Week of March 23

[EDIT: The March arguments are postponed.]

The Supreme Court building “is closed to the public” but “will remain open for official business.”  It’s not entirely clear what this means for oral arguments, and particularly for members of the public or members of the Supreme Court Bar who wish to observe the arguments.  As of posting, there are no docket entries suggesting that next week’s cases will not be heard as scheduled.

Assuming arguments go forward — and regardless of whether or not you could attend — this may be a good time to learn about the availability of audio recordings and transcripts!  From the Court’s website, you can get transcripts the same day as the arguments and the audio is released that Friday.  In addition, on Oyez you can get transcript-synchronized audio (the transcript scrolls and highlights automatically as you listen). It’s a great service. Scroll to the bottom of the page to see the latest; go to the case page then click the link in the left column. I’m not sure how long they take, but seem to be fairly quick to produce this after the audio is released.

There are some important and interesting cases coming.  I’ll note next week’s cases now, and add a new post for the week of March 30 when there’s more certainty about what’s happening in response to concerns about the pandemic.

Monday, March 23

Two consolidated cases (one hour total) are up first, and involve the statute of limitations for rape under the Uniform Code of Military Justice.  There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.

Next up is an interesting trademark case, US Patent & Trademark Office v. Booking.com.  You cannot trademark a generic term, but can you trademark [generic term].com? For a useful overview, see this “Brief amici curiae of Trademark Scholars in support of neither party.”

Tuesday, March 24

Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use.  See the amicus brief from the Electronic Frontier Foundation.

An important “no fly list” case brought in part under the Religious Freedom Restoration Act, Tanzin v. Tanvir, is the second argument.  Oyez offers a useful overview:

The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.

Wednesday, March 25

Two First Amendment cases today.  First is Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’”  The Brennan Center is heavily involved in such issues and has an amicus brief that should provide a good foundation.

Finally, United States Agency for International Development v. Alliance for Open Society International, Inc., involves First Amendment limits on conditions for federal funding. Congress originally provided funding for HIV intervention programs subject to two restrictions: (1) no funds “may be used to promote or advocate the legalization or practice of prostitution,” and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.”  In 2013, Alliance for Open Society won in an earlier Supreme Court case with the same name, which held that the second restriction “violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). The case today asks whether that principle protects only this US-based organization or extends “to legally distinct foreign entities operating overseas that are affiliated with” the organization.

February & Early March Cases

The next block of arguments will occur in the last week of February and first week of March—with a large number of very significant cases. It starts with an important case involving federal lands that has not received much attention, followed by other important cases including a really interesting one in the context of free speech related to illegal immigration and another questioning the whole “expedited removal” process, then the CFPB case, and finally ending on March 4 with one of the more high-profile cases of the term, involving access to abortion.

Monday, February 24

First is a case that has not received much public attention but represents an important contest over whether the Trump Administration can authorize commercial activity on federal land in apparent violation of enacted laws. The Federal Energy Regulatory Commission awarded a right-of-way to Atlantic Coast Pipeline LLC so it could construct a natural gas pipeline across the Appalachian Trail within the George Washington Forest, despite laws that specify that such rights-of-way may be granted on federal lands “except lands in the National Park System.” 30 U.S.C. § 185(b)(1). An environmental organization successfully sued to block this action, with the Fourth Circuit holding that the Appalachian Trail is a “unit” of the National Park System and therefore the Mineral Leasing Act “specifically excludes” the Trail “from the authority . . . to grant pipeline rights of way.” The Administration is arguing, among other things, that the Appalachian Trail is not “land” within the meaning of these laws, which one group of amici seized on: “Petitioners’ first response (USFS Br. 19; ACP Br. 18) to that straightforward reading of the relevant statutory texts is that the AT is not ‘land’ at all but is instead merely ‘a trail’ or ‘a footpath’ that metaphysically crosses land. That argument is too clever by half.” I recommend reviewing that brief from NRDC and other groups, which offers a useful overview of the arguments. [There are two cases, US Forest Service v. Cowpasture River Assn. and Atlantic Coast Pipeline, LLC v. Cowpasture River Assn., but they have been consolidated for a total of 1 hour of argument.]

The second case is a terrorism case that also has not received much attention, likely because it involves fairly technical issues of interpretation of the Foreign Sovereign Immunities Act. The suit is against Sudan and alleges that it sponsored Al-Qaeda and bears liability for deaths and injuries of US government employees and contractors in the 1998 embassy bombings in Kenya and Tanzania.  Congress amended the FSIA in 2008 to allow for punitive damages in cases of state-sponsored terrorism; the question for the Court today is whether that amendment applies retroactively. Opati v. Republic of Sudan.

Tuesday, February 25 

Today is an important First Amendment case in the context of illegal immigration. Federal law provides for imprisonment of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 18 U.S.C. § 1324(a)(1)(A)(iv). Based on those words alone, the statute might be read to criminalize a wide range of political advocacy that would be Constitutionally protected, such as editorials describing immigration law as immoral and illegitimate bars on entry by people fleeing oppression. Although incitement and solicitation of illegal activity may be criminalized under longstanding First Amendment doctrines, “abstract advocacy” of illegal activity is free speech. The line is often difficult to describe and cases typically address the issue in theoretical terms. That’s the case in today’s US v. Sineneng-Smith. Evelyn Sineneng-Smith continued to file green card applications (and charge her clients) under a specific program even though that program had ended.  She was convicted of both mail fraud (which is no longer being contested) and under this “encourage or induce” provision.  Speech that is part of a criminal scheme is not protected, but in First Amendment cases, we often look to the language of the statute and courts will strike down the law if it is “overbroad” even if the specific defendant before them did something that the Constitution would allow the government to criminalize under a more carefully drafted statute. Prof. Eugene Volokh’s amicus brief offers a compelling examination of the importance of the questions in this case.  There’s also an interesting NYT article about the case. 

