Ames Moot Court Competition 2017

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]

Channel: Harvard Law School

Views: 121,671

Rating: 4.9566789 out of 5

Keywords: Harvard Law School, HLS, Harvard University, Ames Moot Court Competition, John G. Roberts Jr., Debra A. Livingston, Carl E. Stewart

Id: AGLPp-pyLAA

Length: 83min 22sec (5002 seconds)

Published: Mon Nov 20 2017