Boom! Lawyered: Supreme Court Edition

If 'Roe' Falls Family Separation

Boom! Lawyered: Supreme Court Edition Boom! Lawyered.

Boom! Lawyered: Supreme Court Edition

Imani Gandy

This time, we thought we’d unravel the mystery that is the U.S. Supreme Court.

Oh, hello again!

It’s your friendly neighborhood lawyers, Imani and Jess—aka #TeamLegal—back with another edition of Boom! Lawyered. This time, we thought we’d unravel the mystery that is the U.S. Supreme Court.

Those of you who didn’t go to law school—and again, truly a great decision!—likely still have some understanding about how the Supreme Court works. You know there are nine justices. You know that the cases that reach the Court are of enormous importance, and you probably know that it’s rare for the Court to even bother hearing a case. But maybe you don’t know why that is. Maybe you don’t know how those cases got to the Court in the first place. Maybe the word “certiorari” freaks you out. It used to freak us out too, especially because we could never seem to manage to spell it without looking it up. We can now, though. See?

CERTIORARI.

Hot damn, we’re good!

But we digress.

Let’s go back to that sex tape kerfuffle. (If you need to watch the Magic Mike XXL video again, now is the time.)

So remember how you and your boyfriend made that sex tape all those years back? And then he threatened to release it? But you were all, “hell no,” and sued him, and won an injunction?

Then much later, y’all made up because you’re into giving second chances. You got married, and even had a blissful life for a couple of years, before it all went to shit again. So you divorced. Agreed on a settlement. And after the judge signed the consent decree, you were free at last.

Your ex, however, is a bitter bastard. He knows he can’t release the sex tape without facing jail time, fines, or other legal consequences—also known as contempt of court—because he is still bound by the permanent injunction. So he decides to post a bunch of nude portraits of the two of you to his personal website.

See, back when you were happy and carefree, the two of you decided to take erotic portraits, both of you naked and in various tasteful positions of repose. You were hesitant at first, but since you and your ex decided to do it together, you figured there was mutually assured destruction built in: The world would see both of you in the buff if he ever published them. And would he really want the world seeing his junk?

The answer, apparently, is yes. You underestimated how much your ex wants to publicly embarrass you. He doesn’t mind if the world sees his nether regions, as long as it sees yours too.

You ask him to please take down the photos, but he refuses. So you lawyer up, yet again, and decide to sue him in Anystate federal court.

(Where is Anystate, you might ask? It’s lodged between This State and That State Over There.)

Your lawsuit alleges multiple claims, including that your ex-husband violated Anystate’s brand-spanking-new revenge porn statute. In response, he claims that publication of the photos is protected by the First Amendment. And besides, he says, he’s naked in them too, so what’s the big deal? He argues that Anystate’s revenge porn statute is unconstitutional.

You retort that you don’t want the entire world gawking at your jiggly bits, and that he has invaded your privacy and caused you emotional distress.

After about a year of litigation, the Anystate district court judge rules in your ex-husband’s favor. Publishing the photos was protected free expression, according to Judge Judy, and the revenge porn statute is an unconstitutional infringement on your ex’s First Amendment rights. Too bad for you. Everyone gets to keep looking at your boobs.

Unsatisfied with this result, you decide to file in the federal court of appeals that sits in the circuit encompassing your state.

But wait, you might be asking: What’s a circuit?

Good question.

The federal appellate court system is split up into twelve regions or “circuits” throughout the country. There’s the First through the Eleventh, along with the D.C. Circuit Court of Appeals, which hears appellate cases filed in Washington D.C. The number of judges on the bench varies from circuit to circuit. (There’s one more circuit court of appeals, the Federal Circuit, but its jurisdiction is based on subject matter, not geographical region. That court primarily hears appeals for patent law cases, along with other appeals from various administrative agencies.)

Here’s a handy map that will tell you what circuit encompasses the state you live in.

Let’s pretend, for the purposes of this exercise, that Anystate sits in the Ninth Circuit, along with California, Arizona, Nevada, Idaho, Oregon, Montana, Alaska, Hawaii, and Washington.

After you file your appeal with the Ninth Circuit Court of Appeals, a panel of three judges is randomly selected to hear the case.

That panel reviews your case and affirms Judge Judy’s lower court ruling: It rules that the publication of the photos is protected free expression, and that Anystate’s revenge porn statute is unconstitutionally broad. You lose again.