Wednesday, February 26

The only case today is a technical issue under the Prison Litigation Reform Act, involving how to count the number of “strikes” against a prisoner who has had prior lawsuits dismissed.  It’s not one I would recommend to the casual observer. Lomax v. Ortiz-Marquez

Monday, March 2

Two important immigration cases today, both involving different aspects of the power of the courts over the immigration process.  The first, Nasrallah v. Barr, involves a member of the Druze religion who had been granted asylum in 2006 on the basis of an incident in which Hezbollah fired weapons at him and forced him to jump off a cliff to escape.  But in 2013 he was convicted of receiving stolen property, which triggered a removal process.  An immigration judge deferred removal, finding that he likely would face persecution if returned to Lebanon, but the Board of Immigration Appeals found that he was not in fact in danger because the guns weren’t aimed at him and he “voluntarily jumped.”  The 11th Circuit refused to examine that finding, holding that it lacked power to review factual findings by the BIA.  The Supreme Court has granted cert. on “whether the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” See this interesting amicus brief from a group thirty-three former immigration judges and members of the BIA, which argues that “[i]n light of the immense resource constraints of immigration courts, which amici experienced firsthand, it is crucial to have Article III court review of the underlying basis for a grant or denial of a [Convention Against Torture] claim.”

The second case, DHS v. Thuraissigiam, reviews a 9th Circuit decision that called into question the entire “expedited removal” process, finding that it lacked the “meager procedural protections” that the Supreme Court had required even for enemy combatants in Guantanamo — and therefore the statute denying courts authority to hear habeas petitions was invalid under the Constitution’s “suspension clause.”  The Circuit decision itself offers a useful overview of the law and the circumstances this immigrant faced; also see this ABA Journal article and the organization’s amicus brief

Tuesday, March 3

The legitimacy of the Consumer Finance Protection Bureau is being challenged on the basis of separation-of-powers concerns in Seila Law v. CFPB. The Constitution vests the President with the authority and duty to “take care that the laws be faithfully executed,” and this has traditionally meant broad authority to remove the heads of administrative agencies.  But Congress on occasion creates “independent agencies” (with varying levels of actual independence) that it wants insulated from the political process.  That’s been challenged on occasion as inconsistent with the constitutional scheme, but the Court has upheld various restrictions Congress has put on Presidential power over those agencies. CFPB is at the end of the continuum, though: it is funded independently through the Federal Reserve system and has only one director who serves a 5-year term and cannot be removed except for “inefficiency, neglect of duty, or malfeasance in office.” The case raises the question of whether Congress may so restrict the President’s authority to remove an administrative officer, but the Court may not reach that issue.  It could instead read the “for cause” clause so broadly as to negate any separation-of-powers concerns, or it could hold that the petitioner lacks standing to raise the issue (it’s a law firm that refused to comply with a subpoena when the CFBP was investigating its telemarketing practices for consumer debt-relief services, which is a bit removed from the Constitutional issues). Scotusblog offers a useful overview and a symposium with a range of views.
          There’s a lot of politics surrounding this case.  Elizabeth Warren had a very significant role in the creation of the CFPB.  Trump’s Solicitor General has declined to defend the constitutionality of the CFPB, so the Court asked Paul Clement (the Solicitor General under George W. Bush) to step in (he’s defended the structure but urged the Court not to reach that issue).  And Justice Kavanaugh dissented when the issue was raised in a similar case when he was still on the DC Circuit (PHH Corp. v CFPB was decided 7-3 in favor of CFPB by the full DC Circuit in 2018). 

The second case is an important but fairly procedural securities law issue. “Disgorgement” is essentially an order to surrender the ill-gotten gains.  A 2017 Supreme Court case (Kokesh v. SEC) held that disgorgement is a form of “penalty” that is subject to a statute of limitations, but it left open the question of whether disgorgement was available as an “equitable remedy” (the ancient common law power of courts to craft appropriate responses to findings of guilt) in SEC enforcement actions when the statute of limitation is not a bar. Liu v. SEC asks that question directly.  There’s an interesting NYT article that provides and overview and some details of the enforcement action, and this amicus brief by securities law scholars should really help you to follow the arguments. 

Wednesday, March 4

Abortion cases are some of the most contentious and heavily watched argument days, and that was before the most recent batch of state laws following the presidential election. The June Medical Services cases (one with Russo as the petitioner and the other with him as the respondent; earlier cases will list Gee, the prior Secretary of the Louisiana Department of Health) involve a Louisiana law that requires doctors who perform abortions to have admitting privileges in a hospital with 30 miles.  If that sounds familiar, it’s because the Court struck down a very similar Texas law in 2016 in Whole Women’s Health v. Hellerstedt. There, the Court found an “undue burden” after looking at the obstacles the law created as balanced against the benefits of the law.  It noted that the benefits were minimal: complications are very rare and most occur in the days following the procedure, after the woman had gone home. As to burden, in the Texas case the record showed that about half the state clinics had been forced to close.  Louisiana is focused on the “burden” half of the equation, arguing that it won’t be as serious there because the state only has 3 clinics and 4 abortion doctors total, and one already has admitting privileges and the others should be able to satisfy the new requirement. Again Scotusblog offers a symposium collecting a range of views. 
          This case will draw a huge crowd.  Lines to get into the courtroom will form the day before (with some probably arriving days before), but one former student got in (barely!) for the LGBT/Title VII case in January by joining the line in the early afternoon the day before.  So obviously no guarantee, but I’d say that if you’re willing to spend 24 hours in line, you’ve got a chance.  If you’re not, then it can be a great experience to go to take in the demonstrations outside the Court.  Protests will start during commuter hours the morning of the arguments and continue until the arguing counsel leave the court and give interviews and speeches out front.  During and immediately after arguments are typically when the crowds outside are biggest and most active.  The two cases are consolidated for one hour of argument, but they are the only arguments scheduled for today so I would expect them to run a little long.  With bar admissions and decision announcements starting at 10:00, I would expect arguing counsel to be leaving the Courthouse around 11:30.  

