Category: General Law

4

A Judicial Conniption

 

Justice Thomas’s concurring opinion today in Davis v. Ayala is quite extraordinary.  In response to Justice Kennedy’s concurrence that attacked the practice of extended solitary confinement (not an issue raised in this case), here is what he said:

I join the Court’s opinion explaining why Ayala is not entitled to a writ of habeas corpus from this or any other federal court. I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.

It is true that convicted murderers get treated a far sight better than their victims.  I’m not sure what that’s supposed to prove though.

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FAN 64.1 (First Amendment News) Court Hands Down License-Plate Case — 5-4 Rejects 1-A Claim

1000Earlier today the Court handed down its ruling in Walker v. Sons of Confederate VeteransThe vote was 5-4 with Justice Stephen Breyer writing for the majority and Justice Samuel Alito in dissent (joined by the Chief Justice and Justices Scalia and Kennedy). In an unusual twist, Justice Clarence Thomas voted with the Court’s liberal bloc.

The Court held that Texas’s specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue plates featuring SCV’s proposed design. Specifically, the Court ruled that

  1. When the government speaks it is not barred by the Free Speech Clause from determining the content of what it says, and
  2. The Court’s precedents regarding government speech provide the appropriate framework through which to approach the case

“The fact that private parties take part in the design and propagation of a message,” wrote Breyer, “does not extinguish the governmental nature of the message or transform the government’s role into that of a mere forum-provider.” He added: “Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license plates does not imply that the plate designs are merely a forum for private speech.”

Writing in dissent, Justice Alito argued: “The Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. Under our First Amendment cases, the distinction between government speech and private speech is critical. The First Amendment “does not regulate government speech,” and therefore when government speaks, it is free “to select the views that it wants to express.” Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). By contrast, “[i]n the realm of private speech or expression, government regulation may not favor one speaker over another.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995).”

Later, Alito argued that the majority’s “capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.”

Commentary: Ilya Shapiro, Supreme Court Allows Texas to Offend the First Amendment,” Cato Institute, June 18, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-18-15]

Cases Decided 

  1. Elonis v. United States (argue: 12-1-14 / decided: June 1, 2015) (8-1 per Roberts) (statutory-based ruling)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)
  3. Walker v. Sons of Confederate Veterans (argued 3-23-15 / decided 6-18-15) (5-4 per Breyer)
  4. Reed v. Town of Gilbert (argued 1-12-15 / decided 6-18-15) (9-0 per Thomas)

Pending Petitions*

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)

Review Denied*

  1. Walker-McGill v. Stuart
  2. O’Keefe v. Chisholm
  3. King v. Christie
  4. Apel v. United States 
  5. Dariano v. Morgan Hill Unified School District
  6. The Bronx Household of Faith v. Board of Education of the City of New York 
  7. Arneson v. 281 Care Committee
  8. Kagan v. City of New Orleans
  9. ProtectMarriage.com-Yes on 8 v. Bowen
  10. Clayton v. Niska
  11. Pregnancy Care Center of New York v. City of New York 
  12. City of Indianapolis, Indiana v. Annex Books, Inc.
  13. Ashley Furniture Industries, Inc. v. United States 
  14. Mehanna v. United States
  15. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  16. Vermont Right to Life Committee, et al v. Sorrell

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

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FAN 64 (First Amendment News) More on the Roberts Court & the First Amendment — the Women Justices

How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.

In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:

  • Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
  • Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
  • Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).

Now onto the tallies in First Amendment free expression cases:

Number of Majority/Plurality Opinions

  • Justice Ginsburg: 3 out of 39 [Roberts = 13 & Kennedy & Scalia 5 each during same period]
  • Justice Sotomayor: 2 out of 23 [Roberts = 9 & Kennedy = 4 during same period]
  • Justice Kagan: 0 out of 15* [Roberts = 6 & Kennedy = 3 during same period] [*EK did not participate in 2 of the 17 cases decided during her tenure]

Number of Separate Opinions

  • Justice Ginsburg: 5 out of 39 (2 dissenting opinions, 1 dissenting & concurring in part & 2 concurring opinions)
  • Justice Sotomayor: 2 out of 23 (2 concurring opinions)
  • Justice Kagan: 2 out of 15 (2 dissenting opinions) [*EK did not participate in 2 of the 17 cases decided during her tenure]

