immorality of having unwed parents has a long history. The non-marital children cases stand as significant victories against this discriminatory tradition. While Professor Smith cited to many different kinds of cases in her brief, non-marital children doctrine played a special rhetorical role.

Since it is not too widely known these days, non-marital children doctrine also affords a great opportunity to experiment with a new feature of the SCOTUS Mapper desktop software. This new feature leverages the Spaeth dataset (a.k.a. Supreme Court Database). For the uninitiated, Spaeth is a massive NSF-funded project that codes every Supreme Court decision from 1946 to the present. Critical variables coded include the issue, legal provision involved, votes, and decision direction. Although some legal scholars view Spaeth skeptically, I find its scheme sufficiently reliable to at least guide an initial inquiry into a new area of doctrine.

My strategy for mapping started with the Children’s Rights brief. Reading it, I learned that the first case in this line was Levy v. Louisiana (1968) and that the Court’s last pronouncement was in Clark v. Jeter (1988). I looked up both of these cases on Spaeth and found they shared the same codes for issue (“Illegitimates, Rights Of (cf. Juveniles): Typically Inheritance And Survivor’s Benefits, And Paternity Suits”) and for legal provision (“Fourteenth Amendment: equal protection”). Armed with this knowledge, I then searched for all the cases in Spaeth sharing that same issue and legal provision (I also included Fifth Amendment equal protection in my search). This search returned  16 cases.

Spaeth_Projection_Non-marital

Spaeth Projection: Non-Marital Children Cases

The map above visualizes those 16 cases. It uses what I call a “Spaeth Projection” to display all the data. The Y axis in this map shows the vote for outcome and decision direction. Liberal-coded decisions occupy the top half of the map and are shown in blue. Conservative-coded decisions occupy the bottom half of the map and are shown in red. Cases displayed towards the middle of the map produced more consensus than those towards the top or bottom.

Readers interested in viewing all the Spaeth data for any case on the map can do so directly. Just click the image to open a full-sized map and then clicking on any case of interest. When examining the underlying data, one point about the Spaeth data bears emphasis. The decision direction codes for the cases — “liberal” versus “conservative” — should not be read politically. Rather, think of this variable as a label for who won or lost a case before the Court. In this particular area, “liberal” cases are those where the claims pressed on behalf of the non-marital child (or children) were successful and “conservative” cases are where the child lost.

According to Spaeth, the children won 11 out of 16 cases. Even more interestingly, we see that children won last four cases in the line 9-0. Without even reading any of the cases, it looks to me that the doctrine started to settle around a “liberal” view towards the middle 1980s. Of course, it would be a mistake to speak too confidently about any area of doctrine without actually reading the cases. I simply put forward this notion of “settling” to demonstrate the kinds of hypotheses Spaeth visualizations can inspire.  In addition, my settling hypothesis seems supported by the fact no cases in this particular area appear since 1988.

Over the next few posts, I intend to test my hypothesis against the cases and relevant commentary. I will also build more refined maps of the doctrine. For now, I hope this map provides a useful starting point and big-picture view for any readers interested in pursuing their own studies in this area.

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