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Justices appoint lawyer to argue restitution case in the fall

<img src="https://api.follow.it/track-rss-story-loaded/v1/PIf3XlXfqmpOk8RU-KbVrXn9ye8UNv30" border=0 width="1" height="1" alt="Justices appoint lawyer to argue restitution case in the fall" title="Justices appoint lawyer to argue restitution case in the fall"> <p>A former clerk to Justice Antonin Scalia and then-Judge Brett Kavanaugh was tapped on Thursday to defend a lower court ruling before the Supreme Court this fall in a Georgia man’s challenge to the federal government’s efforts to collect restitution from him. </p> <p>The Supreme Court appointed <a href="https://www.quinnemanuel.com/attorneys/bash-john/">John Bash</a>, a former assistant to the U.S. solicitor general who has argued 10 cases in the court to argue <em><a href="https://www.scotusblog.com/cases/case-files/ellingburg-v-united-states/">Ellingburg v. United States</a></em> as a “friend of the court” in support of the judgment of the U.S. Court of Appeals for the 8th Circuit — which ruled for the government — because the federal government has opted not to defend that court’s reasoning. </p> <span id="more-528674"></span> <p>Holsey Ellingburg, who was sentenced to nearly 27 years in prison and ordered to pay restitution for his role in a bank robbery in Georgia, is challenging the government’s efforts to try to collect restitution from him under a 1996 law, the Mandatory Victims Restitution Act, that extends criminal defendants’ liability for restitution. </p> <p>The question before the court is whether restitution under the MVRA is a civil remedy or, as Ellingburg argues, is instead the kind of punishment that can violate the Constitution’s ex post facto clause, which prohibits laws that retroactively increase the punishment for a crime or criminalize conduct that was legal when it occurred. </p> <p>A federal appeals court in St. Louis rejected Ellingburg’s challenge, concluding that restitution is a civil remedy. Ellingburg then went to the Supreme Court, which agreed last month to weigh in. </p> <p>In a brief filed in February, the federal government had urged the justices to deny review. Although it acknowledged that the federal courts of appeals are divided on the question whether restitution under the MVRA is a criminal punishment and therefore subject to the ex post facto clause, the government insisted that, regardless of whether the MVRA is a criminal punishment or not, “almost every court of appeals to consider the issue would have reached the same result as the Eighth Circuit in this case” – that there is no violation of the clause. Therefore, the government posited, Ellingburg would lose in any event. </p> <p>In a letter filed on May 12, U.S. Solicitor General D. John Sauer informed the justices that the federal government would no longer “defend the rationale of the court of appeals’ decision” – that is, “whether restitution under the MVRA is criminal punishment for purposes of the Ex Post Facto Clause.” </p> <p>Because the federal government was no longer defending the 8th Circuit’s rationale, the justices selected Bash to do so instead. Bash is currently a partner in the Austin office of Quinn Emanuel; he has also served (among other things) as the U.S. Attorney for the Western District of Texas. In April, Bash announced that he would run for attorney general of Texas – the position currently held by Ken Paxton, who is running for U.S. Senate. But Bash <a href="https://www.texastribune.org/2025/04/30/texas-attorney-general-race-john-bash-exit/">withdrew from the race</a> less than three weeks later, citing a family health scare. </p> <p>The practice of appointing an outside attorney is not an unusual one; indeed, the justices have historically done so once or twice per term. But during the 2024-25 term they appointed five outside attorneys to argue as “friends of the court,” and they have already appointed three attorneys in the nine cases currently slated for argument during the 2025-26 term: Charles McCloud in <em><a href="https://www.scotusblog.com/cases/case-files/barrett-v-united-states-2/">Barrett v. United States</a></em>, Kasdin Mitchell in <em><a href="https://www.scotusblog.com/cases/case-files/bowe-v-united-states/">Bowe v. United States</a></em>, and Bash in this case. </p> <p>And the court could soon add a fourth appointed attorney for the upcoming term. On Monday, the federal government told the Supreme Court that it would not defend <a href="https://www.scotusblog.com/cases/case-files/republican-national-committee-v-genser-2/">a ruling by the</a> U.S. Court of Appeals for the 6th Circuit that upheld a federal campaign finance law limiting the expenditures by political parties in coordination with candidates for office. Sauer suggested that the justices appoint an outside attorney to defend that ruling by the federal appeals court.</p> <p>The post <a href="https://www.scotusblog.com/2025/05/justices-appoint-lawyer-to-argue-restitution-case-in-the-fall/">Justices appoint lawyer to argue restitution case in the fall</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>

mingooland · · 4 min read
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Politics