Total Number of Opinions by RBG, SS & EK

  • 14 (includes total majority & separate opinions) [By contrast: CJ Roberts alone has authored 13 majority/plurality opinions]

Justice Ginsburg’s majority opinions

  1. Christian Legal Society v. Martinez (5-4, 2010) (1-A claim denied)
  2. Golan v. Holder (6-2, 2012) (1-A claim denied)
  3. Wood v Moss (9-0, 2014) (1-A claim denied)

Justice Sotomayor’s majority opinions

  1. Milavetz, Gallop, & Milavetz v. United States (9-0, 2010) (1-A claim denied)
  2. Lane v. Franks (9-0, 2014) (1-A claim sustained)

Thus, in the 15 such cases in which all the women Justices participated, they authored only one majority opinion (Lane v. Franks). (Justices Ginsburg and Sotomayor participated in 17 such cases during the same period and the number of majority remained the same.)

Record re 5-4 Majority/Plurality Opinions: Of the eleven 5-4 Roberts Court majority or plurality opinions in First Amendment free expression cases, only one was authored by any of the Court’s female members (Justice Ginsburg). There were six 5-4 judgments during Justice Sotomayor’s tenure, and four such judgments during Justice Kagan’s tenure.

(CJ Roberts leads in this area with 5 such opinions followed by Justices Kennedy and Alito with two apiece.)

Justice Ginsburg’s separate opinions Read More

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More on Signed Appellate Opinions

Paul Horwitz has written a characteristically thoughtful post over at PrawfsBlawg on the issue that I raised the other day about whether we should still permit per curiam opinions.  I have a couple of additional observations on my end:

1.  Without signed opinions, outsiders would find it hard to assess the quality of individual appellate judges.  This matters when you want to think about possible candidates for promotion.  Instead, you’d have to rely on insider information that would be less reliable (“I heard from so-and-so’s law clerk that Judge X wrote that opinion.”).

2.  There is an exception to Point #1.  When judges sit on panels of three, the dissenter would always be named.  Thus, what we’d know about appellate judges would come largely from their dissents.  Or one could imagine more separate concurring opinions if that was the only way to get one’s name out for public consumption.  I’m not sure that this be a great system for assessing judges.

3.  Why do people care that a given opinion was written by Henry J. Friendly?  I think the answer is that they think that opinion will just be better.  While all panel opinions are formally equal, that does not mean that they are equally useful.  Knowing the judge’s reputation (good or bad) reduces search costs for attorneys and scholars, and that matters in the real world.

One last thought–there is a strong argument in favor of anonymous publication as a way of forcing people to focus on the arguments and not on the personalities.  (Hello, Publius.)  Of course, that argument could apply just as well to law review articles as it does to opinions.

 

 

 

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FAN 63.3 (First Amendment News) Court denies cert in abortion ultrasound case despite circuit split — Balkanization of 1-A rights?

Twenty-four states now require an ultrasound to be performed or offered to a woman prior to the performance of an abortion. Five states have enacted essentially the same display-and-describe requirement at issue in this case, and an additional four states require a physician to provide a simultaneous explanation of an ultrasound image upon a woman’s request. — Cert. Petition of Attorney General of North Carolina

This past Monday the Court denied cert. in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial. The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First and Fourteenth Amendment rights of the provider.

In his cert. petition, the attorney general of North Carolina argued that the ruling in the Fourth Circuit sustaining the First Amendment claim ran counter to those in the Fifth and Eighth Circuits.

In their reply brief, the counsel for the Respondents refuted that claim. “There is no circuit conflict warranting this Court’s review,” they argued, “because no court has ever considered, let alone upheld, a law imposing as ‘unprecedented’ of a ‘burden on the right of professional speech’ as the [North Carolina] Requirement does. . . . And all courts—including the Fifth and Eighth Circuits—agree that a state regulation compelling physicians to engage in ideological speech [– as contrasted with truthful, non-misleading information relevant to a patient’s decision to have an abortion –] is subject to searching First Amendment scrutiny.”

Moreover, they argued that “the regulations approved by the Fifth and Eighth Circuits—which both courts found to be non-ideological and subject only to rationality review — are fundamentally different from the Requirement in ways that bear directly on the appropriate level of scrutiny. No court has upheld a physician-speech regulation as uniquely intrusive as the Requirement” contained in the North Carolina law.”

