October cases

First Monday is October 3 and opens the 2016-17 session of the Court, but this year Monday is a “non-argument day.”  In the first two weeks, the Court will hear cases concerning racism and the death penalty, an allegation of extreme police and prosecutorial misconduct, and racist jurors who do not reveal their racism until after the jury has been selected and started private deliberations.

Tuesday, October 4

Two relatively technical cases are scheduled for this first argument day.  Neither will be particularly accessible to a casual observer, but may be of interest to some.

Bravo-Fernandez v. US involves the “double jeopardy clause” and the doctrine of “collateral estoppel.”  The first trial resulted in jury acquittal on some counts and conviction on other counts, but the conviction was later overturned due to erroneous instructions to the jurors.  The government wants to reprosecute the overturned convictions, but the defendant says those counts, properly understood and with correct jury instructions, are logically inconsistent with the finding of acquittal on the other counts in the first trial. SCOTUSblog offers a useful overview.

Shaw v. US asks whether a bank fraud statute criminalizing a “scheme to defraud a financial institution” requires proof of “a specific intent not only to deceive, but also to cheat, a bank.”  The scheme is at least an interesting read.

Wednesday, October 5

In the morning, the Court starts with an insider trading case, Salman v. United States.  It’s an unusual subject to come before the Court, and could be interesting just on the facts of the case.  Columbia Law School’s blog offers an interesting discussion.

The second morning argument involves racism and the death penalty, although the official question being considered involves procedure.  In Buck v. Davis, the defendant seeks a hearing on whether “his trial counsel was constitutionally ineffective for knowingly presenting an ‘expert’ who testified that petitioner was more likely to be dangerous in the future because he is Black.”  Wow….  See a full discussion of the case here.

Unusually, the Court has scheduled an afternoon session today.  The case, Manuel v. City of Joliet, asks whether malicious prosecution can be brought under the 4th Amendment and involves a really shocking set of allegations of misconduct.  Morning arguments close at noon and the courtroom will be cleared at that time, with afternoon sessions beginning at 1:00.  Since afternoon sessions are so unusual, it’s hard to know what the crowds will be like, but it may well be easier to get in for this argument.

[The Court is closed Oct. 10 for Columbus Day]

Tuesday, October 11

The first case, Samsung Electronics v. Apple, involves damages in a patent infringement case and will be rather technical and involve a specialized area of law.  But the second case, Pena-Rodriguez v. Colorado, is an unusual examination of what happened during jury deliberations.  Ordinarily, juror comments are kept secret absent extreme misconduct.  In this case, it is alleged that one of the jurors made racist comments that would give reason to be believe the individual should have been excluded from juror service (but, obviously, this racism did not come to light during juror selection).  The Court has accepted cert. on the question of whether the usual veil of secrecy around what happens during deliberations “constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.” A useful overview is offered here.

There is another unusual afternoon argument today, but involving technical appeal procedure.  And there are no arguments scheduled for Wednesday this week.

February 22-24 cases

Post-Scalia oral arguments begin next week, in cases involving veteran preferences, unlawful searches and the exclusionary rule, and federalism concerns in criminal law.

Monday, February 22

The first case today involves the preference for veteran-owned small businesses (VOSB) to be awarded government contracts.  Federal law requires that government agencies “shall award contracts” to a VOSB if two or more bid for the contract at a fair price.  In Kingdomware Technologies, Inc. v. United States, the VA wanted a new type of information technology. It consulted a list of companies that have supply contracts with the government and selected one that was not a VOSB.  A VOSB company challenged this, saying the VA should have conducted a market analysis, seen that VOSBs could have provided this tech, and put it up for bid.  It emphasizes the “shall award” part of the law; the VA emphasizes the “contracts” part of the law, asserting that a new order through a company with an existing government contract is just an order and not a contract, so not covered by the “shall award contracts” law.  In addition, there are two conflicting “canons of construction” (i.e., rules for how to interpret laws) that come into play in this case.  The first is known as “Chevron deference” and holds that courts should not override a federal agency’s interpretation of a law if there is ambiguity and the agency’s interpretation is not unreasonable.  This would, obviously, favor the VA.  But there is also the “veterans canon” which holds that if a law is ambiguous and involves veterans, it should be interpreted to favor veterans.  Take a look at this relatively long article.  If you go, be prepared to follow some jargon and alphabet soup.

The second case today is an important consideration of the exclusionary rule, which holds that evidence obtained illegally may not be used against the defendant.  In Utah v. Strieff, the police received an anonymous tip about a drug house and an officer stopped someone who came out of the house, demanded his ID, and ran a warrants check.  This was unlawful; the government concedes that the officer did not have reasonable suspicion to require the individual to stop and identify himself, as required for a “Terry stop.”  The unlawful stop and ID check resulted in realization that he had an outstanding “small traffic warrant,” so he was then arrested and searched, and found to be in possession of meth and drug paraphernalia.  The defendant moved to suppress the incriminating evidence because its discovery all flowed from an illegal seizure.  The government argues that the intervening event of discovery of an outstanding warrant makes the initial illegal stop irrelevant.  Ultimately, this case will reveal something about the Court’s attitude toward the exclusionary rule as a means to curb and correct unlawful searches, as this article discusses in more detail.