January cases

The Court returns from the holidays for oral arguments on January 13. This month starts with “bridgegate,” takes up other important criminal law and other issues, and ends with a major church-state case.

[arguments on Jan 13 involve technical ERISA and preclusion issues and are not recommended for the casual observer]

Tuesday, January 14

Kelly v. US is a really interesting public corruption case, involving criminal prosecutions that followed “bridgegate” – the September 2013 decision to create a traffic nightmare on the George Washington Bridge to punish the Fort Lee mayor for refusing to back then-NJ Gov Chris Christie. After all the public scandal, prosecutors noted that public funds had been wasted in putting on a fake “traffic study” as cover for the true motives, as well as changing and then restoring the traffic pattern. Two people were ultimately convicted of felonies: they used deception to cause the Port Authority to expend resources, which meets the statutory offenses of fraud and wire fraud (because some of the scheme was conducted by email).  The Third Circuit upheld those convictions. In seeking Supreme Court review, the defendants urge that reading the fraud statutes so broadly “would put every official action in the sights of the fraud laws, turning them into broad government ethics codes.” Scotusblog has a useful overview of the factual events and a symposium with a range of views.

The second case today, Romag Fasteners Inc. v. Fossil Inc., is not one I would ordinarily recommend to a casual observer but may be worth staying for after the first argument. It is a question of interpretation of the Lanham Act, involving trademark and copyright infringement. Some courts have read a “willfulness requirement” into the statute, requiring the infringer to turn over (“disgorge”) all profits only if the infringement was willful.  Here, Fossil was found to have acted in “callous disregard” for Romag’s intellectual property, but not willfully. Most of the legal organizations are lining up against Fossil, arguing that willfulness is not required if the judge otherwise finds that the circumstances of the infringement support an award of profits. A useful summary of the sides is here.

Wednesday, January 15

The only case today asks whether the Age Discrimination in Employment Act requires but-for causation or only that age was a motivating factor, in the context of federal employees.  ADEA requires (for employees aged 40 and over) that employment actions in the federal sector “shall be made free from any discrimination based on age.”  For many employment discrimination laws, it is well established that a plaintiff need only prove that the discrimination was a motivating factor, not that the action would not have been taken “but for” the employee’s race, religion, etc. For example, after much litigation on this, in 1991 Congress amended Title VII to make explicit that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000-e2(m). However, in 2008 the Supreme Court held in Gross v. FBL Financial Svcs that the ADEA provision involving private sector employees required but-for causation. But the provision involving private sector employees prohibits actions “because of such individual’s age,” and the plaintiffs here (federal employees) argue that the earlier-quoted language that applies to them, “free from any discrimination” is broader. See the Harvard CR-CL discussion for more detail about this case, Babb v. Wilkie.

[The Court observes Dr. King Day on the 20th]

Tuesday, January 21

Shuar v. US is an important consideration of the Armed Career Criminal Act. If a defendant is convicted of unlawful gun possession under federal law, ACCA requires the court to impose a mandatory minimum sentence of 15 years if the defendant had three prior convictions for a “violent felony” or “serious drug offense.” What constitutes a “violent felony” has been heavily litigated, and the Court has settled on a “categorical approach,” which considers only the nature of the crime rather than the individual’s specific conduct. So a conviction for burglary is a prior conviction for a violent felony, even if no force or violence was actually employed in that particular burglary. The Court has never squarely addressed whether this categorical approach applies to determining what is a “serious drug offense” as well. That’s the issue in this case, but with an unexpected wrinkle:  if the court looks only to the statutory elements of the drug crimes for which Shuar was previously convicted (and not to his actual conduct), they would not be “serious” under the ACCA. This case has not received much public attention, but the NACDL amicus brief is quite readable and should help to provide a good grounding in the issues.

Today’s second case is not recommended for the casual observer. Although mandatory arbitration is a developing and important area of the law, GE Energy Power Conversion France SAS v. Outokumpu Stainless USA is a more technical issue: “Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.”

Wednesday, January 22

The separation of church and state is before the Court today in Espinoza v. Montana Dept of Revenue. It involves tax breaks for donations to scholarships supporting attendance at private schools, and whether those scholarships can be used at religious schools. The tax office initially prohibited using those scholarships at religious schools. In order to avoid either discriminating against or supporting religion, the Montana Supreme Court struck down the whole program; no taxpayer support of religious or non-religious private schools. Church-state issues have been before the Court repeatedly in recent years, but we still lack a clear and coherent framework for resolving just how much (as the state put it) “room for play in the joints” there is between the free exercise clause (that prohibits unduly discriminating against religion and religious schools) and the establishment clause (that prohibits excessive governmental support for religion). Scotusblog has a good symposium; start with Amy Howe’s overview and then look at some of the disparate arguments.

October 2019

“First Monday” this year is October 7, when the Court returns from summer recess to hear the first set of arguments this term.  The Court typically hears arguments on Mondays, Tuesdays, and Wednesdays for two weeks in a row each calendar month.  Further information amount attending arguments are on this page.  This term, the Court will quickly take on some high-profile cases, involving Title VII coverage of sexual orientation and gender identity discrimination, a defendant’s right to a unanimous verdict, life without parole for one of the DC-area snipers, and other issues.  Those cases are discussed below.

