Legal Docket: What words mean

MARY REICHARD, HOST: It’s Monday January 30th. Glad to have you along for today’s edition of The World and Everything in It. Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

Justice Brett Kavanaugh joined a Q&A keynote at the Notre Dame Law Review Federal Courts Symposium last week. The topic: the Administrative Procedure Act, a statute that governs federal agencies.

Students had questions. And not just about current jurisprudence in administrative law.

REICHARD: Right, Justice Kavanaugh also fielded questions on other topics. One student asked how his Catholic education shapes his legal perspective. He said his Latin instructor taught him to be prepared. His English teacher’s assignment of To Kill a Mockingbird helped him understand the importance of standing in someone else’s shoes. And his music teacher taught him this:

KAVANAUGH: Be not afraid. And that’s really important to be a judge. Be not afraid. Be not afraid to do the right thing. Be not afraid to adhere to your principles. Know that you’re going to get criticized.

Harder than it sounds, but of critical importance.

Now onto cases at the Supreme Court. And for that, my Legal Docket Podcast co-host Jenny Rough is here. Hi, Jenny.

JENNY ROUGH, REPORTER: Hi, Mary.

The court handed down its first decision of the term last week. The case concerned a U.S. Navy veteran who applied for disability benefits 30 years after an honorable discharge.

He’s eligible for benefits from the date he filed the claim. But he wanted the benefits to apply retroactively under a legal doctrine known as equitable tolling.

Justice Amy Coney Barrett wrote the 9 to 0 opinion and said equitable tolling did not apply here. She said there’s good reason to conclude Congress didn’t intend it to. The statute that governs here sets forth an exhaustive set of exceptions to the default rule—16 to be exact—and among them, you’re not going to find equitable tolling.

REICHARD: The court issued a DIG in the case I covered last week, In re Grand Jury. DIG is a legal acronym, DIG. It stands for dismissed as improvidently granted.

The case centered on the scope of attorney-client privilege.

Usually, a DIG happens because the court discovers a reason that makes the case unsuitable for deciding the question presented. But here, the court didn’t give a reason. So we’re left to speculate. Legal experts who have weighed in on this say the court may have decided: Let’s not try to fix something that isn’t clearly broken.

ROUGH: So far this term: one decision and one DIG!

Let’s turn now to the oral arguments the court continues to hear. I’ll cover two today. First: an immigration case.

And this one adds a thoroughly modern twist: the illegal immigrant in this case is a man who claims to be a woman: Leon Santos-Zacaria. He says he identifies as a transgender female, and that status is part of the case.

Transgenderism is frowned upon in Guatemala. And Santos-Zacaria testified to mistreatment, including assault and sought escape to the U.S., entering illegally twice, then both times deported.

Santos-Zacaria entered the country once again in 2018 and applied for what’s known as withholding of removal. A noncitizen can qualify for that if the applicant’s life or freedom would be threatened upon return to his or her country of origin.

An immigration judge denied the application and so did the Board of Immigration Appeals. Now appealed to the Supreme Court, the main legal question in the case winnows down to a technical point: Did Santos-Zacaria need to exhaust other remedies with the immigration board before appealing to the federal courts?

Justice Brett Kavanaugh immediately made reference to the text of the relevant law:

KAVANAUGH: This statute, at least on its face, speaks to the court, the court's power to review. This says "may review only if," not "if," "only if." This seems to speak to a court’s authority because it says a court may review “only if.” Does this language speak to a court’s authority?

Paul Hughes represented Santos-Zacaria and said that the statute’s language doesn’t strip a federal court of jurisdiction. Rather—

HUGHES: It directs actions courts take during review I don't think, though, that necessarily means it is a limitation on the power of the court.

Yaira Dubin argued on behalf of the federal government. She returned to the language of the provision to argue it most certainly does impose a jurisdictional limit on a federal court’s power to hear the case.

DUBIN: —providing that a court may review a final order of removal only if the alien exhausted all administrative remedies available as of right. That language speaks clearly to a court's authority, not simply to what a litigant must do. Congress need not use the word "jurisdiction," and there's no special rule for exhaustion requirements. Critically, this Court has never held that a restriction like this one is not jurisdictional.

