How Appealing



Wednesday, October 18, 2017

“Supreme Court Justice Before and After”: Yesterday evening, while I was in the Bronx with my son watching the New York Yankees accomplish an improbable and stirring comeback to even the best-of-seven American League Championship Series against the Houston Astros at two games each, the Double Jeopardy! segment of the acclaimed television quiz show Jeopardy! included (evoking applause or consternation, depending on whom you ask) questions in the category that appears as the title to this post.

A legion of loyal “How Appealing” readers (or at least one of them) was kind enough to draw the category and the answers and questions appearing in it to my attention via email. Because the appellate community rejoices when the U.S. Supreme Court appears in Jeopardy! clues, lets take a look at the answers that appeared on the board yesterday evening in this category. The answers were (with dollar values shown):

Supreme Court Justice Before and After

($400) First Chief Justice ever who, despite “99 Problems,” was always “Big Pimpin'”;

($800) He replaced Thurgood Marshall and chugged his way around the island of Sodor;

($1200) This Heisman runner-up jurist, now “The Home of the Original Slider”;

($1600) HBO’s “Last Week Tonight” host who went on to become “The Great Dissenter”; and

($2000) Current justice who’s been known to launch a rocket or 2.

And the corresponding questions that the contestants had to supply to earn that money were . . . wait for it:

($400) John Jay-Z;

($800) Clarence Thomas the Tank Engine;

($1200) Byron White Castle;

($1600) John Oliver Wendell Holmes; and

($2000) Anthony Kennedy Space Center.

Now readers may recall that once upon a time I tried out for Who Wants to Be a Millionaire and even aced the test, or more accurately did well enough on the test that I entered the pool of possible contestants for the season in question and might have appeared on the program had I possessed an actual TV quiz show-worthy personality.

Although I never have tried out to be a Jeopardy! contestant, I do enjoy playing along at home (which is where I wasn’t last night, thanks to a certain quite memorable baseball game in the Bronx). I don’t know about you, but the “Before and After” category on Jeopardy! is one that I always find quite challenging. Indeed, in this very category, the contestants on yesterday’s show supplied the correct question in response to only three of the five clues. Nevertheless, it’s nice to see that Jeopardy has found a way to combine SCOTUS and pop-culture/general knowledge in this confounding category.

Posted at 8:57 AM by Howard Bashman



Tuesday, October 17, 2017

Programming note: Later this afternoon, I will be attending a Major League Baseball playoff game in the Bronx with a family member who is now attending law school in New York City. As a result, additional posts are unlikely to appear here until Wednesday morning.

Posted at 11:20 AM by Howard Bashman



“Trump’s judge picks: ‘Not qualified,’ prolific bloggers; But Republican senators still get on board.” Seung Min Kim of Politico.com has this report.

Posted at 11:03 AM by Howard Bashman



“Justice Elena Kagan talks about life on the Supreme Court during Chicago appearance”: Steve Schmadeke of The Chicago Tribune has this report.

Posted at 11:00 AM by Howard Bashman



“Justice Sotomayor motivates law students to embrace difference”: Michael Ortiz and Jill Leavey of The Hofstra Chronicle have this report.

Posted at 10:53 AM by Howard Bashman



“Trump and McConnell See a Way to Make Conservatives Happy”: Carl Hulse has this new installment of his “On Washington” column online at The New York Times.

The installment begins, “Stymied legislatively, President Trump and Senator Mitch McConnell are turning their attention to one way they can skirt Democratic roadblocks and mollify unhappy Republicans — by filling scores of federal court vacancies.”

Posted at 10:50 AM by Howard Bashman



“It’s a Fact: Supreme Court Errors Aren’t Hard to Find; A ProPublica review adds fuel to a longstanding worry about the nation’s highest court: The justices can botch the truth, sometimes in cases of great import.” Ryan Gabrielson of ProPublica has this report.

Posted at 10:45 AM by Howard Bashman



“To Become a Better Appellate Lawyer, You Should Read This Book”: This month’s installment of my “Upon Further Review” column appears in today’s edition of The Legal Intelligencer, Philadelphia’s daily newspaper for lawyers.

My column this month focuses on the brand new Third Edition of “Winning on Appeal: Better Briefs and Oral Argument,” by Tessa L. Dysart, Leslie H. Southwick, and Ruggero J. Aldisert. The book also includes a foreword by Justice Samuel A. Alito, Jr. I received my copy in the mail last week.

Posted at 10:14 AM by Howard Bashman



View live, online today’s Senate Judiciary Committee confirmation hearing for D.C. Circuit nominee Gregory G. Katsas: Via this link. Among the unique challenges this nominee will face is whether confirmation can be attained even after listing my name in his answers to the Senate Judiciary Committee’s questionnaire.

And don’t change that channel even after Katsas has concluded his testimony, or else you risk being surprised down the road that a brand new federal district judge has the last name Beaverstock.

Posted at 9:54 AM by Howard Bashman



Constitutionsplaining with Justice Neil M. Gorsuch: Don’t miss Nina Totenberg‘s lengthy segment on this week’s installment of the First Mondays podcast.

In addition to discussing marijuana smoking, the partying habits of law school deans (in which interviewer Dan Epps describes a certain Harvard Law School faculty member in a manner that even I could identify), and the U.S. Supreme Court‘s recent gerrymandering oral argument, Totenberg dishes the gossip on the newest Justice.