You and your lawyers confer on what your next step should be. You can either (1) ask the same three-judge panel to rehear your case by filing a “petition for rehearing”; (2) ask the “full bench” of judges—which, according to the rules of procedure governing the Ninth Circuit, only needs to consist of 11 judges even though the Ninth Circuit has 29—to rehear your case by filing a “petition for rehearing en banc”; or (3) head straight to the U.S. Supreme Court.

A court won’t rehear a case en banc unless it determines the case relates to a question of “major importance,” or if the panel opinion contradicts existing law or precedent. For example, if a Ninth Circuit panel ruled in a different case that publishing the sort of photos your ex did is a violation of copyright law and an invasion of privacy, that would constitute enough of a conflict to warrant an en banc rehearing. Usually, however, appeals courts don’t bother rehearing a case en banc. Judges are busy, and it can be a hassle to get them all together in one place at one time.

You decide that asking for a rehearing en banc is what you want to do next, so you file that petition. Unfortunately, the Ninth Circuit denies it.

At that point, you usually have 90 days to ask the U.S. Supreme Court to take the case by filing a petition for writ of certiorari, or “cert petition.” The Court may decide to grant you up to an extra 60 days to file your cert petition if you ask for an extension and have a good reason for doing so.

Your cert petition will lay out the history and facts of your case, and why you think the Supreme Court should hear it. Your petition should include the Anystate District Court order, the Ninth Circuit’s order, and all findings of fact and conclusions of law. Essentially, you should lay all of your cards on the Supreme Court’s table in order to convince them to hear your case.

The Supreme Court receives nearly 8,000 cert petitions a year, and they grant and hear oral arguments on about 80. That should give you an idea about how rare it is for the Supreme Court to hear a particular case.

You want to tailor your petition to grab the Court’s attention. In this case, you’re lucky, because there’s a circuit split on the revenge porn issue, and if there’s one thing the Supreme Court loves to do, it’s resolve circuit splits.

Let me explain.

The Ninth Circuit ruled against you and said that publishing the nude portraits on a personal website is a protected expression of speech under the First Amendment. But in your cert petition, you point out that there was a virtually identical case out of a sister circuit—and in that case, the court reached the opposite conclusion.

That case involved similar facts: A man living all the way across the country in Otherstate posted nude portraits of himself and his wife to his personal website. His wife filed a lawsuit in federal court, and the case ended up in the Second Circuit Court of Appeals. The Second Circuit ruled that the publication of the photos was a violation of the ex-wife’s privacy.

So now we have a situation where in Otherstate—and in New York, Connecticut, and Vermont, which also sit in the Second Circuit—individuals are not permitted to post nude photos of themselves and their partners online without consent because it would invade their partner’s privacy. But in the Ninth Circuit, such nude photos are legal as protected speech.

In your cert petition, you point out that the First Amendment rights at issue are too important to have disparate rulings from different courts of appeals. These disparate rulings are called a “circuit split.” You know that pointing out the circuit split is your best shot at getting the Court to take the case so the justices can make the law uniform across the country, or, in legalese, “resolve the circuit split.”

Upon receiving notice that you’ve filed your cert petition, your ex may—but does not have to—file “a brief in opposition to a petition for a writ of certiorari.” In his opposition brief, he can make his arguments about why there’s really no reason for the Court to hear the case. It’s just a mundane dispute between jilted lovers.

Your ex-husband also may decide not to contest the cert petition, essentially waiving his right to respond. (The Court may still ask that he respond if it needs more information to come to a decision.)

Finally, your ex may decide that he wants the Supreme Court to hear the case, for whatever reason. In legal terms, he has decided to “acquiesce” to the Court hearing the case.

Ultimately, your ex decides to oppose the cert petition. He has 30 days from the date you filed it to do so. (Just like you were able to ask for an extension, your ex can too.)

After your ex files his opposition brief, you can file a reply brief if you choose to, in which you will counter all of the points that your ex just made. You don’t have to file one, but you probably want to, since you want to have the last word.

Before the Supreme Court decides whether or not to accept your cert petition, third parties that have an interest in the outcome of the case can file amicus briefs. These parties are called amicus curiae (if the third party is an individual) or amici curiae (if the third party is a group of individuals)—Latin for “friend, or friends, of the court.” At this stage in the process, the only amici who file briefs are those who agree with you that the Court should review your case. There are specific rules with respect to the timing of brief filing, but there’s no need to get into that here.