Looking ahead, I will offer a post before the November arguments, which will include cases involving DACA and other immigration issues, the Clean Water Act, and police accountability.  Looking even further ahead, the Court has agreed to hear, but has not yet scheduled arguments in, cases involving environmental law, the Second Amendment, the death penalty, religious establishment, mismanagement of employee retirement funds, and other issues.  I will offer recommendations regarding those cases in the weeks before they are argued. This term is going to include a lot of cases that will generate great public interest.

Monday, October 7

The term opens with a case involving legal insanity and the death penalty, Kahler v. Kansas. Legal insanity means different things in different states.  Some states instruct the jury to consider whether the defendant was capable of understanding right from wrong and was morally responsible.  But in Kansas, a jury can consider mental capacity only as indication that the defendant did not have the mens rea (essentially, the intent required under the law) — in the case of murder, an intent to kill.  So in a classic example that the ABA notes in its brief, a father “who knowingly and intentionally killed his son under the psychotic delusion that he was the biblical Abraham, and his son the biblical Isaac” would not be legally insane under the Kansas standard. Predictably, this case has generated a large number of amicus briefs, and I strongly recommend reviewing at least one or two before the arguments to get a sense of some of the legal tests and positions that will be argued.  I also recommend arriving very early — these sorts of cases always draw a large crowd, as does First Monday even without a case that’s so contentious.

The second case this morning will not generate nearly as much public interest. Peter v. NantKwest Inc. involves the fees that someone has to pay to appeal the denial of a patent.  If you plan to stay for this argument (there will be a short break and many people will leave the courtroom after Kahler), read the overview here.

The Court will also hear an afternoon argument — an important one involving the right to a unanimous jury verdict.  Ten jurors found Ramos guilty of second degree murder, but two jurors voted to acquit. At the time, that was good enough to convict him under Louisiana law (although that changed with a state constitutional amendment in 2018, requiring unanimous verdicts going forward; only Oregon still allows split juries). The current state of the law is confused, at least according to Ramos’s attorneys.  The last time the Supreme Court directly decided this issue was in 1972, when it ruled that states could authorize convictions with less-than-unanimous juries.  However, it was a plurality opinion — no single view of the constitutional issues commanded a majority of the justices. Moreover, since then, the Court has been more emphatic that there should be “no daylight” between state and federal standards when Bill of Rights principles are “incorporated” by the 14th Amendment as applying to the states; and the Court has held that the 6th Amendment requires unanimous verdicts in federal criminal trials. This “incorporation doctrine” will be important in the arguments.  Also note the racism that underlies these provisions: at the founding, all states and the federal system required unanimous verdicts, but Louisiana changed that after Reconstruction allowed for black jurors and Oregon did so in 1934 amid public outrage over immigration. The primary brief covers these and the legal issues quite well, and there are a large number of briefs from advocacy organizations on his side; Louisiana is alone, but you can see all the briefs here.

Lines for afternoon arguments are hard to predict because they are relatively rare (although there’s another one next week). Many members of the public don’t know about afternoon arguments, although this one is significant enough that it could draw a crowd of interested lawyers and law students. Some people who arrive for the 10am arguments but don’t get in may also decide to be first in line for this 1pm argument.

Tuesday, October 8

The cases today involve employment discrimination on the basis of sexual orientation and gender identity — some of the most high-profile cases of the term. Although many states and cities have non-discrimination laws that specifically prohibit discrimination on the basis of sexual orientation or gender identity, many others do not and federal law does not include such phrases.  However, Title VII of the Civil Rights Acts prohibits discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2. Courts and others have disagreed about whether this language includes sexual orientation and gender discrimination. It’s unlikely Congress had this type of discrimination in mind when it wrote the law, and for some, that is enough to defeat such claims.  For an example of the opposite conclusion, there’s a remarkable 7th Circuit case, Hively v. Ivy Tech., in which the majority found for a lesbian based on a logical analysis that her sex was the reason for the discrimination:  a) the employer discriminated against her because she was in a relationship with a woman; b) if an otherwise identical employee were male and in a relationship with a woman, the employer would not have treated her this way; c) therefore, sex is the definitive variable and the discrimination was because of the employee’s sex. The majority reasoned that this analysis comports more with the judge’s role to apply the plain language of the law, not guess at what Congress had in mind when it chose that language.  In a concurring opinion, Judge Posner (a much-celebrated jurist who has since retired) was more bold, declaring a refusal to be an “obedient servant[] of the 88th Congress” and instead saying he was engaged in “judicial interpretive updating” of the law.

But that’s not the case being heard today….  I just find the two opinions to represent fascinating reasoning and exchange, and a good starting point for understanding why this is an issue.  For the cases today, listen to this ScotusTalk podcast and review the scotusblog overview, and see the many filings in the cases at the following links.  Briefly, Altitude Express Inc. v. Zarda and Bostock v. Clayton County both involve sexual orientation discrimination.  They will be argued together in the first hour.  In the second hour, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC will take on transgender discrimination.

People will begin lining up to hear these arguments some time on Monday, if not before.  If you are not willing to spend the night on the sidewalk, consider going to the Court to hear and/or take part in the demonstrations.  I would expect protests starting around 8am and they certainly will continue until after noon, when the arguments will end and arguing counsel will make their way to the sidewalk in front of the court to give speeches and interviews.

[No arguments are scheduled for Wednesday the 9th, and the Court is closed on Monday the 14th for Columbus Day.]