The quiet radicalism of Justice Souter

<img src="https://api.follow.it/track-rss-story-loaded/v1/oS4yzlmmpHZdc5gGKGTUAXn9ye8UNv30" border=0 width="1" height="1" alt="The quiet radicalism of Justice Souter" title="The quiet radicalism of Justice Souter"> <p><em>This article is <a href="https://www.scotusblog.com/category/tributes-to-justice-david-souter/">part of a series</a> on the legacy and jurisprudence of the late Justice David Souter. </em></p> <p><em>Charles Barzun is a Professor of Law at the University of Virginia, where he teaches Constitutional Law, Evidence, Jurisprudence, and Torts. He is currently working on a book on the American common law tradition. </em></p> <p>I met Justice Souter only once, in the summer of 2019. He agreed to meet with me to discuss the ideas in a law review <a href="https://www.virginialawreview.org/wp-content/uploads/2018/06/104VaLRev655.pdf">article</a> I had written about his judicial philosophy. When I arrived to meet him for lunch at a restaurant in Concord, N.H., he was already there, waiting for me. It turned out we were the restaurant’s only customers that afternoon. Our conversation lasted about two and a half hours, touching on everything from Souter’s time as a New Hampshire trial judge to the philosophy of Oliver Wendell Holmes, Jr.</p> <span id="more-528662"></span> <p>In the obituaries following his death on May 8, Souter has been described as a temperamentally moderate, “common law” judge. Although appointed by a Republican president, he famously frustrated conservatives and was also <a href="https://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html">criticized</a> by liberals for practicing a “defensive-crouch” approach to constitutional interpretation. No doubt his quiet and unassuming personal manner only further confirmed his reputation for caution and moderation. </p> <p>That description is not wrong. But it is incomplete. For there was a lurking radicalism in Souter’s brand of common law judicial philosophy. I do not mean radical in the political sense, but rather in a deeper, jurisprudential sense. Souter recognized more openly than many judges today the way in which legal reasoning and often-changing social values are dependent on one another. </p> <p>One can catch a glimpse of this aspect of Souter’s philosophy in some of his most famous opinions. In these opinions, Souter broke free of some of the conventional norms governing Supreme Court argument, often adopting the voice less of a judge than that of a historian or sociologist. Consider a few examples: </p> <p>In his 1997 opinion for the court in <em><a href="https://supreme.justia.com/cases/federal/us/519/172/">Old Chief v. United States</a></em> interpreting the Federal Rules of Evidence, Souter offered an expansive view of what counts as “relevant” evidence at trial. <strong>“</strong>A syllogism is not a story,” he observed, so prosecutors are permitted to introduce facts that establish the “human significance” of the facts of the crime. Some evidence-law <a href="https://repository.uclawsf.edu/hastings_law_journal/vol49/iss2/11/">scholars</a> accused Souter of licensing the introduction of prejudicial evidence, pure and simple.</p> <p>In his long dissent in <a href="https://supreme.justia.com/cases/federal/us/517/44/#tab-opinion-1959855"><em>Seminole Tribe of Florida v. Florida</em></a>, Souter took a similarly broad view of relevance when it came to traditional legal reasoning. So much so, in fact, that Chief Justice William Rehnquist, writing for the majority, chastised Souter for doing a “disservice to the Court’s traditional method of adjudication.” The chief was referring to Souter’s argument that an 1890 Supreme Court decision lacked precedential authority because what had really explained its holding that Louisiana was immune from suit was the court’s inability to enforce its own judgments in the post-Reconstruction South, not the <em>legal</em> reasons the court had offered in its written opinion. </p> <p>Finally, in the most controversial opinion he helped author, <em><a href="https://supreme.justia.com/cases/federal/us/505/833/">Planned Parenthood v. Casey</a></em>, which upheld “the central holding” of <em><a href="https://supreme.justia.com/cases/federal/us/410/113/">Roe v. Wade</a></em>, Souter authored the part of the decision that explained why <em><a href="https://supreme.justia.com/cases/federal/us/163/537/">Plessy v. Ferguson</a></em> (upholding segregation) had been properly overruled but why <em>Roe</em> should not be. Souter contended that while societal understandings of race had shifted dramatically between <em>Plessy</em> and <em>Brown</em>, no comparable transformation had occurred regarding the facts surrounding abortion since <em>Roe.</em></p> <p>Although these cases span different areas of the law, they are all united by a common thread. Souter was convinced that when we reason through hard legal questions (whether as lawyers, judges, or citizens), our assessment of the relevant facts and legal principles reflects our values, and our values reflect the society in which we live. On this view, social change, moral values, and legal reasoning all interact with one another. </p> <p>That view does not entail moral relativism since not every societal shift reflects a gain in understanding. But it does mean that law admits of no absolutes because everything is potentially revisable in light of future experience. As Souter once put it in a commencement <a href="https://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/">speech</a>, there are “no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.”</p> <p>At a time when most current Supreme Court justices, and many federal appellate judges, profess fidelity to originalism, such frank acknowledgement of the constitutional consequences of societal change by members of the federal judiciary is increasingly rare (though it has not disappeared <a href="https://www.law.nyu.edu/news/david-barron-madison-lecture-2022">completely</a>). When the court made its momentous decision to overrule <em>Roe</em> in <a href="https://supreme.justia.com/cases/federal/us/597/19-1392/#tab-opinion-4600822"><em>Dobbs v. Jackon Women’s Health Organization</em></a>, it did not do so on the ground that our understanding of the facts had changed. It held that <em>Roe</em> had always been wrong. </p> <p>I must admit, I find it hard not to hunger for absolutes these days, when the Constitution seems to be undergoing a 24/7 stress test. But it is during precisely such times that the recognition of our dependence on societal understandings is so important. For liberty only lasts as long as people want it and know how to hold onto it. That’s why it was in the context of a <a href="https://www.youtube.com/watch?t=320&v=rWcVtWennr0&feature=youtu.be">discussion</a> in 2012 on the failings of civic education that Souter made a comment that would later seem so prescient: “The day will come when somebody will come forward and we and the government will in effect say ‘take the ball and run with it,’ ‘do what you have to do.’ That is the way democracy dies.” </p> <p>As we were leaving lunch that day (after telling me that he had enjoyed my “interrogation”), I asked the justice if we might persuade him to come down to Charlottesville to give a talk at the law school sometime. He said that was doubtful because he did not travel much. But then he added, with a wry smile, “But there are no absolutes.”</p> <p>The post <a href="https://www.scotusblog.com/2025/05/the-quiet-radicalism-of-justice-souter/">The quiet radicalism of Justice Souter</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>

