After discussing SCOTUS voting blocs and public perception, in part two of our discussion Adam Feldman rounds up the 2023-2024 term. We cover:
Adam Feldman biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone. I am Jeff Lewis
Tim Kowal 0:18
and I'm Tim kowal AS certified appellate specialists, both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, please recommend it to a colleague. Yeah, if you like being surprised in your legal practice, take this as your spoiler alert. All right. Well, Jeff, today we are continuing our fascinating conversation about Supreme Court analytics with Dr Adam Feldman. We started our conversation with him last week. We covered his his blog empirical SCOTUS, the court analyzer project that you can find there and and how you can hire him to consult with you if you are an institutional litigator or you've just got a case that you're trying to get up to the Supreme Court, and you want to find the best route to get there. Adam is the analyst to talk to. And we were talking about the favorability ratings of the Supreme Court. We were talking about the current six three makeup, and sometimes referred to the the 333 makeup on the court, and how we can find, you know, the various voting blocs, or the justice within various voting blocs on the court. And now we wanted to take what we had talked about in our last discussion and apply it to the recent term and talk about what cases surprised Adam in the term. And before I start asking you, Adam about specific cases, can you give us kind of your general overview of the 2023 2024 term, what was different about it? What was the same? What are people saying about it? Is it justified or not? Just give us your, your 30,000 foot view on it. Well, so
Adam Feldman 1:53
I, I've heard similar things about this past term as previous terms that the big cases were generally saved for the end and came down along the votes that people expected and that, you know, big cases when we're looking at some of these administrative deference cases, when we're looking at the Trump cases, especially the United States one, not the Anderson case, which was decided earlier. So expectations were met about how the justices would divide in many of the cases, but we had some really interesting kind of splits in some of the cases that were unexpected. So I think we'll probably talk about Brahimi, but that's one example of a case that maybe didn't split exactly how folks predicted that it would. And there are other examples. There were also some cases that were decided on just disability grounds. So looking at standing and having that as the major factor, which helps to to give more understanding to the the doctrine of standing, it gives additional layers, but it also doesn't necessarily handle the substantive issues in cases. So sometimes I'm surprised that the court takes a case when it takes so few cases to begin with, takes a case that they don't decide on the substantive merits of the issue. So that you know happened in the the FDA prestone case in particular. So, so yeah, there's definitely some surprises, a lot of expectations that were met and and then other ways to understand the justices that I think will permeate through future terms.
Tim Kowal 3:30
All right, well, let me ask you about a few of the cases that stood out to me as interesting, maybe specifically, some of them because of the of the way that the justices came down and the voting block splits. So the first one wanted to talk about was the SEC versus jar Casey case. This is the one that held that the that Seventh Amendment rights apply in agency proceedings. And in this one, I think, let's see. I think that was a six
Adam Feldman 3:57
three was yes, and six, three along the ideological lines.
Tim Kowal 4:02
Yeah, along the ideological lines. And maybe this is a good place to to raise what I thought was interesting. We talked in our last session about one of the ways that that some people have broken up the or labeled the voting blocks, is that the the three justices, we'll call them in in the middle, Chief Justice Roberts, Justice Kavanaugh and justice Barrett are sometimes referred to as the Institutionalists block of the of the court. And I thought it might be interesting if the if the other two groups seemed are could be labeled as as less institutional institutionalist or anti institutionalist, is wouldn't it be surprising that the institutionalist group joined this opinion that cut back on the the administrative state. And wouldn't it be surprising that the that the liberal and anti institutionalist group dissented from that view?