Among the things Totenberg claims to have heard through the grapevine are: (1) Justice Elena Kagan and Gorsuch are having knock-down, drawn-out battles over the outcome of cases during the Court’s private conferences; (2) now that Gorsuch has joined the Court, he doesn’t really believe in precedent, notwithstanding that his firm belief in precedent was a major sales pitch at his SCOTUS confirmation hearings; and (3) Gorsuch simply isn’t as smart as had been depicted (IQ tests, anyone?).

Of course, all of this and more that Totenberg discusses with interviewer Epps could simply be dismissed as “liberal propaganda,” but it’s certainly worth a listen, because when it comes to behind-the-scenes SCOTUS insights, all we have is rumors.

Posted at 9:32 AM by Howard Bashman



Monday, October 16, 2017

“Supreme Court refuses to hear case questioning Google’s trademark; Lawsuit claimed ‘google’ had become synonymous with ‘search the Internet'”: David Kravets of Ars Technica has this report.

Posted at 8:45 PM by Howard Bashman



“Justices to Decide on Forcing Technology Firms to Provide Data Held Abroad”: Adam Liptak of The New York Times has this report.

Robert Barnes of The Washington Post reports that “Supreme Court to consider major digital privacy case on Microsoft email storage.”

David G. Savage of The Los Angeles Times reports that “Supreme Court to decide if U.S. agents can obtain emails stored overseas by Microsoft.”

Richard Wolf of USA Today reports that “Supreme Court will hear U.S.-Microsoft battle over emails.”

Matt Day of The Seattle Times reports that “Supreme Court will take up Microsoft email warrant fight.”

Mark Sherman of The Associated Press reports that “Court agrees to take on US-Microsoft dispute over emails.”

Lawrence Hurley of Reuters reports that “U.S. Supreme Court to decide major Microsoft email privacy fight.”

Greg Stohr of Bloomberg News reports that “Microsoft Email-Access Fight With U.S. Gets Top Court Review.”

David Kravets of Ars Technica reports that “Supreme Court to decide if US has right to data on world’s servers; Feds claim legal right to reach into the world’s servers with a valid US warrant.”

Josh Gerstein of Politico.com reports that “Supreme Court to hear case on accessing data stored abroad; Justice Department gets review of decision favoring Microsoft.”

And Matt Ford of The Atlantic has a report headlined “Should Federal Prosecutors Be Able to Search Americans’ Emails Overseas? The Supreme Court will resolve a standoff between Microsoft and federal prosecutors who want access to customer data stored in Ireland.”

Posted at 7:56 PM by Howard Bashman



“Greg Katsas — Nominee for the U.S. Court of Appeals for the D.C. Circuit”: Harsh Voruganti has this post at his blog, “The Vetting Room.”

Posted at 7:32 PM by Howard Bashman



“Yahoo! can’t withhold dead man’s e-mails from family, SJC rules”: John R. Ellement of The Boston Globe has this report.

Gintautas Dumcius of The Republican of Springfield, Massachusetts has an article headlined “Yes, Yahoo can give dead man’s family members access to his email account, Massachusetts Supreme Judicial Court says.”

And Nate Raymond of Reuters has a report headlined “Massachusetts court: Yahoo can give dead man’s emails to siblings.”

You can access today’s ruling of the Supreme Judicial Court of Massachusetts at this link.

Posted at 3:33 PM by Howard Bashman



“Slow and Unsteady: Supreme Court’s New Transcription Service.” Kimberly Robinson has this post at Bloomberg BNA’s “US Law Week Blog.”

Posted at 3:02 PM by Howard Bashman



“The Danger of President Pence: Trump’s critics yearn for his exit; But Mike Pence, the corporate right’s inside man, poses his own risks.” Jane Mayer has this article in the October 23, 2017 issue of The New Yorker.

Posted at 2:36 PM by Howard Bashman



“Court nominee faces scrutiny over Trump White House role”: Josh Gerstein of Politico.com has an article that begins, “Greg Katsas has spent more than three decades burnishing a high-powered legal resume that makes him a solid pick for the D.C. Circuit Court of Appeals, but the biggest obstacle to his winning confirmation is the job he’s had for the past nine months: serving as a top White House lawyer for President Donald Trump.”

Posted at 1:09 PM by Howard Bashman



Access today’s Order List of the U.S. Supreme Court: At this link. The Court granted review in four new cases.

In addition, in Scenic America, Inc. v. Dep’t of Transp., No. 16-739, Justice Neil M. Gorsuch issued a statement, in which Chief Justice John G. Roberts, Jr. and Samuel A. Alito, Jr. joined, respecting the denial of certiorari.

And in Truehill v. Florida, No. 16-9448, Justice Stephen G. Breyer issued a dissent from denial of certiorari. And Justice Sonia Sotomayor also issued a dissent, in which Justices Ruth Bader Ginsburg and Breyer joined, from the denial of certiorari. Because four votes are needed to grant certiorari in a case, if Justice Elena Kagan (or any other Justice for that matter) had voted to grant certiorari, this death penalty case would have landed on the Court’s merits docket.

Posted at 9:37 AM by Howard Bashman



Sunday, October 15, 2017