Today, my friend Heidi Boghosian and I have filed an amici curiae brief urging the Supreme Court Court to review the conviction and sentence of Ross Ulbricht in the “Silk Road” case. The petition for cert. was Scotusblog’s “petition of the day” last month. Our brief describes two major areas of concern that the Supreme Court should review and correct.
Since the blog is almost exclusively for the benefit of my students, I take a break from keeping up with it when the Court is in session but GW classes are not and students are not around. Which is why there’s been no post about the first set of January cases. But the two cases on January 17 are worth noting:
Encino Motorcars v. Navarro is an issue of statutory construction, in the context of employee rights to overtime pay. The same case was before the Supreme Court in 2016, but the only issue was the deference given to the Department of Labor’s interpretation of the statute. Judicial deference to administrative agencies is of particular importance and interest, especially since the new administration came to power. But that part of the case is resolved, and now the Court deals only with how courts should interpret the statutory language. Scotusblog has a useful overview, with an interesting discussion of the briefing itself.
For the next case, McCoy v. Louisiana, I will also rely on the good work from Scotusblog, this time going so far as to let the title of their article convey what the case is about: When a defendant in a capital case says “not guilty,” can his attorney say “guilty”?
[After today, the Court next hears argument on February 20. Previews of those cases to come in early February.]
What may be the most highly watched case of the term — Masterpiece Cakeshop, involving nondiscrimination laws and same-sex couples — will be argued on December 5. Before then, we also have important cases involving Dodd-Frank whistleblowers and privacy rights in phone records.
[Update: PBS Newshour, Analysis: 3 cases that make December a blockbuster month for the Supreme Court]
There are important patent cases on Monday, November 27. They will not be of interest or easy to follow for the casual observer, but if you’re interested in PTO procedures or patent law, see the case pages here and here.
Tuesday, Nov 28
The first case today is a technical issue of civil procedure for class actions under the Securities Act.
However, the second case, Digital Realty Trust, Inc. v. Somers, could significantly expand or contract the rights of whistleblowers under the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Wednesday, Nov 29
Carpenter v. United States raises important issues about privacy rights in the vast amount of data that is stored by companies we rely upon for modern technology. A 1986 federal law, the Stored Communications Act, allows phone companies to turn over records to law enforcement without a warrant. Now, of course, phones transmit much more information than anyone could have anticipated three decades ago. The Court has accepted cert. on the question “Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.” A useful overview is here, and be sure to follow the link there to the EFF brief.
This is the only case scheduled for today. No change to the usual one-hour argument has been ordered, but it may run a little long.
Tuesday, December 5 — Masterpiece Cakeshop
This may be the most anticipated case of the term, involving nondiscrimination laws and the rights of same-sex couples and private businesses. Briefly, the Colorado Civil Rights Commission determined that a bakery violated state law when it refused to prepare a cake for a same-sex wedding. The baker claims that his First Amendment rights should bar the state from enforcing its nondiscrimination laws. A great deal has been written about this case in non-legal forums, but before attending arguments, it would be wise to review the Scotusblog overview, Mary Bonauto’s article, and the couple’s petition for cert.
This case is sure to draw a huge crowd, probably with lines forming the night (or afternoon) before. On the other hand, I would expect demonstrations and press conferences outside the courthouse before, during, and after arguments. So plan to get there exceedingly early if you want to attend the arguments, but you also could just take in the events outside.
This is the only case scheduled for argument today. The Court has not extended argument time, but it also has not (as of Nov 20) acted on the Solicitor General’s motion to split time with the bakery. Regardless of how the Court divvies up the time, I would expect arguments to run at least a little past the usual hour.
Most of the cases this week are focused on technical issues that would not be terribly interesting or easily accessible to most casual observers. The exception if the first case on Monday, Ayestas v. Davis.
In federal death penalty cases, the law requires that when counsel is appointed for indigent defendants, there also be funding for “investigative, expert, or other services [that] are reasonably necessary for the representation.” 18 USC § 3599(f). This case is a habeas case — an appeal to the federal courts of a verdict in state court — and the Fifth Circuit has interpreted “reasonably necessary” to mean that the defendant must show that there is a “substantial need” for the investigation by presenting “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The concern is that this standard requires defense counsel to prove what an investigation would uncover before there can be an investigation. A very useful article about the case is on Scotusblog. The Court has accepted cert. on “whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds ‘reasonably necessary’ resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.”
The second case today, Wilson v. Sellers, is also a federal death penalty case, but the question is more arcane. The Antiterrorism and Effective Death Penalty Act (AEDPA) creates high barriers to federal courts overturning state court sentences of death. A key concept is deference to adjudications “on the merits.” Sometimes, various appeals in the state courts will result in some opinions that provide a full reasoning and others that offer only a summary affirmance of the decision. Courts historically have “looked through” one-sentence decisions to the last full opinion as being the one for consideration as a decision on the merits, but a 2011 Supreme Court case seemed to hold that even summary decisions are “on the merits” in some circumstances. This is an important issue, but very tied up in civil procedure matters that can be hard to follow. If you plan to attend, read this article and, if you have time, a couple of amicus briefs — intriguingly, a group of retired state supreme court justices are on the opposite side from a group of state governments.