Tuesday, October 15

There are 5 cases today, all consolidated to be argued together.  The cases involve the authority of members of the Financial Oversight and Management Board created by the 2016 Puerto Rico Oversight, Management, and Economic Stability Act. Congress gave the Board broad powers, in response to a “fiscal crisis” — and it also authorized the President to appoint Board members without them being confirmed by the Senate. That’s a problem because the “appointments clause” says all Officers of the United States shall be appointed “by and with the Advice and Consent of the Senate” and Congress only has the authority to authorize the President alone to appoint “inferior Officers.” U.S. Const. Art. II, § 2. The line can be a little murky–the Supreme Court has said Officers are those who exercise “significant authority”–but these Board members had authority to rescind or revise laws and exercise other powers that almost certainly are inconsistent with their being mere “inferior Officers.” So a hedge fund and a union representing government workers sued to reverse Board actions on the basis that the Board Members did not have any authority because they were not confirmed as required by the Constitution.  The First Circuit agreed that their appointments were unconstitutional but declined to reverse their actions, on the basis of the “de facto officer doctrine” and a finding that there would be “negative consequences for the many, if not thousands, of innocent third parties who have relied on the Board’s actions until now.” The Supreme Court has granted cert. on the question “Whether the de facto officer doctrine allows for unconstitutionally appointed principal Officers of the United States to continue acting, leaving the party that challenges their appointment with an ongoing injury and without an appropriate relief.”

Wednesday, October 16

The first case today raises complex issues relating to preemption doctrine — but it does so in the context of undocumented immigration.  Garcia was already under investigation by a financial crimes detective when he was pulled over for speeding and told the traffic officer he was rushing to his job.  The routine check revealed the ongoing financial investigation, the officer and detective talked, and the next day the detective obtained Garcia’s I-9 form from the employer.  That form used a Social Security Number issued to another person.  Garcia was then charged under state laws against identity theft.  This has obvious political implications. The legal issue is that the I-9 form is part of a federal system, and the federal law specifies that the form and information on it “may not be used for purposes other than for enforcement of this chapter and [certain specified federal laws].” 8 U.S.C. § 1324a(b)(5). The Kansas Supreme Court held that “Garcia’s conviction must be reversed because the State’s prosecution based on the Social Security number was expressly preempted.”  The US Supreme Court has accepted cert. on “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.”

The second case today, Rotkiske v. Klemm, asks when the statute of limitations begins to run under the Fair Debt Collection Practices Act. A debt collector filed suit against Rotkiske but could not serve him because he no longer lived at the address and so withdrew the suit, but then refiled and served someone at the same old address, which the collector should have known was outdated.  Rotkiske had no idea, and had a default judgment entered against him. He did not learn of this until years later, when he tried to obtain a mortgage.  The issue for the Court is whether the statute of limitations begins to run when the misconduct occurs or when the plaintiff discovers the misconduct. The Fourth and Ninth Circuits have found a “discovery rule” but the Third Circuit in this case disagreed, holding that “the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.”

There is also an afternoon (1pm) argument today, challenging the life without parole sentence for one of the “DC area snipers” who was 17 at the time of the murders. This is another case with a lot of publicity. Malvo was sentenced in Virginia in 2004 to a term of two life sentences without the possibility of parole. The sentences were pursuant to pleas, under pressure of being charged with capital offenses.  A year later, the Supreme Court ruled that the death penalty was unconstitutional when the offense was committed by a minor.  In 2010, Miller v. Alabama held that mandatory life without parole was unconstitutional when the offense was committed by a minor. And in 2016, the Court clarified, in Montgomery v. Louisiana, that these rulings were to be applied retroactively. Therefore in this case, the 4th Circuit held that Marvo had to be re-sentenced.  He might still face life imprisonment, but the trial court was instructed “to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his ‘crimes reflect permanent incorrigibility’ or (2) whether those crimes instead ‘reflect the transient immaturity of youth,’ in which case he must receive a sentence short of life imprisonment without the possibility of parole.” The state, on the other hand, urges that these cases apply only to sentencing schemes that require life without parole, while Virginia’s law provided for judicial discretion. Take a look at the briefs in this case and be prepared for a large and emotional crowd.

April cases – final arguments of the year

This month, the Court completes oral arguments on all cases scheduled for this term.  I particularly recommend cases involving offensive trademarks, access to corporate information via FOIA, and the addition of a “citizenship question” to the Census.

Monday, April 15

The first case today reopens debates about offensive trademarks.  In 2017, the Supreme Court held in Matel v. Tam that the clause in the 1946 Lanham Act prohibiting registration of marks that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” 15 U. S. C. §1052(a), was unconstitutional. It is possible to engage in commerce and even sue to protect your brand without registering the mark with the Patent and Trademark Office, and this is commercial (rather than political) speech so a lesser standard arguably applies, but the Court held that under any possible standard, the government has no legitimate interest in suppressing speech merely because it is offensive.

The vote was 8-0 to strike down the clause, but there were two opinions joined by 4 Justices each, so there is some confusion about how far a majority is willing to go in undoing other aspects of the Lanham Act.  Which is where this case, Iancu v. Brunetti, comes in.  Monday’s argument involves a dispute involving the apparel company FUCT, which was denied registration based on a similar provision, pertaining to “immoral” or “scandalous” trademarks.  It is a potentially closer case because obscene material gets less First Amendment scrutiny. There is useful background here and an argumentative recitation of parties’ positions here.

Today’s second case is not one I would ordinarily recommend to a casual observer, but may be worth staying for. Emulex Corp. v. Varjabedian involves interpretation of the various clauses in the Securities and Exchange Act’s § 14(e): “[i]t shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer.” 15 U.S.C. § 78n(e). Most Circuits have held that the final clause’s explicit mention of fraud should be imported to require that the misconduct described in the earlier clauses also are actionable only if there was deliberate deception, but the 9th Circuit in his case held that negligence was sufficient.

[Cases on Tuesday and Wednesday are not one’s I would recommend for most observers.]

