Ames Moot Court Competition 2017
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Ames Moot Court Competition 2017

September 26, 2019


SPEAKER 1: Good
evening, everyone. My name is [INAUDIBLE] and
I’m the president of the BSA. Welcome to the Ames
Moot Court final round. Presiding over this
year’s competition are the Honorable
John G. Roberts, Jr., Chief Justice of
the United States, the Honorable Carl E.
Stewart of the United States Court of Appeals for
the Fifth Circuit, and the Honorable
Debra A. Livingston of the United States Court of
Appeals for the Second Circuit. This evening’s case was
written by Elizabeth Prelogger and [INAUDIBLE]. Today’s case poses
two key questions– whether the Supreme Court should
overrule its holding in Rostker and hold that petitioner
Bloom’s conviction must be vacated because the
selective service registration requirement unconstitutionally
discriminates on the basis of gender, and
whether petitioner is entitled to withdraw his felony guilty
plea as a matter of right because the magistrate
judge lacked statutory or constitutional
authority to accept the plea. Representing the petitioner, the
John Hart Yulee memorial team– David Baylik, Jason Etheridge,
Jenya Godina, Issac Park, David Phillips, and Derek Reinbold. Representing the respondent,
the Fred T. Korematsu memorial team– Frederick Ding, Vivian
Dong, Henry Druschel, Lydia Lichlyter, Raeesa
Munshi, and William Schmidt. Please silence all phone
and electronic devices. Please, no photos
during the competition. And my final is please
refrain from leaving the courtroom during arguments. Thank you and enjoy
the competition. [APPLAUSE] SPEAKER 2: All rise, the
honorable, the chief justice and the associate
justices of the Supreme Court of the United States. Oyez. Oyez. Oyez. All persons having business
before the honorable, the Supreme Court
of the United States are admonished to draw near
and give their attention for the court is now sitting. God save the United States
and this honorable court. JOHN G. ROBERTS,
JR.: This evening we’ll hear argument in case
17417, Bloom versus United States. Is petitioner ready? Mr. Etheridge? JASON ETHERIDGE: Thank
you, Mr. Chief Justice. And may it please the court. My name is Jason Etheridge. And my co-counsel, Mr.
David Phillips and I, will argue on behalf of the
petitioner, Dylan Bloom. We’re joined on the briefs
by our co-counsels, Mr. David Baylik, Ms Jenya
Godina, Mr. Isaac Park, and Mr Derek Reinbold. I will address the equal
protection challenge. And my co-counsel will address
the magistrate judge issue. We’d like to reserve three
minutes for rebuttal. JOHN G. ROBERTS, JR.: Fine. JASON ETHERIDGE: The Military
Selective Service Act, or MSSA, requires all men to register
for potential draft, regardless of physical ability. And it exempts all
women from registration, no matter how capable. Because of his gender, Bloom
was required to register. But because he refused, he
was indicted and convicted of a felony for three reasons
this court should reverse. First, this court is not
bound by its prior holding on this issue because the
facts and the law have changed. Women have long served in
combat roles, and this court’s intermediate
scrutiny and demands more now than it did in 1980. CARL E. STEWART: Counsel,
are you arguing, essentially, that the change in societal
conditions, military policy, essentially has implicitly
overruled the underpinnings of our precedents,
such that what you’re asking us to do is
essentially ratify what has already occurred? JASON ETHERIDGE: I agree with
part of that characterization, your honor. And that’s because the one
thing that the court looks to, of course, when deciding
whether something has stare decisis effect is
whether the factual basis still holds. And of course, as your
honor’s question mentions, the fact that the military
policy has changed such that women are no
longer excluded from combat, and as this court
stated in Rostker, that was Congress’s clear
reason for the exclusion for registration. JOHN G. ROBERTS,
JR.: But that wasn’t the case when your client’s
conduct took place. He illegally refused
to register at a time when most women were still
excluded from combat. And so the basis of Rostker
was still viable at that time. JASON ETHERIDGE:
So with respect, Mr. Chief Justice, I would
push back a little bit on that characterization. Because it’s true, your
honor, that the government points out that the majority
of direct ground combat roles were ineligible for
women before 2015. But the fact is that
combat as a category, which was this court’s stated
reason for Congress exempting women, was open since 1993. In that year– JOHN G. ROBERTS, JR.:
Well, how many of them are we talking about? At the time of his conduct, what
percentage of combat positions were open to women? JASON ETHERIDGE: Yes,
Mr. Chief Justice. So what we can look
at is the difference between where we were in
’93 and what followed. So we went from 50%
of roles that women could serve in in the 1980s, to
80% by the beginning of Bloom’s registration period. And by the end of Bloom’s
registration period, it was 90%. So within the combat
category, it’s about half from what we can glean
from these statistics. JOHN G. ROBERTS, JR.:
Half of the combat positions were open to women
at the time of your client’s conduct? JASON ETHERIDGE: Half of the
military operating specialties, the MOS’s– JOHN G. ROBERTS, JR.: I
don’t want the categories that the military may have used. I want to know numbers because
you have a draft when you need large numbers of combat troops. So how many– a percentage
of combat positions were open to women at the
time of your client’s combat? JASON ETHERIDGE:
As a percentage, you said, of the positions
that were open to women? JOHN G. ROBERTS,
JR.: No, but if there are a million combat positions,
how many could be filled? I mean, it was the Air Force
in particular, the Naval. But ground combat
troops, how many spots were available for women? JASON ETHERIDGE: Yes,
Mr. Chief Justice. So it’s hard to get precise
statistics on the ground combat policy for a number of reasons. But what we do know is that
at the time of 2013, when it was announced that
all military operating specialties would be open to
women, there were only 10% of roles in the military
that they couldn’t fill. And at the end of
the registration period, that had
produced only 5%, they needed to be integrated. The department of
defense’s policy was that women could
compete for those roles. JOHN G. ROBERTS, JR.: I think
we’re talking across purposes a little bit here. Maybe I’m not being clear. I don’t want– like
if one of those roles was combat infantry
person, and that includes the vast bulk of combat
positions, that’s significant. I don’t really want to know
how many categorizations, how many spots. Were women is still excluded
from most combat positions? Not categories, but
available slots? JASON ETHERIDGE:
So excluded, no, your honor, because they were
able to compete for them. But it’s true, I will
grant, Mr. Chief Justice, that only a couple
of hundred women have made it into direct
ground combat roles post the time that
they were opened up. So I will concede that. But Here’s why that’s not quite
a problem for our case. And that’s because in the
time of Rostker in the 1980s, women could not even
serve in roles where there was a risk of combat. And that was a serious concern. By the time we get to
the 1990s, that had been completely obliterated. And so– DEBRA A. LIVINGTSTON:
But even today, women have been eligible for
combat roles only since 2016, and only a few hundred women
have entered combat positions. And how many combat positions
are they eligible to serve in? JASON ETHERIDGE:
In terms of slots, it would be all of the
slots in the military they are eligible to serve in. DEBRA A. LIVINGTSTON: So,
several hundred thousand? JASON ETHERIDGE: That’s correct. DEBRA A. LIVINGTSTON:
200,000 or more. So even looking
at today, there’s no representation
in your brief that I could find about how many women
would be eligible to serve, would be inducted and
capable of serving if they were registered. So absent– when you say that– because some women
are capable today, how many women must
be capable of service to render the
registration provisions unconstitutional in your mind? JASON ETHERIDGE: So you
honor, I would love to– and the reason I spoke
about percentages is because the court in
VMI talked about the fact that the Virginia Military
Institute could expect a 10%, at least, enrollment of women. And so going back to the slots,
for example, in the Rostker hearings in 1980, back in a
very traditional time period, the draft could already
absorb, according to the people that
spoke at that hearing, over 10% of the positions. It was 80,000 out of 650,000. And so that the key point is
that when women could serve in combat roles, that
would have certainly had to have increased by a
large magnitude by the time we get to the point when we’re
at Bloom’s registration period. And one key rule I would
like this court to focus on was air defense artillery. That role is
crucial, your honors, because even though it was not
a direct ground combat role, it was a combat role that the
Rostker hearings themselves identified as among the
most draft critical, if we needed a draft. So even though it wasn’t
something you would consider a boots-on-the-ground
type of role, it was still something that
was extremely important, even in the very
traditional [INAUDIBLE].. JOHN G. ROBERTS,
JR.: Was that because of the technological
requirements? Is that why it was a
critical need for a draft? JASON ETHERIDGE: I think
at all points of time, air defense artillery
is a role that does require a lot
of technical skills because you’re
launching missiles into the sky at
airplanes, for example. So that’s correct,
Mr. Chief Justice. But even under a
traditional mode of warfare, it was extremely essential. And so by the time
we get there, I think that’s a key fact
that this court can look to, to say why [INAUDIBLE]
unconstitutional. But the VMI court said 10%
is the minimum baseline for that particular case. And we know we’re far
beyond that on these facts. And so I would look to
that in terms of the time it became unconstitutional. I think the best opportunity
on that would be certainly in the 1990s once the risk
rule had been rescinded and women could serve
in combat as a category. But your honors, I’d also
like to turn to the rule we would like this court to
use when deciding this case. And it focuses on the ability. Because the rule in VMI
was that if some women are capable of combat, then a
gender-based exemption policy shouldn’t stand in their way. And I think that
the court’s holding today should reflect
that basic tenant of this court’s precedent. Also, your honors, it’s
important to note that that’s a timeless rule, as
underscored by the fact that the court
went out of its way to say that overbroad
generalizations, such as the average physical
strength, differences between men and
women, can’t serve as the basis of an exceedingly
persuasive justification. We think that’s critical. DEBRA A. LIVINGTSTON:
Now, you say that VMI fundamentally
changed our equal protection jurisprudence. But the government says that
the exceedingly persuasive justification language
that’s used in VMI is just an alternative way of
expressing the Craig v. Boren test. So which is it? JASON ETHERIDGE: So your honor,
I would point to two things that VMI did with respect
to the fit between the means [? and the end, ?] which I think
is what we’re getting at here. So first, I would say that the
one thing that VMI made clear is the legal differences between
men and women, such the combat role. Eligibility cannot serve as