[Looking ahead, there is
a voting rights case on November 8,* a Dodd-Frank whistleblower case on Nov 28, NCAA cases on Dec 4, and the much-anticipated Masterpiece Cakeshop case on Dec 5. I will provide full descriptions of these cases in various posts as the oral argument dates for each get closer.]
* The voting rights case has been removed from the docket due to a medical issue with one of the lawyers who was going to argue the case. We expect it to be argued early in 2018.
The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering. I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available. (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)
One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018. The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22. So I would expect oral arguments in January or February, although it could be as early as December.
“First Monday,” October 2
The 2017 term opens with the issue of mandatory arbitration clauses. The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges. In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act. Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.
The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.” Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.
Tuesday, October 3
The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term. In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts. The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role. A good summary is here, with a set of thoughtful positions collected here.
The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.
Wednesday, October 4
This is a criminal law day, with both cases coming out of Washington, DC. The first involves probable cause and qualified immunity. Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful. In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house. Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet. Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission. They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity. The Court has accepted review of both questions.
The second case, Class v. US, is a criminal procedure case in the context of gun laws. Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol. He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited. A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car. He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims. He then appealed, but the appellate court held the guilty plea waived his right to appeal. The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?” This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).
(the Court does not hear cases on Monday, which is Columbus Day)
Tuesday, October 10
This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii. I don’t have anything to add to the extensive commentary on these cases…. Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives. It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).
The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.
Wednesday, October 11
The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.” I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.
The second case involves corporate liability under the Alien Tort Claims Act. The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas. The Court has accept cert. on the question of whether corporations can be sued under the ATCA. Scotusblog has some good background.
There is a major religion case and an interesting criminal procedure case tomorrow, and a death penalty case on Monday. Otherwise, this and next week are mostly taken up with cases that involve hard-to-follow matters of procedure and specialized areas of law, so with the exception of the cases below, this is generally not the best month for the casual observer.
Wednesday, April 19
The competing religion clauses are once again up for examination and attempt at reconciliation in the first case this morning, Trinity Lutheran v. Comer. The First Amendment prohibits laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” In order to avoid violating the first clause, Missouri prohibits public money from being disbursed “directly or indirectly in aid of any church, sect, or denomination of religion.” In this case, that meant a church-owned playground could not be reimbursed for refurbishing its playground with a rubber surface made from recycled tires under a program that is available to non-religious nonprofit organizations. The church sued, claiming this effort to comply with the first religion clause violates the second religion clause, by singling out churches for less favorable treatment compared with all other nonprofits. There is a web of not-always-consistent legal doctrines and tests for the constitutionality of regulations that impact religion, developed in the Supreme Court over the past several decades. Intriguingly, the state is emphasizing the text of the Constitution, noting that refusing to give money for a playground renovation in no way prohibits exercise of religion. The argument is even more intriguing given that the briefing predated the nomination of the textualist, but generally pro-religion, now-Justice Gorsuch. A full overview of the case and arguments is available here.
The second case today involves appellate review of “errors” in a criminal trial. Some types of error require a showing of prejudice — to get a new trial, it’s not enough that the trial judge did the wrong thing, the defendant has to show that the error likely impacted the outcome of the trial. Other types of errors are “structural,” undermining the integrity of the proceedings as a whole, and are deemed always and necessarily prejudicial. In Weaver v. Massachusetts, the judge closed the courtroom during jury selection, denying entry to the defendant’s mother and others. By all accounts, this was simply because so many potential jurors were called, in an effort to find enough impartial jurors, that the room was full (although some potential jurors could simply have been told to wait outside). Nevertheless, it is fundamental that the Constitution requires public trials (except under very unusual circumstances) and this was structural error, requiring no special showing of prejudice to warrant reversal and a new trial. But the defendant’s lawyer failed to object to the closing of the courtroom, and ineffective assistance of counsel is a type of error that requires a showing of prejudice. So which rule applies, and does the defendant need to show prejudice in order to get a new trial?
Monday, April 24
First up is a death penalty case involving the right to independent psychological experts. In McWilliams v. Dunn, the judge ordered psychological examination of the defendant, which was first conducted by a Department of Corrections doctor who recommended evaluation by an independent expert. The report by an independent expert was not delivered until the day before sentencing, and the judge denied a request for time for the defense counsel to review the report with an expert. The Court has granted cert on the question of whether this violates the right (declared in other cases) to “meaningful expert assistance.”