Adam Feldman 4:53
So, you know, this is where the the idea of an institutionalist bloc really kind of raises some. Questions and what that means. Because I'm sure if you asked any of the justices, they would say they're Institutionalists, right? They they care about the Supreme Court, they care about the way it's perceived, and they care about how the decisions lead to stare decisis, right, the decisions of lower courts. And so, you know, I think when we when we look at the justices, jarkesy is one of the examples liver brights, another one where there has been hints from both the middle justices, the middle three, and the three on the far right, that the administrative state and judicial interpretations that gave deference to the administrative state were on the decline. So, you know, it really depends how we frame institutionalism. Because, you know, I think that there's a lot of generalized institutional favor from all of justices, but not necessarily with institutional regard to other aspects of the federal government. And, you know, I mean, look it this also comes down to a measurement question, because it's in on one hand, you know, pulling away power from administrative agencies. On the other hand, it's really giving more power to Congress and the and judges. So it's not, you know, just pulling institutional power away in a vacuum is just displacing it into other areas, so judges will have much more room to interpret Congress is going to, you know, the words of Congress are going to be scrutinized at a higher level and and so, you know, it's just moving it around. I wouldn't say that it's necessarily of a that the middle block that is defined as institutionalist is treating it any differently, or should, because it's just, it's malleable. Yeah,
Tim Kowal 6:50
well, on that, and you had mentioned Loper Brian, let's go right to that one. That's the that's the case that that overruled Chevron. Chevron had been in some maybe decline for many years. It hasn't been cited in many years. I think so maybe a lot of people saw that coming, but still, it's a it's going to be a major disruption to the way the administrative state works, and from the standpoint of if institutionalism means a greater emphasis on stare decisis and leaving long standing precedent alone. Wouldn't this mean, again, that the institutionalist bloc would have, would not have joined this opinion.
Adam Feldman 7:29
So the stare decisis question is something that I've studied before, and I think you know, maybe the general understanding of stare decisis, the power of stare decisis and what happens when the justices overrule past precedent. You know, hasn't really changed along the years. You know, the Supreme Court overrules about two cases of its previous precedent each term. It's, you know, it's not exact. Some terms you have three or more. Sometimes you have none, but averages around two, and it's been consistent in that. It's just that the precedents that have been overruled the last few years, ranging from Roe versus Wade to Grutter versus Bollinger in the affirmative action cases now with Chevron, are cases that were heavily relied upon by either the public or by courts in their analysis. So because of that, that reliance is maybe different in these cases than in other precedents have been overruled. There's kind of different feelings about, you know, about how the Court's decisions are being made, but from an institutionalist perspective, you know, this isn't any shift from these, you know, middle justices. It isn't a shift really, from any of the justices, because we're seeing the same patterns. It just in different cases. So, so what I've seen is is kind of a similarity across time here, okay,
Tim Kowal 8:59
and in either of these cases, sec versus jarkesy or Loper bright. Did they surprise you, or did you see these coming? Those
Adam Feldman 9:08
were, I think, two ones that were easy to peg. I mean, I you know, I thought if Loper bright and well, if Chevron fell with Loper right, then jarkesy was going to come across, across similar lines. We saw this with another administrative agency case at the end of the term as well. And then we had the CFPB case, which was actually somewhat surprising in how that came down. So yeah, I think that's the only one of the administrative state cases that was somewhat surprising in outcome.
Tim Kowal 9:40
Yeah. So the CFPB case, CFPB versus commercial Financial Services Association, held that the CFPB funding mechanism did fit within history and tradition of the way that administrative agencies are funded. And probably the surprising thing to you and everyone else. Is that Justice Thomas broke with the conservative bloc to join this one. Yeah.
Adam Feldman 10:05
So, so I think it was interesting. I have my hypothesis what happened, which was that that Justice Thomas was probably on the fence on this case, and and Roberts was going to be in the majority. And I think, you know, and this is with no insider knowledge, it's possible that, because Chief Justice Roberts assigns the majority opinions in cases where he's the majority, that he he assigned it to Thomas with the hope that Thomas would assigned it, you know, with the understanding that Thomas would join, and, you know, and Thomas would join if it was maybe a more moderate approach. Because I don't think that Thomas is necessarily a fan of the CFPB and the funding, and, you know, I don't know that that was necessarily something that he would have voted for otherwise. But I think due to, you know, maybe the chief strategy of pulling together justices from the left and the right, that's how it came down.
Tim Kowal 11:01
Can you as a as a data analyst, in your approach, can you possibly take that sort of strategic into consideration that that well, this, this, this member of a conservative bloc might be picked off to join a decision that he otherwise never in a million lifetimes, would have joined if he's given the opportunity to draft the opinion.