the basis for a classification. So that’s a difference in kind. But also as a matter
of degree, as I was speaking before about
the overbroad generalization. So I think that that shows that
there’s a difference in focus and the fit, away from things
that, before, were focused more on, does this
hide a stereotype, or something like that. Whereas VMI focused
on, is it just based on the overbroad generalization. And that is the basis. So I think it fundamentally
changed this court’s case law moving forward. And I think Morales-Santana
that this court address just this past term, speaks of
that overbroad generalization type of thing as
being suspicious, as something we should
be concerned about. JOHN G. ROBERTS,
JR.: Well, it’s still what we loosely call
intermediate scrutiny in both cases, right? JASON ETHERIDGE: That’s
correct, your honor. JOHN G. ROBERTS,
JR.: It seems to me you’re slicing the
baloney a little thin when you start saying, it’s this
type of intermediate scrutiny as opposed to another. JASON ETHERIDGE:
Sure, your honor. I guess why I’m pointing to
those two crucial differences, is because they’re
fundamentals of Rostker and how the government
argues this case. So the Rostker court
deferred because women were not eligible for
combat roles as a category. And so the legal differences
point I was making just shows that the fundamental basis
for the doctrine of Rostker was undermined by that change. But also the overbroad
generalizations point, because as the
government points out, it’s true that on average, some
women are weaker in strength than some men. But that doesn’t necessarily
hold true in any individual case and why this court
has said that it cannot serve as the basis
for an exceedingly persuasive justification. JOHN G. ROBERTS,
JR.: Well, it would have to be a little more– if we’re conducting the
draft for combat troops, wouldn’t you have to say that
half of the combat troops are going to be– women could fill
half the positions and the men could fill
half the positions, if you’re going to have
a draft equally open to both men and women? JASON ETHERIDGE: So I
think I would turn back to what I was speaking
about before with respect to the 80,000 out of 650,000
at Rostker’s time, which shows that women could
serve in other roles, including non-combat roles
and combat support roles. But it’s true, Mr. Chief
Justice, that women can also serve in combat positions. And it wouldn’t
necessarily have to be 50/50 to justify drafting
women because they could serve in many different
positions, the military shows. And that’s why the Department
of Defense’s policy position that women should be
included in a future draft is critical because
the government doesn’t know what its needs are
going to be in effect to a future mobilization. DEBRA A. LIVINGTSTON:
But is this a judgment for us to make
at this point in time? Congress has not
yet seen to revisit the registration provisions. And are you saying that
Congress couldn’t decide– couldn’t permissibility
consider physical differences between men and
women in deciding in a context where
there’s a necessity for rapid mobilization, it
still makes sense to have an all-male registration? Is that just an
impermissible in light of your construction of VMI? JASON ETHERIDGE: So
Justice Livingston, I guess what I would
say about that is it’s not a reason
not to put women in the pool of
available candidates. And in terms of why this
court shouldn’t wait, it’s simply because people
are subject to prosecution, like our client. And in addition, men, their
chances of being drafted are significantly increased
because there are less people– CARL E. STEWART: Well, your
client was the only one subject to prosecution. And he seemed to have put
a bullseye on his chest and basically baited the
prosecution and the prosecutor. And yet he doesn’t make a
selective prosecution claim. So it’s not like there are all
these cases out there, right? JASON ETHERIDGE: That’s
right, your honor. But significant government
benefits, for example, are tied to the
registration requirements. CARL E. STEWART:
Let me ask you this, are you making a
facial challenge, or are you making an
as applied challenge, given the responses
you’ve made to the numbers that you’ve been asked about? Which is it? JASON ETHERIDGE: So it’s
a facial challenge because at all relevant
times, our position is that it was
unconstitutional as applied to everyone that it covers
because it only covers men. So it is a facial challenge. And even under the government’s
consideration of the facts, as they were during the
registration period, they lack in exceedingly
persuasive justification because women were
serving in, for example, the air defense artillery
role that I mentioned, loads of other the combat
rules, and importantly, women had already received
over 1,500 combat action badges for their service. And that’s important,
your honors, because it requires a soldier
to be deployed to a combat zone, to be slotted into a role
that receives increased battle pay, and they have to
successfully engage with the enemy in
direct ground combat consistent with the
rules of engagement. JOHN G. ROBERTS, JR.: Would the
conduct of the actual draft, would that correspond to
the percentage of women who were able to fill combat roles? In other words, if you
have 100,000 combat roles, and 80% of the men who are
drafted could fill them and 20% of women, would
you have an 80/20 draft? Or would you have to
draft them equally? JASON ETHERIDGE: So it’s a
difficult hypothetical, Mr. Chief Justice. But what I could say about that
is that if the government could show an exceedingly
persuasive reason for why they draft in different numbers,
we would have a different case. But the Department– JOHN G. ROBERTS, JR.: But
the reason is that the 20% are capable of doing combat
duties, and 80% of the men are. Is that exceedingly persuasive? JASON ETHERIDGE: No,
your honor, because women could serve in many other roles,
other than just direct ground combat. JOHN G. ROBERTS, JR.:
So the government has to draft an additional,
whatever the math is, number of women and find
something else for them to do because they can’t
do the combat duty? JASON ETHERIDGE:
So with respect, Mr. Chief Justice,
I think one problem with this kind of
framing of the case, is that the physical
abilities that you need to get into the
military through induction is already quite low. So if the purpose of
the draft was really to register combat roles, then
section 3803a, which we cited, the yellow brief,
appendix 1 and 2, would not set the baseline
level at the 10th percentile of draftees in 1940. So I agree, Mr. Chief Justice. I think the best way to handle
that, if that was really the case, would be just to
lift the physical requirements at induction, which would be a
gender neutral way of achieving the same thing. And so I’m not sure before we
even know what kind of thing we need from the military, what
kind of mobilization it is– do we need primarily
technical skills or primary physical skills– it makes sense to exclude
one half of the population from the draft pool. And I think that’s
why the Department of Defense’s position has
changed to that effect because the nature of
warfare has changed, as the post-9/11
war has taught us. DEBRA A. LIVINGSTON:
You said in your brief that since the decision
in Rostker in 1981, that we’ve changed our approach
to how much deference we owe to Congress in this
area of national security and military affairs. Could you expand on that? JASON ETHERIDGE: Yes. So the first thing I
would say about that is that this court’s
case law, historically, has looked to the rights
of civilians being at stake and being that of reason. And then also, of course,
there have been cases more recently that we’ve cited
in the brief where when there’s constitutional rights
of individuals, even under a situation
where there’s a military emergency,
the enemy combatant example, where the court is
not deferred and has waded in. But here’s why this
court should not worry about wading into
the territory of this case, and that’s because
Congress’ clear reason, again was the
combat restrictions. Now that women have
had those removed, there’s no exceeding the
persuasive justification. And, as well, the department
of defense’s position demonstrates that
women have always been valuable to the military
and would be valuable in the event of a
future mobilization, particularly before
we know what we need. DEBRA A. LIVINGTSTON:
I guess my question is, if we were to read Congress’
inaction differently than you’ve argued
in your brief, that Congress’ inaction
reflects a willingness to have women who are
physically capable volunteer and, in a cautious approach
to integrating them into the military. But they haven’t
indicated to us, yet, that they are reconsidering
the registration process. So how much deference do
we owe that lack of action by Congress? JASON ETHERIDGE: So a
couple of points about that. I think the first
thing I would turn to, the government makes
a point in its brief about the 652a notice
requirement with respect to direct ground combat. And I think this gets to
the heart of this issue. And one thing this
court has said is that it doesn’t alter
the substantive basis for legislation
when something is re-enacted through an
appropriations bill, like the National
Defense and Authorization Act that gets done every year. So that doesn’t shift the focus. So I would say we still look
to the 1980 Congress’s intent and say, why did they do this? And as this court said,
their clear reason was because of the
combat exemption. So I don’t think we
owe deference anymore because there’s just nothing
left to defer to at this point. And so I guess that would be my
basic point of why this court does not owe deference. But your honors, in
addition, I would point out that this court’s
case law, in terms of– point to the fact that it’s a
timeless rule we’re asking for. Morales-Santana pointed out
that whatever the classification issue is, it must serve the
government’s interest today. And that’s important because
new insights and understandings about the world can reveal
unjustified inequality that’s been there all along. And so just because the
military hasn’t opened up roles to women, and for example,
only a few hundred have made at this
point, it doesn’t mean that women are
incapable, it just means they haven’t
had the chance yet. And over time, maybe
it will be the case that more and more women
will try out for those roles and be successful. And so we would just say
that the court does not have to fear wading
into this, given that the Department of Defense
has decided that they support drafting women in the future. And, your honors, I see
that my time has expired. And for the
foregoing reasons, we would ask this court to reverse. Thank you. JOHN G. ROBERTS, JR.:
Thank you, counsel. Is it Ms. Lichlyter? Oh, we’re going to go that way. OK, Mr. Phillips. DAVID PHILLIPS:
Mr. Chief Justice, and may it please the Court. The second issue in
this case is about who gets to determine legal guilt
for 97% of all federal felony convictions. In the Federal Magistrate’s
Act, or the FMA, Congress carefully defined
magistrate judge jurisdiction by permitting them certain
tasks, while at the same time keeping the most important
and determinative matters outside of their authority. Accepting felony guilty pleas
is one of those matters. For three reasons– JOHN G. ROBERTS,
JR.: Well, it’s not– in the scheme of things,
it’s not terribly difficult. It’s not like running a
trial, where issues come up and there are challenges. It’s a guilty plea. The person wants to
accept responsibility. You do go through
the normal dialogue to make sure it’s
intelligent, and knowing, and he understands
