Reactions to Turner v. Rogers Oral Arguments

It’s been a little over a week since the United States Supreme Court held oral arguments for Turner v. Rogers. This evening I sit down to look at what happened and what is likely going to happen in the case.

First, let me note that you might have an interest in hearing the audio from oral arguments. You can download that here and the transcript here. As the audio shows, all three attorneys (the petitioner, respondent, and counsel for the Solicitor General) argued quite well. The petitioner’s counsel during arguments was Seth Waxman, who has quite a distinguished reputation when it comes to Supreme Court litigation. He’s currently employed by WilmerHale and does lots of things for them including representing clients before the Court. Respondents’ counsel was Stephanos Bibas. Mr. Bibas arguably has an even more distinguished reputation; though he’s a bit younger than Mr. Waxman, he was a law clerk to Justice Kennedy and is widely considered one of the top scholars in criminal law and procedure. He taught at my alma mater for a few years and he currently heads up the University of Pennsylvania Law School’s Supreme Court clinic.

The styles of these two in their arguments, which is quite discernable in the audio, is captivating. While Mr. Waxman had a very conversational approach with the bench (not surprising given the over 25 cases he’s argued in the Supreme Court), Mr. Bibas took a tone reminiscent of a public speech. Throughout the arguments, the way Mr. Bibas answered had a distinctly professorial flavor to it– as if he was teaching the Court about law.

Both speakers held their own and made their points well. But what did the justices think of those points?

That is where I start to become concerned. Of the 9 justices, I got the impression that only Justice Kagan was decided pro-Turner. It might work well to consider them in-turn. First of all, we didn’t hear anything from Justice Thomas, which is not a surprise; he rarely speaks during oral arguments. We also did not hear a whole lot from Chief Justice Roberts, though what we did hear seemed to lean towards a limited holding of due process rights akin to what the Government argued in their amicus brief. Mr. Bibas’ old employer Justice Kennedy seemed to struggle with what exactly the Court should do. He seemed particularly concerned about what impacts a ruling for Mr. Turner might have on the system of child-support enforcement. Justice Scalia seemed focused on two points: first, that defendants must be ensured due process– a term that need not necessarily equal lawyer; second, that the question before the Court didn’t allow for considerations of what the Government was advocating (using a case by case rather than bright line approach). Justice Alito also seemed to follow in Justice Scalia’s thinking by wondering why counsel as opposed to other mechanisms was necessary. Justice Ginsburg seemed especially concerned about the plaintiffs in child support suits (typically mothers). This is not a big surprise given Justice Ginsburg’s dedication to women’s rights. The other women at the bench may not have felt quite the same way. Justice Sotomayor seemed particularly concerned about what mechanisms other than an attorney would be sufficient for due process. Justice Kagan was quick to agree, calling the Solicitor General’s suggestions “remarkably anemic.” Finally, Justice Breyer indicated that the relative burdens on plaintiffs and defendants in a contempt hearing might have some impact on his ruling, though Justice Scalia found this line of questioning to be irrelevant.

So, what are my predictions now? Well scratch what I said in my pre-arguments prediction post. I think Mr. Turner will lose. I hate to say this, but it seems quite likely to be true. Here’s why:

First, much of the court seemed very leery of holding that a right in situations like Mr. Turner’s should be categorical or per se. A LOT of questions were dedicated to inquiring about how a case-by-case situation might work and even the justices who seemed sympathetic towards Mr. Turner indicated their hesitation about saying a right should be triggered by being in the category of indigent.

Second, a large number of opinions coming from the Court this term has been strongly pro-states. What do I mean? Well, when we speak of constitutional law in America, a big question is what should the balance of federal and state power be? This question is as old as the Constitution itself and was litigated in such cases as Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (the first defining case on the federal government’s ability to regulate interstate commerce). Although the Court in twentieth century showed sweeping deference to Congress to regulate state matters, Justice Rehnquist is credited with having redefined and pulled back on federalism. This tendency to take a deferential, hands-off approach to what the states may do has been seen repeatedly this term (for two examples, see Harrington v. Richter and Premo v. Moore, which I discussed here).

This trend should suggest that the Justices (or at least a majority of them) are going to try to leave the states alone when possible and Turner v. Rogers is a particularly easy case in which to do that. The child support system and family law in general are very much a state vehicle that each state tailors as it desires. It wouldn’t be a hard argument for a Justice to say that a state, say Kansas, may need to use procedures to secure child support that don’t work in, say, Rhode Island. And if you don’t hold for a categorical right to child support then you have to articulate an even murkier case-by-case standard that may prove cumbersome in some states and perfect in others. So, better to leave the matter alone entirely.

All of this is to say that it looks bad for Mr. Turner. I might have been able to set aside my concerns regarding the hands-off, let-the-states-do-what-they-want approach had the Court warmly embraced Mr. Turner’s argument. But given their hesitation about that during oral arguments, I think it’s a fairly safe bet the Court will affirm the South Carolina’s holding.

So of course, you may be wondering when we will know. Well, the likelihood is that we won’t see the opinion come down until June. It is always possible that it will be released before then but unlikely given the pace of the Court this term. For example, Snyder v. Phelps was argued in October and handed down in March. Now, a five-month waiting period for the decision in Turner v. Rogers is unlikely since the Court will devote all of May and June to getting opinions finished and out the door before the summer recess. Still, I wouldn’t expect it any earlier than mid to late June.

When it does come down, I’ll be covering it and going through the opinion in detail to explain it all. Until then, I’ll be taking a break from the case to discuss other things (read: jury psychology) and also to deal with the utter doom of law school finals.

-Zachary Cloud

3 responses to “Reactions to Turner v. Rogers Oral Arguments

  1. In your analysis, you suggested that the respondents argued the facts because the facts were on their side. But scarcely anyone has carefully analyzed the facts. Looking at the facts, I estimated that 50,000 persons are in jail or in prison for child support. Do you think that’s an important fact?

    • Unfortunately, it seems I may not have been specific enough when I said that. I meant to suggest that the facts of that particular case (i.e. that petitioner was a drug user and seemingly remained under-employed to avoid child support) were ones the respondents would highlight because they make his plight less sympathetic.

      The descriptive and inferential data of child-support incarceration, however, are a separate matter. Whether or not such data are important or even relevant to a constitutional inquiry of procedural due process rights is a matter that gets to the core of how judges should decide cases. A justice like Breyer would say it’s obviously important and a justice like Scalia would say it’s unquestionably not. I personally think incarceration statistics may provide useful background here but do little to resolve the underlying constitutional question. Of course, this is naught but my personal opinion.

      • That the petitioner used drugs and seemingly remained under-employed to avoid child support is no more formally relevant to the constitutional inquiry of procedural due process rights than is the actual aggregate consequences of the child support enforcement process on the number of persons incarcerated. If either facts are to be considered in a constitutional inquiry, the latter seems to me to deserve much more consideration.

        The facts of Turner’s situation do not necessarily make him a unsympathetic petitioner. Your guest poster sympathized with Turner despite their considerably different socio-economic backgrounds. More generally, having casual sex and doing drugs are quite common behavior. One might imagine that many persons could sympathize with the plight of a person who engaged in such behavior.

        I think you’re right descriptively about how the briefs differed. But why they differed in the way they did is more complicated and more interesting.

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