Adam Feldman 11:25
It's yeah, no. I mean generally no, because we don't have the data to test on this. We don't have the we don't have the conference votes that are made after oral arguments. So you know, because the supreme that the justices vote at least two times. They give their initial votes after oral argument, and then they voted at least one more time once they're given the draft opinions. We only know of the votes during the first the first conference, if they're released to the public, and the last set of papers that were released to the public that gives us information were from Justice Blackmun, and they go through the, you know, earlier part of the 1990s so, you know, with with those papers, we could have made conjectures like the one you're asking me about, of those justices at that point in time, but we don't have the data on this court, so we don't know how they're voting and if they're switching votes, but we do know based on the Blackman papers, that in just under 10% of cases from that subset, there was a justice that flipped between the initial vote after oral arguments and the final vote on the merits. So, so, yeah, it's something that we could do if we had the data. But since we don't have the data, it, you know, it's, it's extremely complex, and I think you know, it would lead to a lot of mistakes. Yep,
Tim Kowal 12:44
yeah, it's just the human part of the human element that very hard to peg down. Let's talk about a couple of the Trump related cases, Trump versus Anderson. This is the one where that held nine oh, that the 14th Amendment did not disqualify former President Trump from the ballot. Are you surprised that it was unanimous?
Adam Feldman 13:04
No, I'm not surprised at all. That was my sense. As soon as as the Colorado case came down, saying that that they could potentially break from, you know, ranks in terms of how they selected. So, yeah, I mean, when you put this in play at the state level, for for federal office, it gets extremely complicated and, and I don't think any of the justices were ready to release those reins. So, you know, I think that while you know, the justices probably have split views on Trump, you know, I mean, I have my sense that, you know, majority of justice probably aren't totally enamored with Trump to begin with, but we can go back to, you know, one could go back to Trump versus Hawaii and the, you know, the immigration cases, to get a better understanding of the justices views of Trump. But in the Anderson case, I think we saw that there were mixed sentiments on how it should be decided and how the balance of power should be held. And we see that with the concurrence by the liberal justices, the liberal three that talked about, okay, we don't want to go any farther than we need to, in this case, giving Congress extra say so in how the 14th Amendment's interpreted. In this instance, we had justice Barrett's concurrence also, which somewhat talked about similar things, that maybe the majority went too far, but also that it was important in a case that had is wrapped up in politics, to see the court decide as a uniform body. So while these are concurrences and not the sense, it showed me that there really were different views on this issue, but that the there was a lot of importance in consensus, but knowing that and then leading into the community case, you know, we see that even when there are political cases involving a past president, that doesn't mean that it's necessarily going to lead to you. Unanimity and consensus. So, you know, I think the issues fracture the cases differently between the two cases, but, but no, I wasn't surprised to see that the justices were unanimous in the Anderson case,
Tim Kowal 15:12
another January 6 related case was Fisher versus United States. That was about a provision of the US Code that prohibits congressional obstruction, and the Supreme Court held that that did not apply to the January, January 6 defendants. And what I noted that seems surprising to me is that Justice Jackson joined the majority and justice Barrett dissented. Are you surprised at those defections.
Adam Feldman 15:42
So the outcome wasn't surprising. You know, I did think that there were some weaknesses to this case, and in terms of, you know, were the convictions going to be upheld in this way, you know, just from statutory interpretation. But you know, a lot of people were surprised by Justice Jackson. I was too at the outset, but then when I thought about it in some greater depth and thought about what her history was before she came to the Supreme Court, I think that gave a lot more insight into why she probably voted the way she did. You know, she has different past experiences than most of the other justices. She was a federal district court judge for quite a while. She was on the US Sentencing Commission, and she worked for the Office of the Public Defender. I think all of this background probably played into her conception of the case, and frankly, being a little bit friendlier to defendants based on the statutory section that they're convicted under and making sure that that's equitable, because I don't know that it's necessarily something that Jackson felt like these people didn't do something wrong, and so they shouldn't be held guilty. But she cared about the process, and I think it was a procedural question for her, and so right, in hindsight, I'm not surprised, but I was at the instance of seeing that boat breakdown.
Tim Kowal 17:04
I've heard a theory that that maybe Justice Jackson decided to join the majority because she wrote a separate concurrence, I believe correct, so that when she gave, you know, maybe an alternative roadmap to the lower courts in her concurrence, it would carry more weight as a concurrence rather than as a dissent. If there's any merit to that view,
Adam Feldman 17:24
I mean, it's, it's happened before, you know. I mean, the the older Justice Jackson has, the Justice Jackson, though, is on the court in the 40s and 50s. Yeah, he, he has, you know, concurrences that actually better are still looked at today, as you know, defining some of the cases that he looked at. So, you know, that's just a historic example that concurrences can have a lot of weight, but you have to find receptive judges below. And so the question is, are there judges that are going to receive that and find it to be persuasive? And you know, I don't think that we know that in advance. It's not like one of those opinions that, for me, stuck out as this is going to guide interpretation, necessarily. But having a middle road is always an interesting kind of outlet. So judges aren't caught either being siding with a dissenting side or siding with a majority that they disagree with you know you can kind of find that middle road so that can be powerful.