Consider in this regard what Judge Harvey Wilkinson stated in his opinion for his Fourth Circuit panel: “Insofar as our decision on the applicable standard of review differs from the positions taken by the Fifth and Eighth Circuits in cases examining the constitutionality of abortion regulations under the First Amendment, we respectfully disagree. . . . With respect, our sister circuits read too much into Casey and Gonzales. The single paragraph in Casey does not assert that physicians forfeit their First Amendment rights in the procedures surrounding abortions, nor does it announce the proper level of scrutiny to be applied to abortion regulations that compel speech to the extraordinary extent present here.”

Will a majority of the Court be as quick to sustain a First Amendment claim in “pro-choice” abortion case as it was in McCullen v. Coakley (2014), a “pro-life” abortion case?

Too fine a distinction? 

Is the distinction proffered by the counsel for the Respondents too fine or too nuanced to be of any meaningful import in future cases? If so, does the cert. denial in Walker-McGill v. Stuart point to a balkanization of constitutional rights in this area? In other words, is the ideological warring we have witnessed in the abortion context now spreading to First Amendment law? Can we now expect speech related to abortion to be dragged into this ideological morass replete with all the confusion that comes with that?

Fewer than four votes

David Horowitz

David Horowitz

However that may be, the Court’s cert. denial seemed somewhat surprising. As David Horowitz, the executive director of the Media Coalition, observed: “I’m very surprised that this was a case that no one could find four votes for. I would’ve thought one side or the other could have done that. The failure to do so suggests, at least, that Chief Justice Roberts and Justice Kennedy do not want to take the case, or one of those two and one of the liberal Justices felt likewise.”

See also Adam Liptak, “Supreme Court Rejects North Carolina’s Appeal on Pre-Abortion Ultrasounds,” New York Times, June 5, 2015, and “Supreme Court Won’t Revive North Carolina Abortion Law,” Associated Press, June 15, 2015

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Conspiracy in the Lincoln Assassination Trial

On Friday, the DC Circuit issued its decision in Al Bahlul v. United States.  The opinion held that Congress exceeded its Article I powers by authorizing a military commission to try a Guantanamo detainee for the crime on conspiracy.  I cannot claim any special expertise on this question, but the dueling opinions (Judge Rogers for the Court and Judge Henderson in dissent) do address one point that I know something about–the trial of John Wilkes’s Booth’s accomplices.  We are in the midst of the 150th anniversary of that military trial, which I spent a chapter discussing in my biography of Bingham.

The Court declined to rely on the Lincoln assassination military trial as authority for Al Bahlul’s conspiracy conviction, and I think that this was correct.  First, the assassins were not charged with conspiracy.  The actual charge was “traitorous conspiracy,” not conspiring to commit treason.  What is that?  Basically, it was a charge invented just for them to avoid Article III’s requirements for proving treason while still conveying the idea that they had done something treasonable.  The dissent (which oddly spends a lot of time citing Chief Justice Rehnquist’s book that discusses the Lincoln trial, rather than the primary sources), errs in reaching the opposite conclusion.

Moreover, the Lincoln assassination commission was filled with irregularities and thus is not a precedent people ought to read broadly.    The District Court opinion that rejected the habeas corpus petition of some of the convicted men was not convincing, and even if it was right the special circumstances presented by the murder of the President in wartime are far removed from the cases of the Guantanamo detainees.

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FAN 63.2 (First Amendment News) — Court denies review in compelled ultrasound image abortion case — First Amendment claim stands

Today the Court released its orders list. The Justices denied review in Walker-McGill v. Stuart with Justice Antonin Scalia dissenting from that denial.

The issue in the case was whether North Carolina’s statutory requirement that an ultrasound image be displayed and described to the patient prior to an abortion procedure violates the First Amendment rights of the provider.

The Fourth Circuit stuck down the law (see here) on First Amendment grounds. The lower court opinion was authored by Circuit Judge J. Harvey Wilkinson.

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Why privacy matters even if you don’t care about it (or, privacy as a collective good)

privacy is...

“How much do people care about privacy?” This is a key, enduring, question in ongoing debates about technological surveillance. As survey after survey regarding changing privacy attitudes is presented as proof that privacy is dead, one might wonder why we should bother protecting privacy at all.