She also pointed out that the Court has held that other language in the statute has been treated that way, including a provision that served as the basis for the wording in the one at issue. So this provision should be treated the same way. But Justice Sonia Sotomayor pressed her on that assumption.

SOTOMAYOR: But it didn't codify the exact language.

DUBIN: It codified almost exactly the same—

JUSTICE SOTOMAYOR: Yeah, you keep using the word "almost" in your brief also. But it didn't. That's the point.

There’s a circuit split here, heightening the uncertainty. But one thing is certain: Our government is overburdened with a high volume of immigration cases. A friend of the court brief filed by former immigration judges outlined the numbers. As of June 2022, the Executive Office for Immigration Review had 1.8 million cases pending in immigration courts. Five times the number from a decade ago. The Board of Immigration Appeals’ caseload has doubled in recent years. This case will affect how the government handles a broken system.

The second case involves a Turkish bank that laundered billions of dollars in violation of U.S. laws. The federal government went after the bank in a criminal prosecution, but the bank says it’s immune under the Foreign Sovereign Immunities Act. The Act provides immunity for civil actions against foreign sovereigns, but it’s unclear whether immunity extends to criminal prosecutions.

If not, a separate federal law gives district courts jurisdiction over all offenses against the U.S. But even so, the bank says that law granting jurisdiction comes from the Judiciary Act of 1789—and that law was originally intended to exclude jurisdiction over foreign governments.

That’s right. Another battle over a familiar term.

BARRETT: I mean, as we just said in the last case, the word "jurisdiction" is of many, many meanings.

That’s Justice Amy Coney Barrett at oral argument.

Lisa Blatt argued on behalf of the Turkish bank and said it is—and always had been—outlandish to think federal courts can convict sovereign countries, including the entities the government controls.

BLATT: The U.S. does not dispute that criminal trials against sovereigns were unthinkable in 1789, would violate international law today, are unprecedented anywhere, and would risk retaliation. But all the same is true for sovereign instrumentalities, which by definition are sovereign.

Justice Kavanaugh pointed out the broader context of diplomatic relations at play here, as indicated in the news.

KAVANAUGH: The news reports suggest this was discussed with President Erdogan, that Turkey's foreign minister is coming to the United States this week. I mean, I don't know about all of that. But I do know that we don't know about all of that.

BLATT: Yeah. But I know that you shouldn't let 12 Manhattan jurors figure this out, which is what you're doing. You're letting them go to a jury and put a foreign sovereign on trial.

Blatt said to allow that is offensive to international law and insulting to the sovereign.

But when Deputy Solicitor General Eric Feigin argued on behalf of the federal government, he said the immunity granted to foreign states doesn’t extend to conduct by a business that happens to be majority-owned by a foreign government. Otherwise, government-owned corporations could conceal all sorts of serious crimes.

FEIGIN: Petitioner is asking for an extraordinary and unprecedented rule under which any foreign government-owned corporation could become a clearinghouse for any federal crime, including interfering in our elections, stealing our nuclear secrets…

Justice Barrett asked about the consequences of allowing the criminal prosecution to go forward. Here she is in an exchange with Feigin about that, edited for time and clarity.

BARRETT: Could you explain why—I mean, given that the government has the authority to prosecute the individuals, like, you know, the executives at the bank, what does the government get out of going after the bank as opposed to all the individuals who work in the bank?

FEIGIN: What we want to do is to deter other government-owned corporations from these kinds of actions, deter, frankly, other governments from trying to use corporations to do these kinds of things.

BARRETT: What about the retaliatory consequences that could result in the other way? The United States is not concerned about those, about foreign countries initiating criminal actions against U.S.-owned corporations?

FEIGIN: It's not like we undertook this lightly. But, you know, we acknowledge that what's good for the goose is good for the gander. We've considered that, and we're prepared to deal with it.

The stakes are high here, and the court has a lot to wrestle with.

That’s this week’s Legal Docket. I’m Jenny Rough.

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