what’s at stake. But it’s not something
that’s terribly difficult. DAVID PHILLIPS: Well, with
respect, Mr. Chief Justice, I don’t think the importance
that this court set out under Peretz looks
to the complexity of the matter at hand. I think it looks to importance,
which is what the court said. And I think that the importance
inquiry turns primarily on consequences. DEBRA A. LIVINGTSTON:
Didn’t we say importance and responsibility? DAVID PHILLIPS: That’s
right, Justice Livingston. Importance and responsibility
are both relevant. I don’t think that
either of those turn on complexity,
for a few reasons. So first, complex things– so the reason why complexity
cannot be the touchstone for the importance and
responsibility inquiry is evident on the face of the FMA. For example,
magistrate judges are permitted to conduct full
civil trials in subsection c. Certainly, many
civil trials can be more complex than
many felony trials. But if complexity were
the touchstone, then because civil trials
can be so complex, than felony trials
would also be in. But we know that
magistrate judges do not have authority under the FMA
to conduct full felony trials. So complexity cannot be
the touchstone for this court’s importance analysis,
importance and responsibility analysis, under Peretz. I’d like to start with the
FMA’s disposition and review requirements. Regardless of how
a court comes out on what matters can be referred
under the additional duties clause, a court still
has to answer two questions about those matters. First, what may a magistrate
judge do with those matters? And second, what will the
standard of review be? The FMA answers both of those
questions in the dispositive and non-dispositive– CARL E. STEWART: Let
me ask you a question since you mentioned
standard of review. In the Court of Appeals, there
was a dispute between you and the government over what
was the applicable standard of review. They took the position
that you waived [INAUDIBLE] that plain error
was the standard for here. And so is that
still an issue here? Or do both of you
agree that de novo review is what’s applicable? DAVID PHILLIPS: Justice
Stewart, both parties agree that de novo review is proper. And the reason for that
is because our client did raise this in a timely manner. And regardless, there’s
a narrow exception to waiver and forfeiture
where the authority of a judicial officer to act
with consent is at issue. So this is properly
considered de novo. CARL E. STEWART: Well,
let me ask you a question. We have a circuit split, right? DAVID PHILLIPS: That’s correct. CARL E. STEWART: Even
in those circuits that have deemed no
constitutional problem here, they’ve done so based on the
fact that there was consent. So what do we do here? Is this really the case for us
to reach the deep issue where we have your client’s consent? I read the transcript. The magistrate judge asked all
the pertinent questions here. And it looks like a
free and voluntary. So does consent go
out of the window? In other words, he plead guilty. Then 30 days later,
he files a motion to withdraw the guilty plea,
full colloquy, no issues. So when asked at the Court of
Appeals, the answer of counsel was, my client got, quote,
“cold feet” close quote. So are we here to
decide this deep issue because your client got cold
feet, yet consent could really decide this case and we
wait on a better case to reach the heavy issue? What do we do with the consent? DAVID PHILLIPS: Well,
Justice Stewart, I do think that it’s every
criminal defendant’s right to demand a jury trial. And rule 11d1 gives
my client the right to withdraw his
plea for any reason, or for no reason
at all, until it has been accepted by the court. And our contention is
that, even with consent, a magistrate judge has no
authority under either the FMA or Article III of
the Constitution. First, under the FMA,
magistrate judges are not permitted to
make determinations of dispositive matters. But accepting a
felony guilty plea– DEBRA A. LIVINGTSTON: Aren’t
you over-reading the statute to say that there’s this
fundamental distinction between dispositive
and non-dispositive? It’s not in the
text and it seems inconsistent to me
with the proposition that magistrate judges can do
civil trials, for instance. So what am I misunderstanding? DAVID PHILLIPS: So I would
say a couple of things to that, Justice Livingston. First, even though the words
non-dispositive and dispositive don’t appear in the
text of the statute, this court recognized
that distinction as early as 1980 in the Raddatz case when
it considered the current state of the FMA after the
1976 amendments set up the B1a and B1b framework. Further, the dispositive and
non-dispositive distinction is expressly identified
by the federal rules implementing the FMA. So it’s clear there. I would say that because
accepting a felony guilty plea is a dispositive matter, the
magistrate judges may not determine it in
the first instance. CARL E. STEWART: But the
purpose of the magistrate’s act was to provide a means to
unburden or lessen the burden on Article III judges. We all know that
the system would crunch if every person charged
with a crime went to trial. Guilty pleas are an inherent
part of the flow of the system. So if that was
fundamental in creating the magistrate
[? judges, ?] why should we make this artificial
distinction of what’s dispositive or not, if the duty
here of accepting a guilty plea fits with the original
purpose of allowing that judicial officer to handle
matters which lessen the burden on Article III judges? Why isn’t that consistent
with the congressional intent in enacting magistrate
judges in the first place? DAVID PHILLIPS: Well,
Justice Stewart, I do think that the
purpose of the FMA was to decrease the
burdens on district courts and to increase the efficiency
of the federal courts as a whole system. But I think the dispositive,
non-dispositive distinction tracks that concern
and balances it against the question
of who should be having the final
decision on legal questions. And so you have those
dispositive motions that are set out B1a, the
eight dispositive motions. And that’s an example of a
place where Congress decided, we do want to increase the
efficiency by having magistrate judges take the first
crack at the facts, issue proposed findings,
and a recommendation. The district court, within
the context of guilty pleas, doesn’t have to run
the colloquy again. And if there’s a concern
about efficiency, I would say that at least
two circuits are already comporting with the practice
that we’re asking for here. And there’s no
evidence in the record or the government hasn’t
pointed to any evidence that that causes a problem. And it’s understandable why
it wouldn’t cause a problem. JOHN G. ROBERTS,
JR.: It’s dispositive in a technical sense, of course. But it’s dispositive
with respect to something that everybody agrees to. It doesn’t strike me as a
terribly important thing. There are very, very
few errors when it comes to accepting a guilty plea. And why that would suddenly
be beyond the reach of the magistrates it’s
hard for me to comprehend. DAVID PHILLIPS: Well, I suppose,
Mr. Chief Justice, again, I don’t think that the question of
importance and responsibility, which this court set up as
the test, turns on complexity. And I also don’t think that it
turns on reviewability either. I think there are things
that are very reviewable that can still be very important. I would point to the
difference– well, the difference between
Gomez and [? Peretz ?] where this court was considering
the same issue, magistrate judges running jury voir dire. So in those, cases
reviewability was the same. The court was considering
the same issue between both of those cases. But reviewability didn’t
change between the two, but importance did. And that made the difference. So I don’t think that
reviewability and importance are two sides of the same coin. I think we care about whether
something is reviewable, depending on if the
item in the first place is important for other reasons. So our gloss on
importance, insofar as this court needs
one, is I would turn primarily to consequences. So because the consequences of
accepting a felony guilty plea are equivalent to the
consequences they’d obtain in the context
of a full felony trial, magistrate judges
may not conduct– DEBRA A. LIVINGTSTON:
Magistrate judges can accept felony jury verdicts. Is there a difference there? DAVID PHILLIPS: Yes,
yes, Justice Livingston. There’s an important
difference there. So the government does point
to a Sixth Circuit case called Day, where a magistrate
judge, quote, “accepted” a jury verdict. But that opinion
went on to explain that what exactly precisely
what the magistrate judge did. It was a purely ministerial act. Specifically, quote,
“the magistrate judge performed no duties
beyond the mechanics of receiving and reading
the jury’s verdict form upon the conclusion
of its deliberations.” There was no legal adjudication
accomplished by that magistrate judge doing a purely
ministerial act at a simple moment
when a district court judge was unavailable. But here, at the acceptance
of a felony guilty plea, guilt is actually adjudicated. And we know that
because that’s how the magistrate judge
viewed herself when she did this with my client. She said, and this is on
page 19 of the record, “I accept you guilty plea to
count one of the indictment. You are found guilty
at this time.” So there’s a difference in kind
between the sort of acceptance, a pure ministerial
act of a jury verdict, and acceptance [INAUDIBLE]. DEBRA A. LIVINGTSTON: Does your
argument fundamentally hinge on accepting this line
between dispositive and non-dispositive? DAVID PHILLIPS: No, no, Justice
Livingston, it does not. Our first argument
is that, whatever you do with the
importance inquiry under Peretz for matters that
can be referred under b3, they’re still subject to
the disposition and review requirements that the
dispositive, non-dispositive distinction sets up. But our second argument
is that simply taking Peretz on its face and
conducting the importance inquiry, the consequences
here for accepting felony guilty pleas are the same
as running a felony trial, so they are not permitted. Magistrate judges
are not permitted to accept a guilty plea
in the first instance. But for another reason, and
that’s the article three problem that we have
here, magistrate judges are also prohibited from
accepting felony guilty pleas. JOHN G. ROBERTS, JR.: I
think the Wellness case is an awfully big hurdle for you. I mean, there was a
very compelling dissent in that case. But it says consent
and supervision. That’s pretty much all you need. And you obviously
have consent here, and you obviously
have supervision. DAVID PHILLIPS: With
respect, Mr. Chief Justice, I think that if consent
and supervision had been the whole
inquiry in Wellness, it would have been somewhat
of a shorter opinion because the court
in Wellness still did go through what this court
laid out as sort of the prima facie approach to structural
Article III problems in Shore. And I’d like to
turn there because I think there’s a difference
between Wellness and this case based
on the Shore factors. So to begin with, in
the Shore factors, the court instructed
that we are to look first to whether the
essential attributes of the judicial
power have been taken outside of Article III courts. That’s precisely what
has happened here. The court in Wellness
comforted itself with the fact that the sliver of
Article III jurisdiction that had been committed to a
non Article III adjudicator was very narrow– so narrow, in fact, that
it could only be termed, quote, de minimis. But that’s not this case. In this case, you have
