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).

April cases — last of 17-18 term

April 25 is the last day of oral argument this term — when they will take up the “Muslim travel ban” (after sentencing guidelines and Congressional redistricting cases earlier in the week).  After that, the Court will sit each Monday until the end of June in order to announce its decisions in cases argued this term, then will go on summer recess until First Monday in October.

Monday, April 23

The morning cases are rather technical and not recommended for the casual observer, but there is an unusual afternoon argument today that may be of interest.  Chavez-Meza v. United States involves the ongoing confusion regarding sentencing guidelines. This time, the issue is how thoroughly the judge must explain a sentencing reduction on the record.  Scotusblog has a useful preview.

Afternoon arguments are rare and it’s hard to predict how difficult it will be to get in.  Arguments begin at 1:00; morning arguments are 10:00-noon, then there’s a lunch break during which the courtroom is cleared.  Often, it’s been enough to get in line by 11:00.

Tuesday, April 24

Redistricting is before the Court yet again this morning — the third time this term alone. Abbott v. Perez involves protracted litigation over claims that Texas violated the Voting Rights Act when it redrew Congressional districts in 2011. The history of the various lawsuits and interim rulings is critical to understanding this case and being able to follow the arguments, so review the overview from Brennan Center and follow at least some of those links for key documents in the case (the links near the bottom, and particularly the NAACP LDEF amicus brief, will be especially helpful).

The case has been scheduled for 70 minutes, which is slightly more time than usual.  There will be 4 arguing counsel (2 on each side) and 35 minutes total for each side.

The second case today,  Animal Science Products v. Hebei Welcome Pharmaceutical Co., is an antitrust case that raises the question of to what extent US courts should defer to foreign courts’ interpretations of foreign law. See the overview here.

Wednesday, April 25 — the “Muslim Travel Ban”

The Court’s last scheduled argument of the term is Trump v. Hawaii — perhaps the most politicized case in years, as well as one that raises some interesting unanswered academic legal questions.  Obviously, a great deal has been said and written about this case, but below I suggest some specific reading that should help you to follow the legal arguments before the Court.

A general overview will obviously help, but I also suggest some more reading on each of the official “questions presented,” as specified in the grant of cert.:

(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;
[This involves the “political question” or “plenary-power” doctrine and the question of whether certain matters are entrusted by the Constitution to the executive branch alone.  See the argument here.]

(2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;
[This question is essentially one of administrative law and statutory interpretation.  The decision below will give a good sense of the argument that the president lacked that authority.]

(3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad;
[This is a difficult and unresolved legal question — just what is the scope of authority of a district court, for a single region and with specific plaintiffs before it, when the issue in the case is one of national policy with unspecified individuals who may be subject to it?  See the discussion here.]

(4) whether the proclamation violates the establishment clause of the Constitution.
[Here, the Court will take up the argument that the order reflects unconstitutional discrimination on the basis of religion. See this amicus brief from a collection of civil rights organizations arguing that the order should be seen as an act of religious discrimination.]

There are also an extraordinary number of amicus briefs filed in this case, and you may wish to see if any are from organizations you would like to hear from.

Expect the arguments to run long.  So far, the Court has not ordered additional time (although it denied the Becket Fund for Religious Liberty’s request to participate in oral arguments), but it is the only case on the docket today.

People will begin lining up to see the arguments very early, and I wouldn’t be surprised if  no one gets in from the public line who wasn’t in line (or paying a line-stander) for at least 24 hours.  Even if that’s not possible for you, there will be much to see and do on the sidewalk in front of the Court — multiple and competing demonstrations before and during arguments, followed by press conferences as soon as the arguing lawyers leave the building.

April Cases

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.]