mingooland · · 6 min read
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Politics

The morning read for Tuesday, May 20

<img src="https://api.follow.it/track-rss-story-loaded/v1/X9yB1RqZeWQhGeGScpSLpnn9ye8UNv30" border=0 width="1" height="1" alt="The morning read for Tuesday, May 20" title="The morning read for Tuesday, May 20"> <p>Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Tuesday morning read:</p> <ul class="wp-block-list"> <li><a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-allows-trump-revoke-protected-status-thousands-venezuela-rcna205657">Supreme Court allows Trump to revoke protected status for thousands of Venezuelans</a> (Lawrence Hurley, NBC News)</li> <li><a href="https://www.reuters.com/world/us-supreme-court-may-broaden-religious-rights-looming-rulings-2025-05-19/">US Supreme Court may broaden religious rights in looming rulings</a> (John Kruzel, Reuters) </li> <li><a href="https://www.newsweek.com/supreme-court-ketanji-brown-jackson-maga-biden-2074344">Supreme Court Justice Ketanji Brown Jackson Comes Under MAGA Fire</a> (Sonam Sheth, Newsweek)</li> <li><a href="https://www.theatlantic.com/ideas/archive/2025/05/birthright-citizenship-trump-supreme-court/682823/">Trump Is Tired of Courts Telling Him He’s Breaking the Law </a>(Adam Serwer, The Atlantic) </li> <li><a href="https://www.billboard.com/pro/ed-sheeran-supreme-court-reject-lets-get-it-on-lawsuit/">Ed Sheeran Tells U.S. Supreme Court to Reject ‘Let’s Get It On’ Copyright Case Over ‘Thinking Out Loud’</a> (Bill Donahue, billboard) </li> </ul> <p><strong>Coming up:</strong> On Thursday, May 22, the court expects to issue one or more opinions from the current term. We’ll be live at 9:30 a.m. EDT that day for the opinions.</p> <p>The post <a href="https://www.scotusblog.com/2025/05/the-morning-read-for-tuesday-may-20/">The morning read for Tuesday, May 20</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>

mingooland · · 1 min read
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Politics