an entire category of Article III conduct,
core Article III business, the acceptance of
felony guilty pleas, that has now been taken and
placed in the hands of a non Article III adjudicator. So that’s one difference
between Wellness. But the other difference
between this case and Wellness is the importance of the right
being adjudicated, which is another– a third Shore factor. And that right that factor
shows that the right being adjudicated here
is felony guilt. It’s a difference in kind
between private rights, even though those are
traditional Article III business. And I would say that the
supervision here is also– there’s less supervision
here and there’s a greater structural
problem than in the cases that this court has decided
in the context of magistrate jurisdiction in
Peretz and Raddatz. This court, when it
considered Peretz and Raddatz, and it considered this
supervision in those cases, made careful to note that the
legal decision that actually had the final legal effect
on the criminal defendant’s rights, was reserved
for the district court. In Raddatz, that final decision
was the actual acceptance of the motion to suppress. So while the
magistrate judge did conduct a report and
recommendation in line with the disposition
requirements that I’ve already referenced,
the final legal determination was reserved for
the district judge. And in the same way, in Peretz,
while the magistrate judge did conduct jury
voir dire, the court was very clear that
the act of impaneling, the act that actually gave
legal effect to that act by the magistrate
judge, was reserved for the district court. But that’s not the case here. DEBRA A. LIVINGTSTON:
Perhaps so, but in Peretz, isn’t it harder to review the
magistrate judge’s conduct and to determine whether
you should go ahead with impanelment or
not, than in our case, where review might
at least be easier? DAVID PHILLIPS: So it’s
true, Justice Livingston, that review might be different
between the two cases. But again, I don’t
think that review is important for the question
of importance under Peretz. I think that we
care about review when the thing
that’s being reviewed is already important
for other reasons. But I don’t think that we
care as much about review when the item that’s at
issue is not important. So I think importance turns
on consequences first. JOHN G. ROBERTS, JR.:
When you were talking about the distinctions between
the different precedents, you were talking
about supervision, but it sounded to me like you
were talking about review. And there’s a difference. And the court in Wellness
talks about supervision, which is a more general
concept, including the court’s role in selection and
everything else with respect to magistrates. Why do we focus on review in
a particular case as opposed to the more general supervision? DAVID PHILLIPS: So I think
it’s fine to characterize it as supervision,
Mr. Chief Justice. But again, I think even in
the supervision analysis, in both Peretz
and Raddatz, which we view as the
more relevant cases because it’s dealing
with magistrate judge authority in the felony context,
even in those cases, again, when it was discussing
supervision, the court explained
that the key– the district court was
quote “waiting in the wings, ready to correct errors.” But a crucial part
of that analysis was the fact that
the district court was the one that actually
had the legal determination in the first instance. JOHN G. ROBERTS, JR.: You’re
talking about an Article III structural argument. Are we really supposed to
think that the independence of the judiciary is
going to collapse if magistrate judges can’t
accept felony guilty pleas? DAVID PHILLIPS: I think there’s
a slippery slope problem there, your honor. And I think that
Congress was careful when it did define
the terms of the FMA to avoid those
types of problems. And that’s why,
when you just look at the FMA in terms
of the importance inquiry or the disposition
and review requirements, because this is a
dispositive matter and magistrate judges
are limited to reports and recommendations
in the first instance, it’s clear that
Congress was worried about the slippery slope
problem with allowing a large amount of
Article III jurisdiction to be taken out of
Article III hands and placed in the
hands of someone without life tenure
and salary protections. So I’d like to return to that
dispositive, non-dispositive distinction. This court has recognized that
distinction, again, as early as in 1980 in the Raddatz case. And the federal rules that
are implementing the FMA confirm that that
distinction exists. And so to apply that distinction
and to apply the disposition and review requirements
to additional duties in b3 is of a piece with this
court’s reasoning in Peretz. DEBRA A. LIVINGTSTON:
We’ve used the language, I’ll give you that, as a gloss
on the statutory provisions. But it doesn’t really
track practice, does it? Because motions to suppress
are not dispositive. Motions for preliminary
injunction, not dispositive. But we treat them
in the same way of the classic
dispositive motions. DAVID PHILLIPS: Well, with
respect, Justive Livingston, I do think that both of those
motions are dispositive. We know they’re dispositive
because, for example, it’s true that the court in
Raddatz used the language. But it described a motion
to suppress as dispositive. And the federal rules confirm
that that is dispositive. They identify– this is
rule 72 in the civil context and rule 59 in the
criminal context. Both identify that
type of motion as it a dispositive motion. JOHN G. ROBERTS, JR.: Well,
it’s obviously dispositive of the particular motion. But it’s not
dispositive of the case. DAVID PHILLIPS: So that might
be true, Chief Justice Roberts. But the test for
dispositivity is not whether it necessarily ends
the litigation at that moment. The idea, and you can glean
this from those categories, the definition of dispositive
is rather capacious. The idea is, is this
category of things the type of thing that has a
reasonable likelihood of being determinative of a case? JOHN G. ROBERTS, JR.: So
a magistrate cannot grant an extension of time because
that would be completely dispositive in that
particular case? DAVID PHILLIPS: So I’m
not sure in that situation if granting a motion
for an extension of time is going to be– is the
sort of categorical matter that we think, as a
category, is going to fix the outcome in
more times than not. I don’t think it would be. But I don’t think that
that’s a problem for our case because this court
can clearly understand that accepting a felony guilty
plea clearly is dispositive. And for those foregoing reasons,
we ask that this court reverse. JOHN G. ROBERTS, JR.:
Thank you, counsel. Ms. Lichlyter. LYDIA LICHLYTER: Thank
you, Mr. Chief Justice. And may it please the court. My name is Lydia Lichlyter. And along with my co-counsel,
Mr. Frederick Ding, I represent the United States. The MSSA is
constitutional as applied to petitioner because during
the period when he was required to register, women were
excluded from draft critical ground combat roles. JOHN G. ROBERTS, JR.: But that’s
no longer the case, right? LYDIA LICHLYTER: That’s
true, your honor. But petitioner is claiming
that he was discriminated against improperly. And to the extent that that
discrimination happened, it only happened
from 2007 to 2015. So if the MSSA was
constitutional as applied during that time,
then his conviction should not be vacated. The reason that we look to
the facts during that period Is that he is alleging
a discrete violation. Now, petitioner has argued
that the purpose of the draft– sorry, that the Congress’s
purpose was combat troops, not ground combat troops. And I don’t think that’s an
appropriate way of framing this because despite the
fact that Congress’s original justification
for the MSSA was the combat ban,
generally, the ground combat roles were the focus of their
inquiry, even back in 1980. And the fact that
Congress has continued to focus on ground combat
roles in the intervening years in situations like
the 1994 NDAA, makes it clear that that
really is the focus. The reason for that is that, in
a draft, ground combat is key. We don’t draft for the
military in peacetime. We do it when we’re
facing a national crisis, and there are needs on
the front lines that we can’t fill with volunteers. DEBRA A. LIVINGTSTON:
But at this point in time, all those roles,
all ground combat roles are open to women, correct? LYDIA LICHLYTER: That’s
true, your honor. DEBRA A. LIVINGTSTON:
And I’m having difficulty with the on again,
off again character of it’s constitutional
now, wasn’t then. Or vice versa. So why isn’t the
simpler way to look at this when
Rostker was decided, women were capable of
performing those roles, so it was unconstitutional? Rostker was wrongly decided,
and we should revisit it. LYDIA LICHLYTER: Your
honor, Rostker was correctly decided because
Congress wasn’t directly concerned with
whether women were physically capable of combat. It had sort of a proxy
for that in that there was a military policy– CARL E. STEWART: But
do you acknowledge that the underlying
military policy existent when
Rostker was decided is no longer the
underlying policy. You acknowledge that? LYDIA LICHLYTER: That’s
true, your honor. But it was still
enforced in relevant part during petitioner’s
registration period. And that’s sufficient
to resolve this case. Now, petitioner
has argued that VMI stated that Congress
could not permissibly rely on such a legal distinction. But VMI never said that. It did not, in fact,
establish the principle that only physical differences
could be the justification for gender classification. In fact, VMI noted
that, for example, discrimination to remedy– or sorry, unequal treatment
to remedy past discrimination would be a reasonable basis
for a gender classification. That clearly isn’t based
on physical differences. JOHN G. ROBERTS, JR.: We’re
talking about registration. We’re not actually
talking about a draft. Is that right? LYDIA LICHLYTER: That’s
true, your honor. JOHN G. ROBERTS, JR.: Well,
regardless of how many women you would be able to
put to combat use, that’s a draft issue. Why doesn’t it
make sense to make sure they’re
registered, even if it’s going to be a small fraction
that would be eligible for combat? LYDIA LICHLYTER: For
two reasons, your honor. First, section 3805
of the MSSA requires that under the current scheme,
all individuals registered be drafted in a random manner. So if, under the current MSSA
we began registering women, in the event of a
draft, we would have to draft them 50/50 with men. Secondly, even if Congress
were to change that structure and to draft women
in an unequal manner, that would simply push the
discrimination down the line. And if petitioner has a problem
with the current scheme, it’s difficult to see
why that problem would be solved by merely doing
it at the draft point. JOHN G. ROBERTS,
JR.: Well, we’d like to decide the case
before us and not worry– not decide more simply
because another case might be brought later. LYDIA LICHLYTER: That’s
exactly right, your honor. And we think that’s
why this court should be concerned, first of all,
with petitioner’s claim. And that claim is about a
registration requirement that applied from 2007 to 2015. During that period, the
ground combat exclusions were still in place. Before 2013, women were allowed
in no ground combat roles. And until January 1,
2016 women were not allowed in a large majority
of ground combat roles. JOHN G. ROBERTS, JR.:
Well, I’ll ask you that really a flip side of the
question I posed to your friend on the other side. At what point would
it have been– enough slots would have
been open that Rostker would have been undermined? In other words, you’re
