February cases

Tuesday, February 19

The only case scheduled for argument today is relatively technical but may be of interest to students of statutory construction or those interested in the patent law or the status of the Post Office.  The Leahy-Smith America Invents Act (AIA) created a Patent Trial and Appeal Board with authority to review patents that were awarded by the Patent and Trademark Office if a “person” challenges the validity of the patent. Return Mail v. USPS asks whether the Postal Service is a “person” in this context.  Royal Mail had its patent invalidated by a post-grant review initiated by the Post Office, and now asserts that the Board should never have conducted the review because the AIA did not define “person” to include government agencies and because the Dictionary Act, which provides definitions for laws that lack specific definitions, defines “person” to not include government agencies.  However, the AIA also uses “person” in other contexts in which Congress clearly meant to include government agencies.  So the case will offer an academically interesting battle of cannons of statutory construction, and will have implications for who can serve as a watchdog for invalid patents.  (On the later point, the Electronic Frontier Foundation has an interesting amicus brief in support of the Post Office.)

(Since this is the only case today, it’s possible the argument will run a little longer than an hour, but I wouldn’t expect it to go more than a few minutes over.  The Court had been scheduled to hear the dispute regarding discovery to uncover the true motive for adding a citizenship question to the next Census, but that was put on hold and may well be removed from the docket.)

Wednesday, February 20

The only case scheduled for today involves technology licenses that a debtor has rejected in a bankruptcy proceeding.  Debtors are permitted to “reject” contracts in bankruptcy proceedings, but this has very different implications if it is a simple sales contract (in which case the debtor is liable for contract damages, ie any added expense the other party incurs as a result of having to find a different partner) or something like a contract that gives rights to use, or even exclusive rights to use, a piece of technology or trademark.  It is a very technical area of the law and I would not recommend this case for a casual observer.  But if interested, there’s a useful article about it on Scotusblog.

Monday, February 25

A really interesting case about the “state actor” test in the context of First Amendment rights and (a bit more obscurely!) public access television.  The Constitution generally cannot be violated by private individuals or companies because it regulates only what the government may or may not do — but there are two significant qualifiers on that general rule.  First, if the government creates and retains control over a private company, then the constitution applies.  In Manhattan Community Access Corp. v. Halleck, the City created a private company that controls access to the public access cable channels but appoints only two of the thirteen board members.  Second, the constitution might apply to private companies that perform a “traditional public function.”  But that is a rather fraught doctrine (it’s been declared “in retreat” since the 1970s; and consider private prisons, for example, as one amicus brief in this case touches upon).

I think this should be a really interesting case to attend, but read this overview and get a sense of the arguments by reading at least a few of the filings.  Notably, the Electronic Frontier Foundation filed an amicus brief in support of neither party, including a section “In Praise of Unmoderated Platforms” followed immediately by a section arguing that “Moderated Platforms Are Also Valuable.”

Tuesday, February 26

Both cases today involve interpretation of criminal law statutes.  The first, US v. Haymond, involves sentencing based on facts that were not found beyond a reasonable doubt or by a jury.  Haymond was convicted of possession of child pornography, served time, and then was released on probation subject to a requirement that he not commit another crime.  He was then found to have been in possession of child pornography again, but this was determined by the judge alone and based on a “preponderance of the evidence” standard (more likely than not; not beyond a reasonable doubt).  The court not only revoked his parole but sentenced him to an additional term of imprisonment.  He argues this violates his rights to due process and trial by jury.  There’s a useful discussion of these issues here.

The second case, Mont v. US, is a bit more technical, but certainly important.  It involves how to count (or pause counting) the days that someone has to serve probation:  “Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.”

Wednesday, February 27

This is an important day for people interested in religious liberty questions, and particularly the establishment clause. American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association involve cross-shaped memorials on public land.

Establishment clause doctrine has been criticized by all sides as unwieldy and unclear — we’re not even sure what the standards are, much less how to apply those standards in a given case.  Some precedent says the primary concern is to avoid “excessive entanglement” of church and state, but it’s not always clear what is or isn’t excessive, and anyway, there are other cases that suggest we should be focused on different concerns. Two of the “questions presented” for today highlight this pretty clearly:  “whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.”

Scotusblog has a helpful “In Plain English” article as well as some great posts from a variety of perspectives in an online symposium.

I would get there very early for this argument.  Alternatively, forget about getting into the courtroom and just plan to take in the dueling demonstrations and press conferences that I’m sure will be taking place on the sidewalk in front of the Court.  These usually start around 8am for drive-time radio coverage and keep going until a while after the lawyers exit the courthouse, which wil be around 11:30.  The two cases are consolidated, with a total of 70 minutes scheduled for arguments (but they’re the only cases today so could run a few minutes over).

Amicus Brief in Silk Road Case

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.

First, the government tracked Mr. Ulbricht’s internet activity without ever showing probable cause for such a search.  The Circuit Court of Appeals upheld this, finding that monitoring internet activity is subject to no greater privacy protection than monitoring what phone numbers a person dials.  Although the Supreme Court has expressed concern with the privacy interests in online activity, it has never specifically addressed this situation, and it is high time to make clear that our online activity may not be monitored absent a showing of probable cause.
Second, during sentencing, the judge made clear that she was basing the sentence on her belief that Mr. Ulbricht was guilty of murders for hire and causing other deaths—but he was never charged with homicide, and the jury made no findings in this regard.  Over the past decades, the Supreme Court has been reviewing the right to a jury trial where disputed facts would increase a sentence, but again, this particular scenario (of a sentence that is far beyond the Sentencing Guidelines, but technically within the statute) needs to be addressed.  Moreover, the judge expressed hostility to Mr. Ulbricht’s political views in opposition to the “war on drugs” and, of course, sentences based on the judge’s dislike of the defendant’s ideology cannot be tolerated.
The brief was joined by a range of organizations concerned with privacy rights and the right to a jury trial:  National Lawyers Guild, American Conservative Union Foundation Center for Criminal Justice Reform, FreedomWorks, Human Rights Defense Center, Judge Nancy Gertner (ret.), National Coalition to Protect Civil Freedoms, Partnership for Civil Justice Fund, and People’s Law Office.