Kemi’s Tories drop to 4th

Listen on Spotify Apple Music Amazon Music Sky News Sky News’ Sam Coates and Politico’s Anne McElvoy serve up their essential guide to the day…

mingooland · · 1 min read
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Politics

Supreme Court allows Trump to end protected status for group of Venezuelan nationals

<img src="https://api.follow.it/track-rss-story-loaded/v1/J6McVD6I3pFW5YhZFdmBxXn9ye8UNv30" border=0 width="1" height="1" alt="Supreme Court allows Trump to end protected status for group of Venezuelan nationals" title="Supreme Court allows Trump to end protected status for group of Venezuelan nationals"> <p>The Supreme Court on Monday cleared the way for the Trump administration to end the protected status of hundreds of thousands of Venezuelan citizens living in the United States. In <a href="https://www.supremecourt.gov/orders/courtorders/051925zr1_5h26.pdf">a brief unsigned order</a>, the justices paused a ruling by a federal judge in San Francisco that had blocked Kristi Noem, the Secretary of Homeland Security, from terminating the protection. </p> <p>The justices left open the possibility that individual Venezuelan citizens could bring their own challenges to Noem’s efforts to terminate their work permits or to remove them from the United States. </p> <span id="more-528649"></span> <p>Justice Ketanji Brown Jackson indicated that she would have denied the government’s request and left the lower court’s ruling in place while litigation continues. </p> <p>Alejandro Mayorkas, then the DHS secretary, initially designated (and later extended the designation of) Venezuela in 2021 as a country whose nationals in the United States were eligible to stay in the United States and work under a program known as the Temporary Protected Status program. Created in 1990, the program gives the DHS secretary the power to make such designations when a country’s citizens cannot return safely to their home country because of a natural disaster, armed conflict, or other “extraordinary and temporary conditions” there. </p> <p><a href="https://www.scotusblog.com/cases/case-files/noem-v-national-tps-alliance/">The dispute before the Supreme Court</a> arose earlier this year, when Noem announced the termination of the TPS designation (along with its extensions) for a group of over 300,000 Venezuelan nationals. </p> <p>That announcement prompted the plaintiffs in this case to go to federal court in San Francisco, seeking to postpone the termination. Senior U.S. District Judge Edward Chen granted that request, calling Noem’s conduct in seeking to lift an existing TPS designation “unprecedented.” Chen also suggested that Noem had relied on “negative stereotypes” about Venezuelan migrants in determining to end the designation. </p> <p>When the U.S. Court of Appeals for the 9th Circuit declined to put Chen’s order on hold while the government appealed, the Trump administration came to the Supreme Court. U.S. Solicitor General D. John Sauer told the justices that the TPS program “implicates particularly discretionary, sensitive, and foreign-policy-laden judgments of the Executive Branch regarding immigration policy.” Moreover, he added, federal immigration law bars the courts from reviewing the secretary’s determination. </p> <p>The Venezuelan TPS beneficiaries urged the justices to leave Chen’s order in place. Pausing it now, they wrote, “would cause more harm than it would prevent, inflicting massive injury on” them “through lost employment and widespread deportations to an unsafe country.” Doing so would be particularly unnecessary, they emphasized, when the government has not shown that it would be harmed by leaving Chen’s order in effect while its appeal moves forward in the 9th Circuit, which has fast-tracked the case and set argument for mid-July. </p> <p>More than a week after the briefing in the case was completed, the justices issued a one-page order putting Chen’s order on hold while the government’s appeal continues through the 9th Circuit and, if necessary, the Supreme Court. </p> <p>The justices are still considering <a href="https://www.scotusblog.com/cases/case-files/noem-v-doe/">another emergency appeal by the Trump administration</a> stemming from its efforts to revoke parole – that is, permission for noncitizens to stay in the United States for humanitarian or public interest reasons – for more than 500,000 noncitizens from Cuba, Haiti, Nicaragua, and Venezuela. </p> <p>The post <a href="https://www.scotusblog.com/2025/05/supreme-court-allows-trump-to-end-protected-status-for-group-of-venezuelan-nationals/">Supreme Court allows Trump to end protected status for group of Venezuelan nationals</a> appeared first on <a href="https://www.scotusblog.com">SCOTUSblog</a>.</p>

mingooland · · 3 min read
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