Monday, April 22

The Freedom of Information Act’s “exemption 4” provides that government agencies should not release “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Circuits have come to different conclusions about what is required for information to be deemed “confidential.” The court has suggested it may resolves those splits in Food Marketing Institute v. Argus Leader Media.  A useful overview of the case is here, but I also recommend at least glancing at a couple of amicus briefs from each side — the case has, predictably, drawn considerable interests from watchdog groups and trade associations.

Today’s second argument is a technical procedural question but an important one: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.” Fort Bend County, Texas v. Davis.

Tuesday, April 23

The addition of a “citizenship question” to the Census is before the Court today. Department of Commerce v. New York is one of the more contentious cases this term; I won’t say much about it here since it has received so much publicity. The Court first accepted 2 issues:

(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;
(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis;

But in March it added another question:

The parties are directed to brief and argue the following additional question: Whether the Secretary of Commerce’s decision to add a citizenship question to the Decennial Census violated the Enumeration Clause of the U.S. Constitution, art. I, §2, cl. 3.

The case has generated an extraordinary number of amicus briefs.  Scotusblog offers a useful symposium with a range of views.

There is also an afternoon (1pm) case today that involves an important issue:  Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. Mitchell v. Wisconsin.

 

Oct 29 – Nov 7

Some important cases in the next block of arguments, including arbitration, death penalty, and class action settlements.

Monday, October 29

The court takes on arbitration agreements in both cases this morning.  Pre-dispute arbitration agreements are contracts in which the parties agree that any dispute they may have (usually involving a specific subject matter, like an employment or business relationship) will go to arbitration rather than be resolved in court.  Courts are therefore obligated to reject any lawsuit that should instead be arbitrated (by granting a “motion to compel arbitration”). The Federal Arbitration Act (FAA) requires all state courts to enforce these agreements — and in recent decades, the Supreme Court has steadily struck down various legal doctrines that state courts had been trying to deploy to limit arbitration agreements.

One unresolved issue is who decides whether the parties have signed a contract to arbitrate disputes of this kind.  If the agreement is to arbitrate disputes “arising out of the employment relationship,” is that just about wages and benefits or does it include a fall in the workplace parking lot, or a fight at an after-work happy hour?  Typically, if someone files a lawsuit then it is the judge’s job to determine if there’s an agreement that covers that suit.  But parties also can agree to let the arbitrator decide “questions of arbitrability.”  If there is such a clause, then arguably every lawsuit must first be reviewed by an arbitrator, who will decide whether the court can have that case or if the dispute falls within the scope of the arbitration agreement.

In this morning’s first case, Henry Schein Inc. v. Archer & White Sales Inc., there is (at least arguably) an agreement that the arbitrator will decide questions of arbitrability. But the arbitration agreement also clearly states that it does not cover “actions seeking injunctive relief.”  One company filed suit, the other moved to compel arbitration (including of the question whether the arbitration agreement covers this dispute), and the court ruled that it wasn’t going to send the question to an arbitrator because the lawsuit sought injunctive relief, so the suggestion that the agreement covered this type of lawsuit was “wholly groundless.”  This is a doctrine other courts have relied upon, but it’s not clear it’s allowed under the FAA, which strongly favors arbitration.  So the Court has accepted cert. on “Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

In the second case, Lamps Plus Inc. v. Varela, there’s agreement that the dispute goes to arbitration, but the disagreement is over whether the party can bring a class action claim to arbitration.   (It’s also an interesting factual context:  the employer fell for a phishing scam and revealed personal information about employees.)  The arbitration agreement used common “boilerplate” language that did not specify class actions as either permitted or prohibited, so the court followed a typical “rule of construction” that ambiguities are resolved against the party that drafted the agreement, which in this case meant that class actions were allowed. Again, given the FAA’s pro-arbitration stance, the issue is whether state court doctrines can impose on the arbitration process in this way.

Tuesday, October 30

An interesting tax case (!) involves rights under the Yakama Treaty of 1855.  Washington State taxes fuel that enters the state, and Cougar Den is a fuel wholesaler that brings fuel into Washington by truck.  But Cougar Den is owned by the Yakama Indian Nation, and the Treaty gives them the right to “travel upon all public highways.”  On that basis, the company refused to pay a $3.6 million tax bill.  The closeness of the legal question is illustrated by the conflicting rulings in this case:  at the first hearing, an Administrative Law Judge sided with the tribe; the Director of the tax office reversed that ruling and sided with the state; a state trial level court reversed the Director and ruled for the tribe; and then the State Supreme Court reversed the lower court order and ruled for the state. An interesting and thorough discussion of each side’s arguments are available here; also see the case page for Washington State Department of Licensing v. Cougar Den Inc. to review more of the briefs in this case.

The second case is a technical issue of appellate criminal procedure.  One basis for an appeal is “ineffective assistance of counsel,” but the defendant must show “prejudice” — not only that the lawyer did something wrong, but that the lawyer’s error made a difference in the outcome.  Some types of errors get a “presumption of prejudice.”  One such type of error is failing to file an appeal (for whatever other basis).  But in Garza v. Idaho, the lawyer didn’t file an appeal (even though the client asked him to) because the defendant had previously signed a plea agreement that waived his right to appeal.  The Court will (hopefully) resolve a Circuit split over whether the presumption of prejudice applies where the defendant had waived appellate rights. It may seem like an obscure technical issue, but issues like the validity of the waiver could be raised more easily if the presumption of prejudice applies.