Tim Kowal 18:25
All right. The last one I wanted to ask you about is the Rahimi case. That's the case that held that, the Second Amendment case, and it applies the Bruin text, history and tradition test, and it held eight one that that test, under that test, the civil restraining order statute survives, along with its disarmament provision, so Rahimi had been found, found under under that statute, that statute applied to Rahimi, and therefore he'd been deprived of his of his firearms. And a lot of people note that this is maybe one of those cases where bad facts make interesting law anyway, because there are probably any number of other statutes that could have been applied to Rahimi to disarm him. He was committing a lot of public mischief. So a lot of I think that maybe the a common perception of the case is that this civil restraining order statute is the one thing standing in the breach that could protect us all from Rahimi. But, but instead, I thought, I still can't get over that justice, Alito, among all, joined the majority on this one, leaving Thomas as the soul of the center. Were you surprised by the breakdown or the result in this one?
Adam Feldman 19:33
I agree with you, Tim, that there, you know, that it could have been assumed, and I thought as well that Alito would be on the same side as Thomas in this case. And I agree also that with bad facts, right? You know, which is also suggestive of, you know, that there being some hiccup on the court in terms of case selection, because, like the FDA myth breastbone case, you know, it was this bad. X, right? I mean is that was a Preston was a, you know, as a standing argument that led to the unanimous decision where it wasn't decided on the merits. It was decided on just disability in Brahimi. And this is a bad guy, and I don't think anybody would have objected to that characterization, a guy that probably, you know, having a weapon was not a good thing for this guy, but it was, it was poorly played from the beginning, and that's why it was surprising to me that the case went to the Supreme Court. You know, if this was a due process argument, I think it would have had much stronger legs. You know, you talk about due process and how you can, you know, take away somebody's Second Amendment, right? When you know, without a full hearing, you know that that could be a problem. But when you take that out of the, you know, the argument, yeah, then, you know, then, then the question changes around, right? And so, you know, this was a bad guy, but you know, on the facts, you know he, he and the constitutional elements of it, you know the court was able to separate out having a second man right and and removing the gun right from this individual. So not the best case for for this issue. I wasn't surprised that Thomas dissented at all. I mean, he followed his process and methodology from Bruen, and I don't see Alito always buying into that. So, you know, this is the discrepancy between Thomas and Alito and Rahimi, is that I think they have different interpretive approaches, often landing them in the same place. And so, you know, I was surprised that Alito didn't do something separately in this case. But, you know, ultimately, I'm not surprised that he didn't join Thomas, because Thomas's approach is really something that he's going to stick, you know, stick by his guns. You know, he's that. I'm not surprised that he did that and that Toledo was not on the same side as him. But I could have, I would have expected it to be at least a seven two decision, not a not mate one,
Tim Kowal 22:05
yeah. And given, as we discussed the facts, these are bad facts, and the court, as I understand it, there were some other at least one or maybe more companion cases that the court did not decide. Just, did, you know, Grant, vacate and remands on the ascending and back down, saying, Look at Rahimi and or any of the various accompanying concurrences, and I don't know if, combined with the with the the bad facts of Rahimi and all of the various different approaches in the concurrences that that's is that really going to illuminate the lower courts who are trying to interpret Rahimi?
Adam Feldman 22:44
Mean, look, there are probably going to be more Second Amendment issues that are raised in the coming years. There was almost 100 year drought until, you know, until, like Heller and McDonald in the early 2000s where the Second Amendment issues just didn't come up for the Supreme Court. Now we've had, you know, in a small number of years, several of these cases. So the court is clearly trying to flesh out what Second Amendment means in contemporary times. And so I expect there to be more cases that get to these nuances. But I also see the court not wanting to have a second amendment heavy docket. And so you know, if they can get rid of other cases under previously decided cases, that I think they'll move to other related issues regarding the Second Amendment, and that's, that's what I'm seeing. They don't necessarily want to handle the same issues, but that, you know, we will see other Second Amendment issues come up. So I'm not surprised that we're seeing the GBR as the Grand vacant remands. And I think it just has to do with the court kind of moving on and trying to deal with different aspects of the same general area of law.
Tim Kowal 23:50
Yeah. So you don't think the Court is under any illusions after issuing Rahimi that, hey, we nailed it this time, that they know that they're going to get more of these?