saying there’s too few slots. Well, how many would it take
before you would acknowledge that the factual basis
underlying the decision is no longer valid? LYDIA LICHLYTER:
Well, your honor, I think that depends on
what those positions are. If we’re talking about, for
example, these air defense artillery roles that
petitioner has pointed to, or combat roles in the Air Force
or Navy, which were opened much earlier, those were not the
focus of the MSSA inquiry because those are
not the ones where we need draftees to serve. If we look at the statistics
from the Vietnam War, the vast majority of draftees
serve in infantry and in army. And in fact, those
are the positions that are most subject to high
casualty rates in wartime. Those positions,
100% of them, were closed for the entirety of
petitioner’s registration period. There were a total
of 220,000 positions that women could not
serve in until at least January 1, 2016, including
all infantry, all armor, and many other ground
combat positions. JOHN G. ROBERTS,
JR.: So I take it you concede that
Rostker is wrongly decided as of right now? LYDIA LICHLYTER: The
government is not willing to make that
concession today, your honor, but it’s not relevant for
the purposes of this case whether the law
is constitutional as it stands today. CARL E. STEWART: Why are
you clinging so stringently to a precedent that, at best,
is tenuous and, at worst, has no continued vitality? I mean, what’s the benefit? The Court of Appeal rested
its decision on Rostker as precedent. So it never had to reach it. We granted cert in this case. So we’re here. So what is the
stringent clinging to this precedent which has
dubious future viability? LYDIA LICHLYTER:
Well, your honor, first, the government does
not rely on stare decisis as the principle
that should justify not overturning Rostker. We believe that it was
correctly decided at the time, given the factual circumstances
it was concerned with. And we believe that the same
holding is appropriate today, given the factual
circumstances that exist in petitioner’s case. Whether Rostker
would be correct, whether that holding would
still apply in a case concerning a man who was required
to register after 2016, is a difficult question. There are certainly
better arguments that the MSSA is
unconstitutional. But we haven’t
briefed that point, and we don’t believe it’s
necessary for this court to reach it in this
case because it doesn’t resolve petitioner’s case. Even if the law were
unconstitutional, as applied to every
person required to register after
2016, petitioner’s case would come out the same way. His conviction– CARL E. STEWART: Well,
I know what he said, but does the government
take the position that he is really making
an as applied challenge or a facial
challenge, as he said? LYDIA LICHLYTER:
Your honor, we don’t believe petitioner’s
case can be understood as a facial challenge
because the arguments he’s making about changed
circumstances didn’t apply for the entire
period during which he was required to register. The facts hadn’t changed yet. And so if that’s the
basis of his case, it cannot possibly be a
successful facial challenge. JOHN G. ROBERTS, JR.: Well,
the facts may or may not have changed, or may not
have changed sufficiently, but the legal
approach really did. I mean, Rostker said it was
applying intermediate scrutiny. But it wasn’t the
same standard that was applied in Morales-Santana. LYDIA LICHLYTER: Respectfully,
your honor, I would disagree. Rostker applied the
Craig v. Boren test, although perhaps not in
the most rigorous manner. Morales-Santana
applied the same test. The court has
repeatedly reiterated in each of its gender
discrimination cases from before Rostker, from
1975, until just last term, that the test is
whether the government– whether the gender-based
classification is substantially related to an
important government interest. It’s used the exceedingly
persuasive justification language as another
formulation of that test. But it has never
stated that it intended to elevate the standard or
to change it in any way. Even in VMI, which the
petitioner’s claim somehow changed the rule, the court
made no mention of that fact and continued to cite
the same precedence. JOHN G. ROBERTS, JR.: Well, but
exceedingly persuasive sounds a little more stringent
than substantially related to an
important objective. LYDIA LICHLYTER: Again, I
would disagree, your honor. I think that if there
is a classification that is substantially related to
a truly important government objective, that is a compelling
justification, an exceedingly persuasive one, for
allowing it to stand. What the Craig v.
Boren test gets at is whether Congress is
using means that makes sense to achieve an important end. And here we have that. There is no debate that the
government interest here is important. We’re talking about protecting
American lives in the event of a national emergency. So the question is whether this
gender-based classification is substantially related to
the achievement of that end. During petitioner’s registration
period, it clearly was. Congress could
make very little– Congress had very significant
reasons not to register women. DEBRA A. LIVINGTSTON:
Now the petitioner says we have to focus on the time
of arrest and conviction, not the time of
his registration. LYDIA LICHLYTER:
Yes, your honor. That’s not quite correct. In Morales-Santana, the
quotation comes from [? Grayned, ?]
where the court was drawing a distinction
between looking at the facts after conviction, when there
was a post-conviction change, and the facts at
time of conviction. Here, the relevant
change is actually between not
conviction and appeal, but between conduct
and conviction. It’s a little bit
counter-intuitive. It’s pretty unusual
to see a case where the government
is attempting to prosecute someone under a
law that may no longer be valid. But in fact, it is permissible
under this court’s precedence. In US v. Chambers, the
court set out the principle that a law can only
be enforced after it is no longer valid if
sufficient authority exists to sustain that application. In Chambers, of
course, there was a problem with the authority. The animating force for
the statute in that case came from the 18th amendment,
which had later been repealed. But here, the animating
force for this statute has not disappeared. The 14th Amendment
hasn’t changed. The facts that applied
in petitioner’s case, the facts that
determined whether this was a permissible
classification or not, are those that existed when
he was required to register. The fact that he was
only convicted for that later doesn’t make a difference. This is similar, in a sense,
to what this court did in Shelby County,
where it stated that a law that had
been permissible for a certain period of time
was no longer appropriate. And in that case, it
struck down the formula that was used to identify
which counties were subject to the
pre-clearance regime, but it left in place
the enforcement regime. That’s essentially what
we’re asking for here. We’re saying that even though
the registration requirement could have some constitutional
infirmity as applied today, the enforcement of that
registration requirement is valid so long as the
application of the registration requirement itself is valid. And since that registration
requirement still made sense through 2015, the application
of the law to petitioner is constitutional, and
therefore his conviction is. DEBRA A. LIVINGTSTON:
Is it clear that– focusing again back
on the 2015 period, your adversary says
that there had already been changes in the
nature of warfare that make the
distinction that you’re drawing about ground combat
troops untrue in that period. LYDIA LICHLYTER: I would
disagree with that, your honor, for two reasons. First, that is a judgment
that the military makes with its admittedly much
more ground level perspective than we have in this
courtroom today. It had not chosen to lift the
ground combat restrictions. And petitioner has not chosen
to challenge those restrictions. So they are
presumptively reasonable. Secondly, the nature of warfare,
insofar as it has changed– even if the nature of
warfare has changed– excuse me– the nature
of a draft hasn’t. The draft can only
really serve one purpose. It selects untrained
civilians to be placed into the battlefield
in a wartime scenario. It can’t be used to select
highly technical individuals. JOHN G. ROBERTS, JR.: Well,
the draft may do that. Registration does not. Registration simply
provides more information to the military, makes them
more able to respond to a crisis because they’ll know
everybody’s registered. And if they decide they need
whatever percentage of women, they can ask that. And if the MSSA currently
requires it to be randomly across the board, that
was obviously addressed to the different situation. If you don’t want different
categories of men singled out, it’s going to be random
across the board. I don’t think that
can be considered to address the
question of, you must draft equal amounts
of men and women just because equal
amounts are registered. LYDIA LICHLYTER: Well, your
honor, if all we’re doing here is registering women for the
sake of registering them, that’s exactly the sort
of hollow neutrality that this court said wasn’t
necessary in both [? Winn ?] and in Rostker. We don’t demand
that Congress make a gesture at equal treatment. We demand that they give equal
treatment where it matters. And here, if the actual impact
of the registration system is in people being
drafted, then that’s where we really care
about equal treatment. And petitioner has
highlighted this. He’s argued that
the burden here is that men are more likely to be
drafted because of the system. If that’s the case, then we
don’t care about registration for its own sake. What matters is
whether the people being deployed to
the battlefield are the correct ones. And here, Congress
set up a system– JOHN G. ROBERTS, JR.:
Well, the problem with that is I think you’re
trying to bootstrap an understandable argument about
military expertise concerning which troops are needed,
and when they’re needed, and where they’re needed. This doesn’t have
anything to do with that. The military expertise
doesn’t tell you, is it all right to have a list
of people who are of draft age? I don’t know why any military
official wouldn’t want that. The question, now do
you actually draft them, how many do you draft,
what do you deploy, that’s a different question. I don’t see any reason to
defer the military expertise on the registration question. LYDIA LICHLYTER: Well,
your honor, that’s fair. We don’t defer to
military expertise on the question of how
the MSSA is determined. What we defer to is
Congress’s reasonable action. And here, what
Congress chose to do was to not register a group that
it knew, with 100% accuracy, would not be eligible
for the roles that it was concerned
with filling. The 80,000 positions
that petitioner mentioned were available to women
even during 1980– what Congress stated in the
legislative history of the MSSA was that those 80,000 positions
would be filled by volunteers. So it had no need
of drafting women. There were no positions– JOHN G. ROBERTS,
JR.: Congress stated in the legislative history? How did they do that? LYDIA LICHLYTER:
Excuse me, your honor. I believe it was a
comment made by one of the military officials that
testified in front of Congress. And it was repeated, I
believe, in the Senate report. But I’m not 100%
sure about that. Congress found in
1980 and continued to believe through
at least 2015, that women would
serve no purpose in the event of a draft. Drafting women would
serve no purpose. It’s important to