The second case today is a complex issue involving the right to effective assistance of counsel. The Court has held that the constitutional right to counsel requires effective assistance at trial and on direct appeals, but not during discretionary or collateral post-conviction proceedings (like requests to reduce the sentence for reasons other than legal error at trial). However, some states require ineffective assistance claims to be raised in collateral proceedings, and difficult issues arise when claims are “nested” among actions by counsel in various proceedings. It’s a complex area of criminal appellate law, and the argument will not be easy to follow for the casual observer. If you plan to attend, start here and follow the links.
[April 25 & 26: Tuesday cases and the first cases on Wednesday involve technical FDA and civil procedure cases, which I wouldn’t recommend for a casual observer. The second hour on Wednesday involves denaturalization so may be of some interest, although it too is a relatively technical issue.]
This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.
Tuesday, Feb 21
A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent. The agent fired from US territory, but the boy was in Mexico. That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial: does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this? A through description of all the legal issues is available here.
McLane Co v. EEOC is a more procedural issue without much suspense. Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC. All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.
Wednesday, Feb 22
The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently. Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements. Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents. The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.
Monday, February 27
The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.
The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.
In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
This week, the Court considers a free speech challenge to credit card surcharges, litigation sanctions, and what standards for a free appropriate public education for students with disabilities. Next week, the Court takes on both disparaging trademarks and the rights of detainees who claim they were held in severe conditions of confinement based only on racial profiling.
Tuesday, January 10
An interesting case this morning involves claims of free speech rights in an unusual context: credit card fees. Merchants pay a fee to credit card companies, but ten states prohibit them from passing on that fee as a “surcharge.” The group of merchants in Expressions Hair Design v Schneiderman argue that this prohibition is an unconstitutional limitation on speech. The Second Circuit rejected that, holding that it only regulates commercial practices (conduct, not speech), but the merchants note that the law allows them to offer a discount for paying with cash, so as a practical matter, it regulates what they call it rather than what they charge.
The second case, Goodyear Tire & Rubber Co. v. Haeger, involves the scope of a court’s inherent power to award attorney fees and other sanctions where a party engages in some form of litigation misconduct.
Wednesday, January 11
The Individuals with Disabilities Education Act (IDEA) requires states to provide children with disabilities with a “free appropriate public education” (FAPE), but that is not fully defined. Some courts, including the lower courts in this case (Endrew F. v. Douglas County School District), have held that it requires only that the state provide some sort of education that is of more than minimal value to the student. Other courts, and the Obama Administration in this case, have argued that this is not enough, and the standard should involve a “meaningful” education.
[This is the only case being argued today, and is scheduled for one hour. However, the Solicitor General is arguing along with the parties, so it may run a few minutes long.]
Wednesday, January 18
Two significant and contentious issues are before the Court today.
First, the Court considers the provision in the Trademark Act that allows for refusal to register the trademark if it would “disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. 1052(a). The specific case (Lee v. Tam) involves Samuel Tam, who named his band The Slants in order to bring attention to discrimination against Asians, “following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride.” This case will have implications for the current name of the Washington football team, among other contentious current issues.
Next, the court considers detainee rights in Ziglar v. Abbasi and Hasty v. Abbasi, which allege that, in the aftermath of the 9/11 attacks, individuals were arrested and detained in extreme conditions on the basis of no evidence other than race, religion, and national origin. The Atlantic offers an overview and makes predictions of the sort of reception the cases are likely to receive. The Center for Constitutional Rights has detailed information about their case. [The parties had requested additional time for argument, but that was denied and the cases are considered with one hour total. I would expect it to run a little long nonetheless.]
The Supreme Court and state legislators have been struggling with voting districts as they relate one-person-one-vote principles and racial discrimination in multiple cases over the past several years, and the issues arise again in the two cases scheduled for Monday, December 5.
Amy Howe has an excellent article on Scotusblog that provides a full description of the context and these cases. Briefly, Bethune-Hill v. Virginia State Board of Elections challenges twelve “majority-minority” districts in Virginia, with one side arguing that African Americans were packed into these districts in order to dilute their voting power in other districts and the other side claiming that the case was filed in order to require re-drawing of the maps after Democrats won the governorship. The second case, McCrory v. Harris, is a challenge to North Carolina’s infamous NC-1 and NC-12 districts, which look like this:
The D.C. Circuit Court of Appeals will hear arguments on Monday (Nov. 14) in a case involving the rights of protesters to line the Inaugural Parade Route on January 20, 2017. The Partnership for Civil Justice went to court back in 2000 and successfully secured access for protesters on Inauguration Day 2001, but according to this release:
In an unprecedented court filing, the U.S. Government and its Justice Department argue that the government may take the public parklands, sidewalks and streets of America at the central moment of their use by the people for assembly, speech and debate, and petitioning of the government and redesignate our public spaces into exclusive “government speech” or No Free Speech Zones. There is no limitation to the scope of these zones.
Circuit arguments are open to the public and typically do not draw much of a crowd, although it would be wise to get there a bit early for Monday’s.
Monday, November 14 – 9:30 a.m.
US Court of Appeals for the DC Circuit
333 Constitution Avenue