Adam Feldman 23:59
Yeah, absolutely. And I think there you know that you have a court post Bruen that is really willing and almost wants to hash out some of these issues, because they've been poorly defined for a long period of time, and so there really isn't, or hadn't been, a lot of contemporary jurisprudence to Explain how the past can be reflected in the future. And so, so, yeah, you know, the Supreme Court is generally good about trying to provide guidance. It didn't provide great guidance in this case. And so, you know, I think we will see similar issues, although not the same one, come up within the next few years.
Tim Kowal 24:39
All right, well, we would be remiss if we didn't ask you about any Ninth Circuit related trends that you that you see coming down the pike, or that you spotted in the last term. Did you see? Did you spot any unusual reversal trends, for example, in the Ninth Circuit, I know for a long time the ninth. Circuit had a had a wrap as being the most overturned, the most reverse circuit. Now it is a very large circuit, but I also read that the rate happens to be down this term from prior terms. That is this all correct? And you have any opinions or conclusions to draw from these kinds of rates? Well, I
Adam Feldman 25:18
think it starts with this narrative that the Ninth Circuit's super liberal. You know, for a long time it was defined as the most liberal circuit. You have a mainly conservative Supreme Court, which has been mainly conservative for several decades now, more than several decades, right, more than a half century, has been predominantly led by conservatives. And so, you know, having that kind of fragment or difference of opinion between the ninth circuit and the Supreme Court, at least politically, has led to a lot of cases being overturned, and it did in the past, but post Trump, especially, you have a much more right leaning court Ninth Circuit than you did before, and you know, that kind of was reflected in this past term, where under 50% of its decisions were overturned. You know, generally, the Supreme Court, across all circuits, overturns 60 to 66% of of the cases before it, and there's a whole psychology of why it overturns more than firms. But you know the fact that the Supreme Court overturned fewer than 50% of cases from the Ninth Circuit this past term, and overturned more than 50% of cases from let's say the Fifth Circuit was kind of illuminating, that we're seeing some shifting going on the ninth circuit. If we look since 2005 has still been overturned. The decisions have been overturned about 75% of the time, so the odds of the court overturning a Ninth Circuit decision are much greater than they are affirming it. But we do see some change. We do see a more conservative Ninth Circuit than was the case before Trump. And you know, it ebbs and flows, whether you're looking at the ninth or fifth or other circuits there, you know, none of them have a line that is flat, that you have the same reversals across years. So they all kind of ebb and flow in waves. I think we'll continue to see that, because ultimately, it depends on the cases that the Supreme Court's taking from the circuits, and not necessarily on this circuit as a unity and and I think we'll see that reflected in in future years. The one thing about the Ninth Circuit, though, that is important to note is because it's the biggest circuit population wise, the Supreme Court tends to take the most cases from the Ninth Circuit out of all the all lower courts that it hears cases from so that hasn't changed much, but during this last summer and this summer, there were more grants from the Fifth Circuit than from the Ninth Circuit, prior to the Supreme Court coming back to meet in October, so we're seeing a shift to a heavier Fifth Circuit docket, lighter Ninth Circuit docket, and that's that's a trend that'll be interesting to follow, but in terms of overturning rates, you know, it's hard to say, and it really is case dependent, and not necessarily circuit dependent at this
Tim Kowal 28:11
point. Well, Adam, thank you for taking some time to come and do this post post mortem with us. I know this must be your busiest time of year for being called on to do all these, these, these postmortems of the court and try to pick apart what has happened and what's what does it all mean? When do you get to settle down and get back to doing, actually, the actual analytical work that you're famous for?
Adam Feldman 28:32
Oh, you know, it never settles down. It just comes in different shapes and sizes. So, yeah, I mean, for the next month and change, I'll be doing a lot of analysis on my own, but, you know, teaching is going to start up. And so, you know, there's always something there. It's kind of like Medusa you cut off, you know, one of the one of the snakes, and there are others that come in in its place. So there's always something that's going to be there.
Tim Kowal 28:58
Yeah? Okay, Jeff, I think that's going to wrap us up for today.
Jeff Lewis 29:02
Yeah, if you have ideas for future episodes of our podcast, please give us an email at [email protected] and look in future episodes for additional information about how to lay the groundwork for a successful appeal.
Tim Kowal 29:16
Okay, we'll see you next time you have
Announcer 29:18
just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes visit the California appellate law podcast website at Cal podcast.com that's c, a, l podcast.com thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again. Foreign.
