Baseball, Snowballs and Scalia at SCOTUS Arguments

for excessive force. There was a parade of hypotheticals from many of the geostice is who subscribed to originalism, that is, interpreting the Constitution based on its original meaning at the time was adopted. Here are jostice As, Clarence Thomas, Samuel Alito, and Neil Gorsuch. It's a baseball picture intentionally beans the batter. When we say, wow, that picture just seized the batter.

If someone is hit with a projectile and does not stop, let's say a rock, a snowball as a stone, would that be uh an arrest on a seizure under your analysis or your approach. There were bazookas going off there. There's all sorts of mass of show of force. But he doesn't stop. He keeps going. He's blasting through a hundred miles an hour, and he blasts through and on

he goes Zuoka is firing everywhere. Much of the questioning centered on a president Hodari v. California written by originalist icon Justice Anton and Scalia that said the application of physical force, whether or not it's subdued the arrestee, was sufficient for a seizure. Here are Justice is Brett Kavanaugh and Sonya So to mayor perspect to Hadari, I think there are two issues. First, was Justice Scalia right in the discussion? And then second is the precedent question on

the first question whether he was right. Um, you're arguing, as I understand it, the Justice Scalia and really all nine justices in that case, we're wrong about the original meaning of the Fourth Amendment. Excuse me, counsel, No, you're asking us two reject the clear line drawn by Herdari and say that Justice Scalia was wrong about what the common law showed. My guest is former federal prosecutor George

Newhouse of Richard's Carrington. George, the lower courts blocked the plaintiff from suing the police in this case, explain why the Fourth Amendment, which bars unreasonable searches and seizures, is so crucial to her case. Well, it's an interesting and unique question. And of course the ultimate legal question is did the police officer she's excessive forced in trying to stop her? But under the Fourth Amendment, is that a seizure when the police don't actually prevent you, stop you,

they don't lay hands on you. In this case, they shot at her car thirteen times and hit her twice, but she didn't stop. She kept on driving, and she drove, in fact, for another seventy miles, stole another car, and didn't get to the hospital until the next day. So the argument before the Supreme Court was whether or not she had been seized within the definition of the Fourth Amendment. That makes a difference because if she has a Fourth Amendment claim, rather than to do process claim, she has

an easier time establishing damages against the officers. So that's what the court was wrestling with, Is this a seizure? And there really is no case, no prior historical precedent that's on point. There were all kinds of unusual hypotheticals.

What were they trying to get at? We're trying to make an interesting point where and Alito actually also asked whether a person shot by a sniper a thousand yards away has been seized when the bullet enters their body, suggesting, of course, that he couldn't possibly believe that the answer would be yet, these were rhetorical questions, but they're trying to get at is normally for there to be a seizure, and police have to either lay hands on you, physically

restrain you for at least a moment, or issue an edict in halt, and you obey their command, and you are, in that sense detained or seized within the Fourth Amendment. And here neither of those occurred. They shot at her and tried to stop her, but you might put it this way, it was more of an attempted seizure. Had they shot her in the cart up, then there clearly would have been a seizure within the context of the

Fourth Amendo. So Chief Justice Roberts and Alito peppered the lawyer for the plaintiff with these interesting hypotheticals, including the one that if a batter is hit by a pitched ball, has the batter been seized? And of course the answer is non so for the original lists on the court. The plaintiff said that this is the ordinary meaning at the time of the Founders that back then seizure included seizures of goods and arrests. So why didn't the original

lists on the court seem to buy that argument. Well, the problem is that you have a factual situation that was not typical indeed contemplated at the time of the Founders. So the discussion during the oral argument was over a common law issues about when bailiffs and merry Old England would try to enforce debts. In some cases they would reach in through a window and grab the debt or and in that sense to restrain them, so that would

be a seizure. But here, as the Justice has pointed out, two years ago, there were no police and there were very few firearms being used in law enforcement. So this whole issue about when the police fire weapons and hits you, have you been seized within the definition of the Fourth Amendment seems clear to me based upon the oral argument that Aldo and the conservative textualists are going to be

disinclined to accept this argument. They're going to say, look, there only sees if you stop and you obey the command or your physically disabled, and neither of those occurred. Here. A huge point of contention in This argument was over an opinion by Justice Scalia from thirty years ago, where his reasoning supports the conclusion that this shooting was a seizure. So was the question whether that was dicta that doesn't

have to be followed. You're right that dicta, which is to say, is language in a court opinion that is not central or essential for beholding. And that's really the question about Scalia's opinion that odoris what happened in that case, of course, was a young and believed by the police to be engaged in a drug deal, and the police officer approached him, and like the woman in our case here, he took off running and the police officer ran after him, shouting,

and he did not stop. And while he was fleeing, he reached genders pocket and through the the rock of cocaine down on the ground. And the question was was he sees at the time that they drugs were disposed of? And the holding there was he was not. So there's language in the opinion that everyone agreed seems to apply to the case. But Scale's reasoning is not necessarily binding on the court, just because the facts of that case

are quite different. Really, as you know, Justice Scalia was a great example of a very conservative judge whose jurisprudence when it came to Fourth Amendment issues sometimes was very unpredictable. He would frequently rule against the police, and the Solicitor General's office was arguing in favor of the plaintiff and against the police officers. Here a remarkable turn and in fact, the Department of Justice position in Hodari was different than

it was in this case. So the Justice has asked her about whether or not Department of Justice was changing its position, which is a remarkable turnaround. So what's your take on how the justices might rule? Very hard to predict based upon the question's asset or arguments, how the justices are going to come out. So my prediction is if they look at this and they say, what did the framers have in mind when they use the word seized.