The cert petition—along with the opposition brief, the reply brief, and the amicus briefs, if any of those were filed—are circulated to the justices’ chambers. Usually, a law clerk in one or more of the justices’ chambers will review all of the documents and draft a memo outlining the facts of the case, including a recommendation as to whether it should be heard.

In your case, the justices review the memo and decide that it is worth more discussion. They add it to the “Discuss List,” for their next conference, a private meeting held about once a week.

At the conference, the justices will vote on whether not to hear your case, using what has come to be known as the “Rule of Four.” That means if four justices vote to grant “certiorari”—Latin for “to be informed of”—you will get the chance to argue your case before the Court.

The Court will announce that it has decided to review your case as part of an orders list, which tend to be released on Monday morning after the conference.

And then the fun begins. You file a brief explaining why you should win the case. Your ex-husband files a brief explaining why he should win the case. U.S.-ians for the First Amendment files an amicus brief regaling everyone about the importance of free speech and how revenge porn statutes like Anystate’s chill it. The National Anti-Revenge Porn Institute files an amicus brief backing your position—that allowing these sorts of leaks of prurient photos are part of the harassment and abuse that women face online every day. Twenty-five other organizations file briefs backing your ex-husband’s position. Thirty-two file briefs backing yours. (If you think this seems excessive, consider that in Whole Woman’s Health v. Hellerstedt, the big abortion case set for oral arguments next Wednesday, 45 amicus briefs alone have been filed backing Whole Woman’s Health.)

The Court sets a date for oral arguments, generally heard between October and April. On the day the Court is scheduled to hear your case, your lawyer will argue for an hour, and your ex-husband’s lawyer will argue for an hour. Your lawyer will go first since you filed the cert petition. During oral arguments, the justices will ask questions of your lawyer in order to clarify her position. They will do the same with your ex-husband’s lawyer. (And Justice Clarence Thomas won’t ask either lawyer a damn thing because he is notorious for his silence on the bench.)

After oral arguments are over, you might wait for months before you get a decision. The Court may reverse the Ninth Circuit’s ruling, which means you win. The Court may affirm the ruling. Or the Court may “vacate” the ruling—in other words, nullify it—and remand the case. In other words, the justices will send it back to the Ninth Circuit with instructions to re-examine it, based on various principles set forth in the Supreme Court’s ruling.

If the Court rules in your favor, depending on how broad the ruling is, then that settles the issue not only for you, but for everyone in the country. So let’s say that the Court rules broadly that posting nudes without consent is an invasion of privacy; then every other woman who is out there battling some revenge-porn asshole can immediately go to court in whatever state they live and say “See? The Supreme Court says I should win.” And then they will win.

Of course, sometimes the Supreme Court rules narrowly, and lower courts can finagle their way around it if, for example, the events leading to one lawsuit are different than the ones in a case the Supreme Court considered.

Whether the Court rules for or against you, that ruling stands. The case is over. Either you’ve won, or you’ve lost.

If the Court vacates the ruling and sends the case back to the Ninth Circuit, the Ninth Circuit will reconsider it based on what the Court said in its ruling. The circuit court might rule against you again. Or it may change its mind and rule in your favor.

If the Ninth Circuit rules in your favor this time, then your ex-husband can file a cert petition with the Supreme Court if he so chooses and appeal that ruling. If the Ninth Circuit rules against you again, you can file another cert petition. That’s what happened in Fisher v. University of Texas: The Court heard the case in 2013 and remanded it back to the Fifth Circuit Court of Appeals for review. When the Fifth Circuit ruled against Abigail Fisher a second time, she filed another cert petition, which the Supreme Court granted. The second round of oral arguments were heard last year in December, and the Court will issue another ruling in the case, probably by the end of this term in June.

So there you have it, dear readers. You now know everything you need to know about the inner workings of the Supreme Court. See? It’s not that bad. We lawyers just like to make everything seem complicated so we can feel important.

But #TeamLegal is here to help you understand how the law and courts work so you can impress a bunch of pompous lawyers with your vast knowledge.

Why are we doing this? It’s because we care about you. And because oral arguments for one of the biggest abortion cases in a decade are set for this upcoming Wednesday. So spread your knowledge far and wide, and we’ll be back in two weeks to continue your education.