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.


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 or the information about online access. Browse the other pages for more info about me and my courses.