One common answer is that the privacy surveys are wrong. If survey-makers only asked the right questions, they would see that people do actually care about their privacy. Just look at the most recent Pew Research Survey on privacy and surveillance. We should protect privacy rights because people care about it.

While this answer is fine, I find it unsatisfying. For one, it’s hard to draw firm conclusions about privacy attitudes from the surveys I’ve seen (compare the Pew survey linked above to this Pew survey from the year before). Those attitudes might ebb and flow depending on the context and tools being used, and social facts about the people using them. More importantly, though, while privacy surveys can be very valuable, it’s not clear that they are relevant to key policy questions about whether and how we should protect privacy.

This leads to what I think is the better (but perhaps more controversial) answer to the puzzle: privacy is worth protecting even if turns out most people don’t care about their own privacy. As counterintuitive as it seems, questions about privacy and surveillance don’t–and shouldn’t–hinge on individual privacy preferences.

That’s because questions about privacy rights, like questions about speech or voting or associative rights, are bigger than any individual or group. They are, instead, about the type of society we (including all those survey-takers) want to live in. Or as scholars have suggested, privacy is best thought of as a collective rather than merely an individual good.

Privacy is like voting

Many of our most cherished rights, such as expressive, associational, and voting rights, are understood to protect both individual and collective interests. The right to vote, for example, empowers individuals to cast ballots in presidential elections. But the broader purpose of voting rights–their raison d’être–is to reach collective or systemic goods such as democratic accountability.

Read More

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What the Debate about Red v. Blue Families is Really About

David Leonhardt strikes again.  He links two parent families to upward mobility, and notes that two different dynamics produce two parent families: high income and religion.  He then replicates maps that purport to show these linkages.

There are two problems with these single minded linkages.  First, the geographic analysis of two parent families and the connection to social mobility is meaningless without taking race into account.  The striking thing about Utah, Idaho, the upper Midwest and New England – all areas with relatively low rates of single parent families – is that they have much smaller African-American and Latino populations, and white families tend to have strikingly different demographic patterns than non-white families, in part because of differences in socio-economic status.   The second chart Mr. Leonhardt’s column includes captures this point even more effectively.  It shows the least social mobility – and some of the highest rates of single parenthood – in a belt that runs through heavily African-American communities, primarily in the South.  These communities are as notable for their high rates of poverty, segregation, and isolation.  There is sophisticated demographic analysis underlying these figures, but Mr. Leonhardt’s column doesn’t capture it.   Instead, he largely dismisses the influence of racial factors, particularly their role in compounding the effects of poverty and isolation, as “hardly the only explanation,” while most observers would make it a critical part of the explanation.

Second, the link between single parent families and social mobility raises the question of which comes first – whether the link is a unidimensional one of single parent families causing low social mobility or poor, isolated communities causing low high rates of single parent families.  The research on this is somewhat complex.  Virtually all studies show that, all other things being equal, two parents are better than one.  Yet, the modern examination of upward mobility also indicates that children in single parent families do better in wealthier communities, eliminating some of the disadvantage that comes from single parenthood itself.  In a similar fashion, African-Americans, irrespective of family form, do better in integrated, middle-class communities.  Poor, isolated, and segregated communities on the other hand tend to suffer disproportionately from factors that increase rates of single parenthood, including high rates of unemployment, underemployment, and employment instability, racially targeted police practices that increase the portion of the male population in prison or on probation or parole, and higher rates of domestic violence and substance abuse.

In our work on ideological division (Red Families v. Blue Families) and class influences on family formation (Marriage Markets), we tried to capture the dynamic forces underlying these trends.  We argued that what “blue” family patterns reflect is an adaptation to the economic forces that reward investment in women.  In this system, couples defer childbearing until their educations are complete and they establish sufficient employment and financial stability to manage children.  This system, as the Leonhardt column indicates, works and has taken hold in the wealthier parts of the country.  What we described as “red” is a religiously based system that still celebrates marriage at younger ages.  It, too, “works” for couples embedded in religious communities and for men who still have stable employment.

The problem with both systems is what they offer for communities where good jobs have largely disappeared.  In these communities, church attendance has declined with the loss of employment, and both divorce and non-marital births have risen.  Some research indicates that the persistence of young average ages of marriage increases the divorce rates of the people in the same communities who also marry young but are less likely to attend church.  And the major factor affecting a recent decline in non-marital birth rates nationally is a decline in fertility – i.e., a blue strategy that involves greater use of contraception and more delay in childbearing – rather than more marriage, though the married couples who deferred childbearing during the Great Recession are now having children at later ages increasing the overall percentage born within marriage.

