Final Arguments of the Term

The last two weeks in April will close oral arguments for the term.  Along with the highly anticipated marriage equality cases, the Court will hear important criminal law cases, including the first death penalty case since 2007.

Several days in the closing weeks have only one case scheduled.

Monday, April 20

The Armed Career Criminal Act provides for stricter punishment for certain offenses, and the Court in Johnson v US will decide whether possession of a short-barreled shotgun constitutes a “violent felony” within the meaning of that Act.

Tuesday, April 21

In McFadden v US, the Court wades into the confusing area of regulating “designer drugs” developed by “underground chemists” — new substances that are not listed illegal drugs but produce the same effects, which Congress intended to regulate with the Controlled Substance Analogue Enforcement Act.  This case raises the issue of whether the government must prove that the defendant knew the drug he had was an analogue to a listed drug.

Wednesday, April 22

Another one-case day, this time involving the takings clause, which is relatively rarely addressed by the Court, although this specific dispute was before the Court last year on a preliminary standing issue.  It involves a Department of Agriculture program to stabilize raisin prices, which requires producers to surrender some of their supplies each year and be compensated when and if the government sells those raisins. The Court must decide whether this raises a Fifth Amendment issue (“taking” raisins rather than real property), and if so, whether the just compensation requirement can be satisfied with this sort of system.

Monday, April 27

Kingsley v. Hendrickson is an excessive force claim against jail officials.  The jury was instructed that for the prisoner to win, he would have to prove, among other things, that “Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety.”  The Court has accepted cert on the limited question of whether it should instead be enough to show that the officials “deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

Tuesday, April 28 – marriage equality cases

In contrast to the one-case days, the Court has accepted cert. in four cases that raise questions related to marriage equality.  The cases are all consolidated for argument together, with a total of 2 1/2 hours allotted (but I wouldn’t be surprised if it runs a little long).

Unlike the procedural, technical, and somewhat peripheral issues that kept us from true resolution of the overall issue last time, the Court this year has accepted cert. on questions that cut to the core:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of- state?

A total of ninety minutes is allotted for oral argument on question 1.  A total of one hour is allotted for oral argument on question 2.

Much has been written about these cases (Scotusblog has a set of links to recent stories here) so I won’t duplicate efforts.  Suffice to say it will be a fascinating and historic day–get to the Court if you can, whether to try to make it in (which likely will require at least one overnight stay for the public line) or just to take in the demonstrations and press conferences out front.

Wednesday, April 29

Although the marriage cases are getting the bulk of public attention, an extremely important death penalty case is up for argument today, Glossip v. Gross.  The first question presented speaks for itself:

(1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious;

In addition to considering the constitutionality of this sort of lethal injection cocktail, the Court has also accepted cert. on two further questions, involving the technical requirements for blocking executions that may violate constitutional requirements:

(2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

No further arguments this term, but decisions will be announced on Mondays

The Court will continue to sit and announce decisions on Mondays through the end of June, or until it has announced decisions in all cases argued this term.  It may announce sittings on other days, as decisions get finalized.  These sessions, too, are open to the public.  We don’t know which cases will be issue on which days, but in recent years, the Court has announced its most high-profile cases in the last few seatings (which seems likely to recur, given the arguments being heard in the final week).  Even then, the lines were relatively short and it is very interesting to hear the Justices announce and summarize the decisions (and sometimes even more interesting when there’s a spirited dissent!).

Barring unusual circumstances requiring an expedited hearing, the Court will then go on recess and not hear any more arguments until the first Monday in October.