remember that we’re talking about drafting women. The government is
making no assertion that women are not
able to volunteer to serve in any position
for which they’re eligible. They could have done
that from 2007 to 2015. They could do it today. What we’re saying is,
Congress has the permission, has the constitutional
ability, to not register a group it knows
it doesn’t need to register. That’s hollow. And during petitioner’s
registration period, they chose to do so. Congress has also
chosen to do this in the context of age groups. Congress only registers
men from age 18 to age 26. Petitioner’s argument
would seem to apply just as well to men age 27. But we choose not to
register them because we’ve made a group level distinction. We’ve made a determination
that registering one group and not another makes sense. That is substantially related
to Congress’s interest of protecting the country, and
it is therefore constitutional. Thank you. JOHN G. ROBERTS, JR.:
Thank you, counsel. Mr. Ding. FREDERICK DING: May
it please the court. Magistrates are statutorily
authorized and constitutionally permitted to accept
felony guilty pleas with the defendant’s consent. First, under Peretz,
that duty was not a far greater importance
than other duties the federal magistrates
act permits. Second, under
Wellness and Peretz, the performance of that duty
did not violate Article III because it was done under
the supervisory authority of the district court. Consequently, petitioner
is not entitled to withdraw his guilty plea. I’d like to move first to
the statutory interpretation question. The FMA here provides
the necessary authority for magistrates
under section 636b3, which allows district
courts to determine what additional duties may be
assigned, so long as they not inconsistent with the laws
or constitution of the United States. In Peretz, this court
laid out the test for what additional duties can be. And that test is
one of importance, a relative comparison
of the duty purported to be authorized with
those that are otherwise specified in the statute– DEBRA A. LIVINGTSTON:
In Gomez and Raddatz, didn’t we talk about the
line between dispositive and non-dispositive
matters in drawing a distinction as to what
should or should not be referred to magistrates? FREDERICK DING: Only in a
limited manner, your honor. Raddatz and Gomez
both recognized that Congress enumerated
certain dispositive motions in one paragraph
of a statute, section 636b1a and b1b. That paragraph applies to those
pretrial matters and habeas, but it does not extend into
the realm of additional duties. The additional duties
clause Congress specifically moved out of its
previous location in 1976 to emphasize that it was
not limited in that way by any other specific
grant of authority. JOHN G. ROBERTS, JR.: You
talk about importance, what could be more
important than being found guilty of a felony? FREDERICK DING:
Frankly, your honor, I think the trial of
finding somebody guilty would be more important. And so would sentencing– JOHN G. ROBERTS, JR.: The
end result is the same. We’re talking about
when an individual is found guilty of the offense. And you’re saying it’s
all right for a magistrate to accept that plea. FREDERICK DING: Yes, your honor. Before we get into what the
prongs of importance are, I think this court has
recognized that the plea itself supplies what is necessary
for the conviction, just in the same sense that a
jury verdict of guilty renders what is necessary
for the conviction. The acceptance merely
carries the consequence of giving that legal effect. But consequence is
not the only aspect of responsibility and
importance that we care about. In Gomez and Peretz when this
court conducted its inquiry, it focused on reviewability. And lower courts that have
attempted to deploy the Peretz analysis for guilty
plea acceptance have all found it
necessary to look at aspects, such as
complexity and consequence. So consequence alone does
not determine the answer. If it did, then
all that the court needed to do in the
felony voir dire context is look at, for instance, as
petitioners would suggest, whether the act was
dispositive or not dispositive. But the court didn’t
resolve it on those grounds. The emphasis on
reviewability makes sense because the Peretz
importance test was grounded in constitutional concerns. It was already
inherently encompassing the concern that there are
some roles that the Article III judiciary needs to protect. And the importance
analysis captures that by ensuring that judges maintain
sufficient review of actions that magistrates do. And the reason that we look at
these three factors make sense. The less reviewable
a particular action is, the more important
that it be done correctly. The more complex a
particular matter, the more important that
it be done by somebody with the capability
to handle that as an important responsibility. DEBRA A. LIVINGTSTON: What
should we make of the fact that, in 1979, after the
additional duties clause had been on the books
for over a decade, Congress considered
but declined to amend rule 11 to permit a magistrate
judge to accept guilty pleas? FREDERICK DING: Very little,
your honor, for two reasons. One is that later, unenacted
legislative history is of little use to
understand what Congress meant in 1968 when it first created
an additional duties clause, and in 1976 when it moved it. The second reason,
your honor, is that to the extent that action
can give any inferences, the inferences go
equally to the idea that it was already permissible
under the act, and to the idea that they wanted to clarify
that that authority existed. DEBRA A. LIVINGTSTON: Hasn’t
the Judicial Conference twice recommended against
authorizing magistrate judges to accept guilty pleas? FREDERICK DING: No, your honor. The second instance in
which petitioner refers is a statement of the US
administrative office of the US courts, stating that,
as a matter of policy, they would not recommend
that judge’s permit that duty to be assigned. But it was not a statement
about statutory authority. And the first report
was one in which they studied the current state
of the magistrate’s system and again recommended
to Congress that, as a matter of
policy, they should not alter what already exists. CARL E. STEWART: We
have a circuit split. We have the Fourth, the
Tenth, and the Eleventh that have found no
constitutional problem in this context where
a defendant consents. And they hinge it on the
additional duty clause. On the other hand, the
Seventh and the Ninth circuits have found that the
additional duty clause is not sufficient to override the
constitutional problem, even with consent. My question to you is,
that’s only five circuits. Has this question
sufficiently percolated within the circuits– there
are seven others– such that we ought to decide
the circuit split here? Or need it percolate
further, and we decide the case on some other basis? FREDERICK DING: Your honor,
the circuits have already given adequate consideration. And I would note that the Fifth
Circuit and the Second Circuit have also ruled on
this issue as well. And the fact that
any concerns there are about circuits
addressing this issue has already been addressed
because this court granted cert. CARL E. STEWART: Well, then the
follow up is, is this an area– I mean, all the circuits have
their unique cultures and so forth, to put it mildly– but is this an area,
the acceptance or not, of a guilty plea that should
be the same universally throughout the
country as opposed to, you happen to enter a plea in
one circuit to a magistrate, and somewhere else it
would be different. FREDERICK DING: I think your
honor is getting exactly at the heart of
this issue, which is whether it would be
permissible for district judges to choose to do so at all. The fact that some
circuits have already chosen to assign this
duty in different manners, illustrates that this
court should be permissive. That would give the
best reading of the FMA and the additional
duties clause, in light of Congress’s intent
to enable experimentation and innovation within courts. JOHN G. ROBERTS, JR.:
You would leave it up to individual district
judges whether they want to allow magistrates to
accept guilty pleas or not? FREDERICK DING: Yes, your honor. That is coherent with the rest
of the federal magistrate’s act. JOHN G. ROBERTS,
JR.: Do you think there is a district
judge out there who would not be happy to
have the magistrate accept all the guilty pleas? FREDERICK DING: Your
honor, I believe there are. I believe there
are honest judges who wish to do their caseload,
resolve their case load– CARL E. STEWART: Wait a minute. You believe there
are honest judges? FREDERICK DING: Yes, your honor. JOHN G. ROBERTS, JR.: We’ll
take judicial notice of that. But my concern is
more fundamental. And in a way, it’s that
this is an easy thing for very, very busy
district judges to delegate to someone else. And yet, it is part of the
basic Article III responsibility to find someone guilty
of a felony, whether it’s through the trial or
through his consent. And I think it’s
harmful to the judiciary to be able to shunt
these things off. FREDERICK DING: Let me address
that in two parts, your honor. First, by addressing
the concern that it would be harmful,
and second by turning to the constitutional analysis. The first issue here is
that, to the limited extent that a magistrate makes
any findings at all, these are simple findings of
voluntariness and sufficiency of evidence. Those are simple
determinations they can make. And any error can always be
caught by district judges later on. To the extent that they
need to, the defendant can point out any
of those errors through the fair and just
reason vehicle of rule 11d2. And the district
judge has the power to undo any action that the
magistrate has erred in. So the district
judge retains all of that control,
all of the control necessary for him to
possess the judicial power. DEBRA A. LIVINGTSTON: But it’s
a little different than Peretz, right? So at the end of the
jury selection process, the district court
judge could always say, I’m not impaneling this jury. Something is lost
here because instead of being able to withdraw
the plea for any reason or no reason, there has to
be on the record evidence to the district court judge
a fair and just reason for withdrawing the plea. FREDERICK DING: Not quite,
your honor, for two reasons. First, the wholesale
review of jury voir dire that Peretz allowed
by district judges would take the form
of undoing everything, not just the individual
determinations of, for instance, whether to allow a
strike or to send a juror home, but just by doing
everything over again. And the same is true here. As the court in Peretz noted,
if the Constitution requires that the district judge be able
to exercise de novo review, nothing in the rules precludes
the judge from doing so. The fact that the
defendant is only able to withdraw,
that is, by himself for a fair and just
reason, doesn’t limit the judge’s inherent power
to undo any errors he finds or to reverse a decision
of the magistrate. That is enough control
for the district judges to maintain their
judicial power. DEBRA A. LIVINGTSTON:
Does it bother you that 97% of federal convictions
are the result of guilty pleas? So that if we take
this approach, that means that the vast
majority of felony dispositions will be performed by
magistrates if the busy district judges confer on the
magistrates these cases. FREDERICK DING: No, your
honor, again for two reasons. The first reason is that
district judges still do the most important aspects
of a felony case, which in this case,
after guilty pleas, would be sentencing, at
which point, the judge still, [? inherent ?] in his discretion