Leonhardt’s column, however, misses these demographic subtleties along with the issue of what the red/blue divide is really about.  We argued that what underlies “blue” is a modernist effort to adjust to changing economic realities.  Elites, whether in red or blue states, have done so effectively; the battle is over how to translate their systems into something that works for those at the losing end of economic changes.  “Blue” prescriptions emphasize giving women more autonomy; that is, more control of their sexuality and greater ability to avoid unplanned pregnancies and unwanted births.  For those who want to have children, however, blue policies would also provide greater support for the children who result, producing overall a smaller, better educated population.  “Red” prescriptions, which celebrate religion and marriage, also tend to work by limiting women’s autonomy.  They make it harder to access contraception, much less abortion, and favor limiting women’s ability to go it alone with respect to childrearing.  What no emphasis on the family alone can do, however, is bring back the jobs that once supported two parent, working class families.  Leonhardt’s column, by reinforcing the myth that family form somehow causes low social mobility, is a disservice to the real debate about what underlies family change.

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FAN 63.1 (First Amendment News) — Judge grants petition to unseal grand jury transcripts from 1942 Espionage Act investigation of Chicago Tribune

Chief Judge Ruben Castillo

Chief Judge Ruben Castillo

Yesterday Chief Judge Ruben Castillo granted a petition to unseal the grand jury transcripts from the 1942 Espionage Act investigation of the Chicago Tribune. The petition titled In re Petition of Elliot Carlson, et al was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. In addition to the lead petitioner, the other parties in the case were: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

Screen Shot 2015-06-11 at 10.54.59 AMThe government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

Despite the long-standing tradition that grand jury proceedings are to be kept secret, Judge Castillo ruled that “the rule of grand jury secrecy is not absolute.” Thus, Federal Rule of Criminal Procedure 6(e) addresses several situations in which the Court can order the release of grand jury transcripts. The controversy in the case arose over the question of whether the Court had authority to order release of grand jury materials for reasons other than those enumerated in Rule 6(e).

Against that backdrop Judge Castillo declared:

nothing in the Federal Rules expressly forbids a district court from releasing grand jury materials based on their historical significance; the Rules simply do not expressly authorize it. This distinction is critical. As the Seventh Circuit has recognized, the “mere absence of language in the federal rules specifically authorizing or describing a particularjudicial procedure should not, and does not, give rise to a negative implication of prohibition.” See G Heilman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989) (citing Link v. Wabash R.R.,370 U.S. 626, 629-30 (1989).) The Federal Rules specifically provide that, in the absence of express authority to the contrary, the Court can proceed “in any manner consistent with federal law, these Rules, and the local rules of the district.” Fed. R. Crim. P. 57(b).

 To buttress that argument, he added:

As drafted, Rule 6(e) does not contain the type of negative language — such as “only” or “limited to” — that one would expect to find if the list were intended to be exclusive.  See Fed R. Crim. P. 6 (eX3XE). Nor are the exceptions listed in Rule 6(e) part of an “associated group or series.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Rather, they describe distinct scenarios in which different individuals can seek disclosure of grand jury materials. See Fed. R. Crim. P. 6(eX3XEXi)-(v). Under these circumstances, there is little basis to conclude that Congress intended Rule 6(e)(3) to preclude disclosure of grand jury materials in all situations other than those listed. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73,81 (2002) (“Just as statutory language suggesting exclusiveness is missing, so is that essential extra-statutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication.”).

. . . The Court also considers that the Federal Advisory Committee on the Criminal Rules, a rulemaking body under the jurisdiction of the Judicial Conference Committee on Rules of Practice and Procedure, has interpreted Rule 6(e) in a manner supporting the view that courts have inherent authority to release grand jury materials for reasons outside of those enumerated.

Judge Castillo then considered the nine factors set out in In re Craig, 131 F.3d 99  (2d Cir.1997), and concluded that release of the grand jury transcripts was warranted.  Thus, he granted the petition to “release . . . the grand jury transcripts from the 1942 investigation of the Chicago Tribune.”

Reporters Committee press June 11, 2015 release here

ht: Katie Townsend