Wednesday, October 31

Frank v. Gaos is a fascinating case, with unusual alliances, challenging cy pres awards in class action settlements.  Lawsuits against Google for disclosing search histories to third parties without consent ultimately settled for $8.3 million, most of which would be paid to several nonprofits according to a “cy pres award.”  This is a method (short for the French “cy près comme possible,” or “as near as possible,” and pronounced by most US lawyers like sigh-prey) that can be employed when it is impossible or impractical to distribute funds (or other property) to individuals who were wronged.  In this case, the parties agreed that it would be impractical to determine what share would be appropriate to apportion to each Google user who had varying levels of personal information disclosed, so the funds went to organizations involved in internet privacy.  The lead objector is from the Competitive Enterprise Institute, but those complaints are supported by groups ideologically aligned with them as well as by the Electronic Privacy Information Center and others from elsewhere on the political spectrum.  For a view on the other side, see the brief from Public Citizen and a group of law professors.  The Court has accepted cert. on “Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.'”

The second case today, Jam v. International Finance Corp., is not one I would recommend to the casual observer, but stay for it if you are interested and can read up on it in advance.  “Whether the International Organizations Immunities Act—which affords international organizations the ‘same immunity’ from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.”

Monday, November 5

(Both cases today will be hard to follow for a casual observer.  Sturgeon v. Frost involves NPS authority over private and native land holdings in Alaska.  Virginia Uranium, Inc. v. Warren is a pre-emption issue regarding state regulations that impact nuclear material.)

Tuesday, November 6

A significant case involving the death penalty is up first today. This is the second of two major capital punishment cases this term (the first, Madison v. Alabama, was argued Oct 2 and noted in my prior post).  See the interesting and detailed discussion of both from The Atlantic.  Bucklew v. Precythe does not challenge the sentence or even lethal injection as a general matter, but argues that this individual has a specific medical condition that will cause him to experience unusually intense pain from the cocktail.  The legal issues are:

(1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

(The second case today again is not one I’d widely recommend.  BNSF Railway Company v. Loos involves the Railroad Retirement Tax Act.)

(Wednesday, November 7, also involves two cases that I would not recommend.  Culbertson v. Berryhill involves an unusual Social Security taxation issue.  Republic of Sudan v. Harrison is about how you serve process on a foreign state.)

 

October 2018 term opening (& more)

First Monday brings environmental law and age discrimination cases, with other cases this month involving sex offender registration, execution of people with mental disabilities, arbitration agreements, detention of noncitizens, and liability for Navy sailors’ exposure to asbestos.

I also want to highlight a few cases that will be heard sometime this term but have not yet been set for argument.  I’ll have posts on each in the weeks before the argument.

  • Gamble v. United States asks “Whether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”  This is the doctrine that allows the federal government to charge someone even if they have been tried (and even if acquitted) for the same conduct in a state trial (assuming the same conduct is illegal under both federal and state law).  This could have extremely far-reaching implications.
  • Timbs v. Indiana: “Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.”  So odd that this has not been resolved by now!
  • Nieves v. Bartlett: “Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.”  Ie, do you have a case if you did something illegal but it’s clear that the real reason the police arrested you was because they didn’t like the content of your speech?

And outside the Supreme Court (for now!), the climate change lawsuit brought by young people against the EPA has survived the initial efforts to dismiss the case and is worth watching.

Now, on to the first two weeks of the term:

Monday, October 1

The first case, Weyerhaeuser v. US Fish & Wildlife Service, involves the Endangered Species Act and deference to administrative agency interpretations.  US Fish and Wildlife designated land owned by Weyerhaeuser as critical habitat for the dusky gopher frog.  The frog has not actually been on that land for decades, but the land could be made suitable for them, and FWS interpreted the ESA as allowing such land to be considered critical habitat, even if not currently habitable.  In siding against Weyerhaeuser, the Fifth Circuit held that the agency’s interpretation was entitled to deference.  That’s an important concept in administrative law and likely will be a focus of the argument, so it’s worth reading the Circuit Opinion as well as this general overview.

Next is Mount Lemmon Fire District v. Guido, interpreting the Age Discrimination in Employment Act. ADEA defines covered employers to mean “a person engaged in an industry affecting commerce who has twenty or more employees . . . .  The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U.S.C. § 630(b).  The 9th Circuit read the two sentences as separate, so even small political entities (like the fire district here) are covered.  Other Circuits have held the opposite, and the Court has accepted cert. to resolve the “circuit split.” It should be an interesting argument; before attending, take a look at an amicus brief from the employee side and another from the government’s side.

Tuesday, October 2

Two criminal law cases today.  The first, Gundy v. United States, involves the Sexual Offender Registration and Notification Act and the nondelegation doctrine.  Nondelegation holds that Congress may not grant too much lawmaking authority to the Executive branch.  Congress routinely grants administrative agencies and officers considerable powers to make regulations, but it must at least spell out an “intelligible principle” that the Executive must follow (and that courts can require them to follow) in carrying out that discretion.  The nondelegation doctrine struggles to allow for the complex administrative state we have without completely abandoning the system of checks and balances.  In this case, SORNA authorizes the Attorney General to decide the circumstances under which the law would have retroactive effect.  Take a look at the amicus brief from a group of legal scholars.

Next up is a death penalty case, in the context of a mental disability that leaves the prisoner with no memory of committing the offense. See the interesting discussion from the American Psychological Association.  The official legal question presented in Madison v. Alabama is:

Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Wednesday, October 3

The first case today, Knick v. Township of Scott, Pennsylvania, is not one that I would generally recommend for a casual observer.  It involves the takings clause, which always gets some interest, but this particular case has some procedural complications and is only addressing the “exhaustion of remedies” issue.  But if you’re interested in it, or going for the second case, then read up on it here.