to do everything important, entering final judgment. The second reason is
that to the extent it is a problem that
felony cases are 97% of the time resolved
by guilty pleas, that might be a problem with the
plea system, your honor, but not with the
role of magistrates. And I would point out– DEBRA A. LIVINGTSTON:
What about the time– I have talked to
district court judges about the sentencing
role, and most profess it’s a profound responsibility. You get precious little time
with the criminal defendant who decides to plead guilty. So for the district court judge,
at least to take the plea, that’s one other occasion
in which the judge is making assessments. Does he understand
what I’m saying? Is he under the influence
of any drugs or alcohol? That litany is information in
his time with the defendant, that if, in this process,
would not any longer factor into sentencing. FREDERICK DING: Your
honor, at sentencing, the defendant will
always, again, personally appear
before the district judge because the magistrate
cannot sentence for felony crimes. That is enough for
the district judge. And if he decides that he needs
to do more of that in order, for instance, to conduct
another plea colloquy, he has inherent power to do so. CARL E. STEWART:
But why shouldn’t the person who looked you in
the eye and took the guilty plea be the same one who looks
you in the eye, asks you if there’s elocution,
decides all these factors. Why the bifurcation in
what is, quintessentially, a very serious act? I mean, what is the benefit,
aside from efficiency. But from the standpoint
of that one individual, wouldn’t the policy be better
to have the same person who looks the person in the
eye says, you’ve entered his plea freely,
volitionally, et cetera, be the same person
who’s looking [? out? ?] FREDERICK DING: I
admit, your honor, that that might be very
good as a matter of policy. And district judges, who are
themselves learned in the law and learned in policy,
can implement that by refusing to let magistrate
judges do this duty. But that does not
mean that it would be impermissible
under the Constitution or impermissible under
the federal magistrates act for some judges to be
allowed to assign this duty. I’d like to move to the
Article III analysis to show why there is no
constitutional infirmity here. As the chief justice has pointed
out, the case in Wellness lays out the
appropriate test, one that petitioners would have
a high bar to climb over. Wellness laid out the test that
when the consent of the parties is necessary for the non
Article III adjudicator to act, then all we look to is
supervisory authority. All that remains to look to
is supervisory authority. And here we have that
supervision in two ways, both the general and specific. Generally, district
judges are the ones who control appointment
and removal, and that means that there’s
even more control in the hands of the Article III judiciary. JOHN G. ROBERTS, JR.: Well,
that is of small comfort when you’re talking
about a particular case. The idea is, well, if he keeps
making these kind of mistakes, we’re going to fire
him eventually. That’s no protection to
the individual defendant. FREDERICK DING: Indeed,
but the structural concerns for Article III are not about
the individual defendants. They are about the judicial
power and the role of judges. The second aspect, then,
specific control, better address is this concern, which
is that district judges choose how to begin the
case by choosing whether to refer a matter
to a magistrate at all. And after the
magistrate has made his ruling, or determination,
or finding, or report, the district judge gets to
undo it, gets to review it. And that
post-adjudication review allows those judges to get at
those concerns [INAUDIBLE].. JOHN G. ROBERTS, JR.: Any idea
how often that takes place? FREDERICK DING: Your honor– JOHN G. ROBERTS, JR.: How
often a district judge undertakes a de novo
review of the magistrate’s acceptance of the felony plea? FREDERICK DING: I would
submit that in reports and recommendations,
district judges are not required to even conduct de novo
because this court [INAUDIBLE].. JOHN G. ROBERTS, JR.:
OK, so it seems to me that that basis of supervision
is pretty insignificant. FREDERICK DING: That may
be the case, your honor, but if the judge wants to– JOHN G. ROBERTS, JR.: OK,
so we’ve got the first part. The general view, they can
fire him in a few months if he keeps this up. That’s not terribly significant. We have the prospect
of de novo review. That’s not terribly
significant, certainly not as a practical matter. So what else do you have? FREDERICK DING: Your
honor, if the defendant can find any error he
can advance the challenge and require the judge to
conduct that de novo review. Because that sufficiently
protects the entrance we’re worried about here,
fairness and usurpation of power, then there
isn’t a concern. Even if there isn’t
anything else left for that specific
control, it’s still sufficient to meet this
court’s test in Wellness. I would also like to move
to the rule 11 aspect here. Ultimately, this question
of magistrate authority is subsidiary to the one
of whether petitioners should be allowed to withdraw
for no reason at all. So in the event that this court
permits magistrates to conduct these actions, he is still
left with another route, which is to submit a
fair and just reason. Any error that would be
caught in de novo review, any factual developments
that occur that would change what had happened, or even if
he had alleges that he wasn’t truly voluntary, he wasn’t
truly aware of his rights, would be enough to
let him do that. So who really loses
at the end of the day? Not a whole lot of defendants. CARL E. STEWART: Well, in
this case, the court of appeal denied his claim, finding
he didn’t have a right to withdraw as a
matter of right, but it also had a
sentence in there saying, well, he doesn’t make a claim
of a fair and just reason. Had he asserted both
claims under the rule, would that have been
mutually exclusive? Or did he have to pick the
one prong that he went under? Could he have made
both the arguments? FREDERICK DING: I
think, your honor, there is a predecessor
issue, which is that because he alleges
the magistrate did not have authority to
accept the plea, he is not yet in the
11d2 world, which is when the court
has already accepted the plea but before sentencing. The manner in which petitioner
advanced his argument assumes that the
magistrate had not yet accepted the plea validly,
and hence he did not advance– and, in fact, chose not to–
advance a fair and just reason. At the end of the day, what
we’re talking about here is a system of
magistrates that assists the judiciary in efficient
resolution of disputes. In the case of a
guilty plea, taken with the consent
of the defendant and the assignment of
the district judge, everybody in the
courtroom agrees. The defendant wants
to plead guilty. He wants the magistrate there. The magistrate wants to do it. The district judge
wants to do it. And the prosecution agrees. So everybody in that guilty
plea situation is happy, and– CARL E. STEWART: So I notice
one minute and 53 seconds left in your time. And the one, to me, issue here
is this guy consented to it. And you’ve said precious
little about the consent issue. If you’ve lost all
the other arguments, why wouldn’t consent– I mean, this person
stood in front of a judge and in a clean colloquy,
the lawyer says, 30 days after the guilty plea,
your honor, my client has, quote, “cold feet” close quote. I mean, why isn’t consent your
strongest vehicle to ride? FREDERICK DING:
Your honor, consent is a theme that runs
throughout the case, both in Peretz and
in the Wellness aspects of the inquiry. JOHN G. ROBERTS, JR.:
So can you consent to be tried by a jury of four people? FREDERICK DING: No– JOHN G. ROBERTS, JR.: And
then the Article III judiciary take cognizance of that? FREDERICK DING: No, your
honor, and the reason is that the role of consent
for the Wellness inquiry is different from
the kind of consent that Justice Stewart
is speaking of. Justice Stewart is speaking
of the type of consent that waives one’s rights. And you can do that
for personal rights, such as the right to jury trial. JOHN G. ROBERTS, JR.: But you
can’t waive the requirements of Article III. There’s more at issue here
than the desire of the district court judge to have the
very able assistance of a magistrate, the
desire of the defendant to plead before the magistrate. There’s a question
of whether or not that abrogates the
judicial authority. FREDERICK DING: Yes,
your honor, exactly. In the structural
context, consent is not dispositive of the inquiry. Consent may change the
outcome between two cases, like Stern and Wellness,
in which, in one case, there was no consent,
and another there was. But that’s only because the
joint sum of both consent and supervision was enough to
cross the threshold for Article III not have been violated. In that situation, there was
never a structural violation to begin with. There was nothing
for him to waive because Article III
structural for protections were not violated. For those reasons,
petitioner should not be allowed to withdraw
simply for no reason. Thank you. JOHN G. ROBERTS, JR.:
Thank you, counsel. Petitioner, you have three
minutes for rebuttal. DAVID PHILLIPS: A
few brief comments in response, your honors. First, on the second issue
before I turn to the facial versus as applied distinction
on the first issue. Consent is not dispositive
of the Article III inquiry. Even if we were only asking
the question of supervision, the government cannot avoid the
fact that was present in both Raddatz and Peretz when this
court considered magistrate judge authority in the
felony context before. And that is the fact that the
legal determination itself remained in the hands of
the district court judge. Yes, it’s true that these
matters are obviously referred to magistrate
judges by district courts, and they are hired and
fired by district courts. But as the chief
justice points out, that is little help
to the defendant who believes that there’s been
a structural violation in his or her case. And a legal determination
in this case was not reserved for
the Article III court, as it was in both
Peretz and Raddatz. It was taken in
the first instance by the magistrate judge. And that violates rule
11d1 in this case. I’d like to turn to the facial
versus as applied distinction. The government seeks to draw a
distinction between a statute being nullified by a new
amendment and a statute being nullified by an old amendment. Our argument [? from ?] Chambers
is that the government cannot prosecute or convict under a
statute that has since lost its constitutional force. That is the rationale
of Chambers, and it follows from the
court’s own language. In Chambers, the court held
that prosecutions, quote, “necessarily depend
upon the continued life of the statute which the
prosecution seeks to apply.” The distinction between
a new amendment, repealing the
constitutional authority for a statute, and
an old amendment, in this case, the Fifth
Amendment’s equal protection element, is a distinction
without a difference. The MSSA, as it stood
in 2016, at the moment of my client’s conviction,
was unconstitutional. And under this court’s
rule in Chambers, my client has a
right to challenge that constitutionally,
as it stands in 2016, as a facial matter. This court also explained
just this last term that when this court remedies
an equal protection violation, in the criminal
context, that does not affect a saving of the statute
for retroactive criminal applications. The court explained
it in Morales-Santana that it can affect the
saving for civil purposes. That’s why Mr.