Tuesday, February 23

The first case today involves Federalism concerns in the context of criminal law.  The Hobbs Act makes it a federal crime to commit robbery or extortion that affects interstate commerce. It was originally enacted to reach racketeering, but now is often used in other context, such as drug crimes (as in this case, Taylor v. US).  The question in this case is whether the government has to show a connection with interstate commerce in each individual case or if it can rely upon a general principle “that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.”

The second set of arguments are on two consolidated cases involving damages for patent infringement. The Patent Act provides for enhanced damages (extra money), but the courts have limited that to willful misconduct under a stringent test.  The Supreme Court appears suspicious of those limitations, and has granted cert on the question of “Whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284, that is the same as the rigid, two-part test this Court rejected last term in Octane Fitness, LLC v. ICON Health & Fitness, Inc. for imposing attorney fees under the similarly-worded 35 U.S.C. § 285.”

[Wednesday’s cases involve complex issues under Federal Energy Regulatory Commission (FERC) programs and would not be recommended for the casual observer.  Recommendations for the week of Feb 29 will be posted later.]


January 19 & 20

Cases of interest this week involve First Amendment rights of public employees and land rights, including rights of Native Americans.

Tuesday, January 19

The first case today is a rather odd factual setting, involving a mistaken belief that a police officer engaged in political activity.  If he had, that would have been protected by the First Amendment — but since he actually hadn’t, is there any Constitutional violation?  If a government employee in a non-political position (someone who is not making policy and whose political affiliation should not be an issue for the job) is fired or demoted for engaging in activity protected by the First Amendment, that person would have a lawsuit for unlawful retaliation.  In Heffernan v. City of Paterson, a police officer was demoted because he was perceived to be supporting a challenger to the Mayor, while the sheriff supported the incumbent.  However, the officer was not actually supporting that candidate; he was just picking up yard signs for his mother.  The 10th Circuit dismissed the officer’s lawsuit, holding that he could not sue for retaliation for engaging in political activity because he had not in fact engaged in political activity (even though his supervisors thought he had, and explicitly said they were demoting him because of his support for the other candidate).  The Supreme Court granted cert. on the question “Whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.”

The second case up for argument today is a technical question and will be of interest to fewer people, but those concerned with limits on the jurisdiction of federal courts may be interested.  Federal courts have jurisdiction when there is a “federal question” (interpretation of a federal law or the US Constitution) or, as relevant in this case, there is a “diversity of citizenship” (plaintiffs and defendants live in different states).  Diversity is not always obvious when the parties are corporations or other artificial entities.  Americold Realty Trust v. ConAgra Foods asks “whether the citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.”


Wednesday, January 20

The two cases today involve land rights.  The first, Nebraska v. Parker, involves the jurisdiction of Native American tribes.  The specific issue is whether or not the Omaha tribe can impose a tax on liquor sales in territory it claims.  In the early 1880s, Congress opened up the area to settlers, but it is not clear if that resulted in complete loss of the tribe’s governing authority, and there is a general legal principle that Native American land interests should not be diminished if there is ambiguity.  See the above link for a full description of the history and legal principles.

The second case is specific to Alaska, involving the jurisdiction of the National Park Service.  The factual background is nuanced and important to resolution of the case, involving failed efforts to resolve land ownership disputes among the federal government, private individuals, the state of Alaska, and Native American tribes.  See this helpful overview of Sturgeon v. Frost.

December 8 & 9 – voting rights & affirmative action

November cases involved a number of fairly arcane legal issues, but next week sees two important sets of arguments in areas of broad interest.

Tuesday, December 8

Both cases today involve voting rights and Congressional Districts.  An excellent overview of the history of “one person, one vote” is available here.  Briefly, Evenwel v. Abbott raises the question of who counts as a “person” within that “one person, one vote” framework–in other words, in deciding whether Congressional Districts are equal in size, should we look to total population, registered voters, eligible voters, or some other measure?  Oddly, this has never been decided.  Harris v. Arizona Independent Redistricting Commission asks whether partisan gerrymandering is constitutional and whether a desire to obtain pre-clearance under the Voting Rights Act (which has since been struck down, but was purportedly on the minds of the commissioners when they drew these districts) can be a legitimate justification for the districts.  The cases have not been consolidated, so one hour for each.

Wednesday, December 9

The Fisher v. Univeristy of Texas at Austin case is back before the Supreme Court today.  This case has already generated one Supreme Court decision and two 5th Circuit decisions.  This case against affirmative action persists, even though UT says Fisher would not have been admitted to the university regardless of race, and notes that applicants of color with higher test scores and GPAs were not admitted.  There’s a great deal of speculation about why the Court has agreed to accept the case a second time.  The oral arguments should be fascinating and over-alayzed, and it is sure to draw a crowd both for getting into the Court and for demonstrating on the plaza.  This is the only case scheduled today, but is still set for one hour (UT’s counsel will share 10 minutes of that’s side’s half-hour with the Solicitor General).


This page is primarily for recommending Supreme Court cases to my undergraduate students.  I won’t mention all cases (see scotusblog for that), but rather will highlight days when at least one case is likely to be interesting and accessible to a casual observer with interests that coincide with my course themes.  If a case intrigues you enough, see this page for tips on attending the argument.  Browse the other pages for more info about me and my courses.