They didn't use the word struck, they didn't use other words that were broader, and the seizure again him the common law, the textualists would say, involves a direct touching of the officers or a command to stop that is obeyed, and lacking either of those two, this was not a seizure. It may have been an excessive use of force, but the Fourth Amendment requiring a seizure would not be implicated. And of course, at the moment the textualists have the votes.

That's probably whey the Supreme Court will come out. Thanks George. That's George Newhouse of Richard's Carrington coming up next. Female Supreme Court advocates are finding an unusual route to the High Court. I'm Jim Gross and you're listening to Bloomberg. Still hear argument this morning in case the United States Patent and Trademark Office versus Booking Dot com Ms Ross, Mr Chief Justice, and may it please the Court? Thank you counsel, uh Miss Tableton, Mr Chifssice, and may it

please the Court, Thank you counsel. Miss corkran three minutes for rebuttal, Thank you, your honor. So you hear the voices of more female attorneys at the Supreme Court than in past decades. Women advocates are still fairly rare at the Court, and the percentage of women attorneys has gone down since when it reached the highest in history. So many women are taking a less traditional route to the court.

Joining me is Kimberly Strawbridge, Robinson, Bloomberg Law Supreme Court reporter Gimberally, women argued between twelve percent and of the time in recent terms. That does seem fairly low compared to the number of women attorneys there are. That does. And actually, one thing that I think really hits at home for me is the court hands out these day call chiefs, and it's just with all the attorneys that

are going to be arguing in cases that day. And I remember there were more Jonathans who were arguing in the Supreme Court one day, there were three than women who are arguing just too. So I think that's just an example of how this really is kind of an imbalance between men and women in a place where it

really doesn't seem like there should be. Now, why has the traditional launchpad for Supreme Court women advocates than the Solicitor General's Office, Well, it's because the Solicitor General's Office argued so many more cases than any other entity or

law firm that comes before the justices. They tend to argue about half of the cases that come before the justices, and that's a lot of opportunities for arguments, and so we've seen traditionally that that's where men and women tend to get their first Spreme Court arguments is through that office, and that's maybe changing a little bit now. The number of cases argued by women has fallen in recent years. The high water mark was in sixteen and then it

started plummeting in seventeen. Why Well, there were a number of women who left the Solicitor General's Office, longtime veterans like Sarah Harrington and Nicole's the Harskey who have argued between them dozens of cases, and they left right as the Obama administration was heading out and the Trump administration was heading in. It seems like the Trump administration had some difficulty from getting women to join the office, but it does seem like they are making some strides in

that area. Now. We saw the first attorney to argue on behalf of the Solicitor General's Office this term was a woman making her first Supreme Court argument. So how are more private firms becoming a launchpad for women advocates at the Supreme Court. Well, we're seeing a handful of women advocates who are getting their first arguments not through

the Solicitor General's Office but in firm. And the women I talked to who had gone this route, said that it was a mark of achievement because it's hard to get a case in a firm because you not only have to convince your bosses that you're up to the death, but also the clients in a way that you don't have to when you're in the Solicitor General's office. So if we do see women arguing more cases from law firms, but again the numbers are still really out of whack.

Most attorneys who come from private practice are men and not women. I found this fascinating. The women you spoke to said, you not only need a mentor, but the mentor basically has to convince the client to let you argue that's right. And you know that was the one thing of all the women that I talked to you.

They all said, you need to have a mentor, and you need to have a mentor who will be willing to go to bad for you with the clients and who will be willing to let you work closely enough with clients that when the time comes to make deploy, for you to make the argument that the client is comfortable with you and letting you take on very high stakes argument. Speaking about how difficult it is just to

get a Supreme Court case. You spoke to Sarah Harris, who is going to have her first case before the Supreme Court next month, and she said that many Supreme Court practitioners would rather give up an appendage than an argument opportunity. So really you're fighting two different battles. It

does seem that way. And a lot of times we'll see a men from a particular firm arguing three or four or five cases in the term, and there won't be any women or any other attorneys from that term who argue in that year, although there certainly are a lot of other attorneys working on those cases. But that

does seem to be changing. We see a lot of men mentors who are really trying to change that, who understand that that is a problem and seek for ways to get other attorneys, not just women, to get arguments as well. Are many of the women who argued a lot of cases sort of the veterans, now are they

mentoring women? They are so. One of the women that I talked to in particular, that she was mentoring women like crazy, that there were so few women partners around that they really was up to her on her shoulders to mentor more than her fair share of them, But I think they all see it as an honor and not really a duty. All of them want to see more women in the Supreme Court space, and all of them want to help young lawyers to get there. Does one firm stand out as having more women in its

Supreme Court practice than others? While there are handful of law firms that seem to have gotten a leg up on this, and Williams and Connelly, which not only has Sarah Harris but has Leasa Black leading the way. We see Aaron Murphy from Kurt Crowne and Ellis who worked with the superstar of the Supreme Court, Paul Clement. And we see other places like Rick and Wilmer, Hale and Hoven and Level putting out not just women, but a lot of other diverse and young attorneys up at the

Spreme Court. Thanks Kimberly. That's Bloomberg Law Supreme Court reporter Kimberly Strawbridge Robinson. I'm June Grosso. Thanks so much for listening, and please tune into The Bloomberg Law Show every weeknight at ten BM Eastern on Bloomberg Radio m HM HM