Morales-Santana did not receive the relief that
he asked for because it was a civil matter. But the court was very
careful to spell out that had Mr. Morales-Santana’s
case been a criminal case, he would have been entitled
to a vacater regardless. JOHN G. ROBERTS,
JR.: And of course it wasn’t a criminal case. DAVID PHILLIPS: That’s
correct, Mr. Chief Justice. JOHN G. ROBERTS, JR.: So the
statement you’re relying on is what we would call dicta. DAVID PHILLIPS: That’s
true, Mr. Chief Justice. It was dicta. But it was important for the
court to explain that, look, Mr. Morales-Santana was
not going to get the relief that he desired in that case
because it was a civil case. But in footnote
24 of the opinion, the court was very
careful to spell out that if it had been
a criminal case, he would have been
entitled to vacater. But when you put that together
with the Chambers principle, that only competent
authority can save a competent
repeal of a statute, it means that the
authority to save retroactive applications
of this MSSA would have to come
from the Constitution. But the Fifth Amendment
has no savings clause, just like the 21st Amendment
had no savings clause. And as Mr. Chambers had
a right to challenge the facial constitutionality
of the national prohibition act at the time of his
conviction, my client has the right to challenge
the facial constitutionality of his conviction
under the MSSA today. And for those foregoing reasons,
we ask that this court reverse. JOHN G. ROBERTS, JR.:
Thank you, counsel. We’ll stand adjourned. [APPLAUSE] SPEAKER 2: All rise. All rise. JOHN G. ROBERTS,
JR.: Please be seated As for the announcement
of the court’s decision, we’ll get to that
in a little bit. But first, I want to
thank, in particular, the teams that presented
argument here today and the teams that
worked on the briefs. It is, as many of
you may have noticed, an extremely difficult job that
they undertook this evening. And we’re well aware of the
fact that it’s the culmination of a very, very long process. I think their dedication
and abilities certainly shone through. It’s a difficult job because
you have three judges asking questions from very
different perspectives at different times. You have to keep your
eye on that ball, regardless of where the
questions are coming from. You do have to deal both
with facts and with law. You have to deal,
at length maybe, with things that you
would prefer not to or hadn’t planned on doing. And all of that on the
fly, in a situation wrought with
considerable stress. We’ll have an opportunity
to talk to the teams later and give them some
more focused feedback. But I want to say that
I was particularly impressed that nobody seemed to
be terribly nervous about it. I would have been more nervous
if I were in your shoes. We must not be very
terrifying up here. And also, everybody maintained
a certain pace to the argument in the presentation
that kept the flow going very smoothly throughout. And I thought everybody did
a very good job of getting their basic points out. And I do just want to make
sure everybody in the audience appreciates how
extraordinarily difficult it is to accomplish all of that. Judge Stewart? CARL E. STEWART: I echo
the chief’s sentiments. I’m glad I’m up here
and not out there, which is something I
often think about when lawyers appear to argue. But as the chief
said, it’s often, with a multi-judge court, the
judges read all the briefs, but sometimes their
focus on that case may be a little different. And so, lawyers, you
all did a wonderful job of sort of staying on point and
being able to make the points, yet knowing that you were
going to get questions. It’s probably more
typical than atypical that on appellate courts,
the lawyers get interrupted. And I thought the
poise of the teams to deal with the
questions yet try to pivot and get back to your point,
underscore when the times were running out,
everybody universally tried to do a quick
little summary to get the point that you
wanted us to take away. And some of the
questions, like this case, involve a lot of detail. And I commend you for
having such a handle on the details in terms of
the statistics and so forth, as well as the cases. It really takes a very
nimble brain to handle these. And with the nerves and
adrenaline that I know was going, it was
quite extraordinary. DEBRA A. LIVINGTSTON:
Yes, you really saw– it was good for all of us to
have the opportunity tonight to really see extraordinary
arguments from all four at such an early
stage in your careers. I think I may have said this
when I’ve done a moot court here on a prior occasion. But one thing I didn’t
like about becoming a judge and leaving being
a law professor is when you’re on the bench
and you see someone really give a wonderful argument. And they appear. And they’re prepared. They know the record. They know the law. They’re performing such a
wonderful public service to help the judges
understand the case better. And when you see someone
at the top of their game do this oral
advocacy skill, they are leading the conversation. I sometimes sit and
think, this person– the judges are peppering
the oralist with questions, throwing him or her
off his or her topic. But the oralist
has in mind, these are the points I have to make
sure they understand before I sit down, and so is able to
pivot back to make those points and to make them comfortably
and conversationally, and to help the
judges in their job, and to avoid all the pitfalls
and those pivots of not answering the questions
or making the judge’s suddenly feel, eh, is
she saying I didn’t read the briefs well enough? No, you’re in a
conversation with the bench. And we come away
deeply informed. You can only get to
the top of the game, as you saw this evening,
through practice. So the willingness
of these teams to commit the time
and energy to start getting to that top of the
game that they’re obviously going to achieve as lawyers
in the world, I think is just wonderful. So well done. What I don’t like about
not being a professor anymore is that, when
you see it in law school, you usually get
to go, high five. But when you see it in court,
that’s not considered seemly. JOHN G. ROBERTS, JR.: I
just make one more point. When you’re in the real world,
it’s an interesting thing that, of course,
on the court, we’re not asked to pick the best
oralist or the best brief. We’re asked to decide
the question of law. And I know that, as
from my own perspective, I lost the case when
I thought I gave the best argument I ever gave. And I won the one
where I thought I gave the worst argument. So it all comes out
fair in the end. We were told that we could
comment on the merits of the case, if we wanted to. We don’t want to,
for a lot of reasons. But now we were asked to select
and announce, in this order, the best oralist, the team with
the best brief, and the best team overall. We have selected as the best
oralist, David Phillips. [APPLAUSE] We thought that
the best brief was submitted by the respondents,
the Korematsu Memorial team. [APPLAUSE] And we thought that
the best team overall was the respondents, the
Korematsu Memorial team. [APPLAUSE] And with that, we are adjourned. [APPLAUSE]

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  1. Magistrate Judge accepting guilty plea in felony case (under Federal Magistrate Act) – – –
    Even if the initial Magistrate decision accepting a guilty plea is with consent of the defendant
    is a timely(?) motion to withdraw guilty plea a prima facie withdrawl of consent to find guilty?
    (At the very least, such a motion would seem to raise a question about whether consent was truly voluntary.)
    So, when is it "too late" to withdraw consent for a magistrate to perform adjudication?

  2. These students who can deliver well-constructed and articulate arguments in front of the CHIEF JUSTICE OF THE UNITED STATES have amazing futures in front of them.

  3. I have the first round of moot court tryouts today. I’m so nervous. Can’t imagine doing this in front of the Chief Justice of the United States.

  4. The first guy said “I would push back on that characterization” to the Chief Justice of the United States.

    That’s someone who is confident in his argument. Bravo.

  5. Imagine impressing John Roberts in Moot Court so much that he accepts your request to work as his clerk. Imagine the hard work you would have to go through.

  6. He wasn't ready for their questions, but he kept trying to redirect their focus. Nice try but he was waaaayyy over his head on this one.

  7. I wish more people knew Moot Court is the only Court that hears Real Issues that affect Constitutional Law..

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