Arbitration agreements have become increasingly common, and in the past several years the Supreme Court has been holding that the Federal Arbitration Act (FAA) preempts a wide array of state law doctrines that had limited their enforceability. Generally, if someone files a lawsuit but there’s a valid arbitration agreement, then the FAA requires the court to dismiss the case and send the dispute to arbitration.  Today the Court takes on “arbitrability” — who decides if there is a valid arbitration agreement?  Some arbitration agreements require that an arbitrator decide all questions, including whether the arbitration agreement covers the particular dispute.  New Prime Inc. v. Oliveira involves transportation workers, and the FAA specifically exempts transportation workers, so the lower courts held that they did not need to consider those recent FAA preemption cases.  But the Court has granted cert. on:

(1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

This one will be heavily watched by business and consumer and employee advocates. Take a look at the Public Citizen overview and its amicus brief.  Also note that the Court has accepted cert. in two other arbitration cases this term:  Lamps Plus and Henry Schein will be argued Oct 29; more on them to come in a later post.

[the Court does not hear arguments on Columbus Day]

Tuesday, October 9

All three cases today involve statutory interpretation of terms in the Armed Career Criminal Act.  Stokeling v. United States will be argued first and separately, and involves the requirement of enhanced penalties for people with prior “violence felonies.”  Stokeling argues that his prior robbery conviction did not involve a use of force sufficient to constitute violence, but precedent has required a “categorical approach” to deciding if the prior conviction was for a crime that is a violent felony.  US v. Sims and US v. Stitt are consolidated for one hour total and both involve the same question: “Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act.”

Wednesday, October 10

Nielsen v. Preap is about detention of noncitizens who have been convicted of a crime. Ballotpedia offers a useful summary; follow the link for more and key documents:

Under the mandatory detention provision of the Immigration and Naturalization Act, the government is required to detain noncitizen U.S. residents who were convicted of certain crimes “when…released” from criminal custody. The government had relied on this provision to begin detaining lawful permanent residents years after their release from criminal custody. Three filed suit, alleging that because they were not detained immediately when they were released from criminal custody, the government could not rely on the mandatory detention provision to hold them without bond. The Ninth Circuit agreed, ruling that the mandatory detention provision only applies to noncitizens who are detained by immigration authorities promptly following their release from criminal custody.

The second case today, Air and Liquid Systems Corp. v. Devries, raises some technical jurisdictional and common law issues, but comes in the context of wrongful death claims by widows of Navy sailors who died from cancer after exposure to asbestos in the course of their service.  They brought suit against the manufacturers of products that contained asbestos.  There has been a lot of asbestos litigation over the years, resulting in development of various liability doctrines. But because of the context, the Court has accepted cert. on something new: “Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.”

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.

February cases

In the last two weeks of the month, the Court will hear arguments regarding union agency or “fair share” fees, political t-shirts worn to the voting booth, subpoenas to US companies for information stored on foreign servers, and other important issues.

Tuesday, February 20
(the Court observes Presidents Day on Monday)

Currier v. Virginia is a fairly technical issue regarding double jeopardy.  The doctrine of “issue preclusion” aka “collateral estoppel” prevents re-trial of a fact that was necessarily determined by a jury in a prior case.  So even if the defendant is not charged with the same crime, it might still constitute double jeopardy if the second criminal offense relies on a factual question that a jury resolved in favor of the defendant in an earlier trial.  In this case, the defendant was accused of stealing guns.  He had a prior felony conviction, so it would have been illegal for him to even possess the guns.  With his agreement, the state first tired him for larceny and breaking and entering, and severed the charge of “felon in possession of a firearm.”  The jury found in favor of the defendant in the first trial, but the state proceeded to try him for possession anyway, and this time convinced the jury.  The issue is whether issue preclusion, and thus the double jeopardy clause, applies even where the defendant agreed to sever the charges.  The arguments on both sides are described in scotusblog’s preview.

The second case today, City of Hays, Kansas v. Vogt, involves the right against self-incrimination, interestingly in the context of alleged police misconduct.  Under threat of being fired, a police officer told his supervisors how he came into possession of a knife while on duty.  He was then charged with a range of crimes, and although the charges were dropped before trial, the officer’s statements regarding the knife were used against him during a probable cause hearing. When he had trouble finding another job, he sued the City for violating his constitutional rights.  The Fifth Amendment prohibits being “compelled in any criminal case to be a witness against [oneself].”  It’s fairly settled that threat of termination is compelled, but is use during a preliminary proceeding covered by the amendment? The City is being represented by the UVA Law School’s Supreme Court Litigation Clinic, which has an useful story about the case. The Court accepted cert. on the question “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.”  A collection of government employers filed an amicus brief urging the Court to hold that the city cannot be held liable for the decision of the prosecutors; it will be interesting the see if the Court views this as within the scope of the question they agreed to review.

Wednesday, February 21

Both cases today will be a bit technical for the casual observer, but nevertheless should be interesting.

First, Rosales-Mireles v. U.S. involves waiver and plain error, in the context of illegal immigration. The defendant pleaded guilty to “illegal reentry” (returning to the US after being deported).  He had a prior criminal history, which increases the sentence.  However, the trial court counted a prior conviction for misdemeanor assault twice.  The government concedes that this was in error and placed him in the wrong sentencing guidelines category (77-96 months instead of the correct 70-87 months; he got 78 months). However, there was no objection at the time of sentencing, which means that an appellate court may only correct it if it constitutes “plain error.”  In the Fifth Circuit, this means not only obviously wrong but is the kind of error “that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”  The Circuit held that this error was not of that nature, and declined or order re-sentencing. The Supreme Court has accepted cert. to resolve whether that final condition for plain error review is appropriate.

For the second case, Dahda v. U.S., the official question presented is probably sufficient:  “Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.”

Monday, February 26

An extremely important case involving union “agency fees” or “fair share fees” is up first today, Janus v. AFSCME. In order to prevent discrimination based on union membership, the National Labor Relations Act requires that all employees be covered by a union contract — so workers are not getting different wages or working conditions depending solely on whether or not they joined the union.  But negotiating, administering, and enforcing a contract costs money.  Therefore, the Supreme Court held in Abood v. Detroit Board of Education (1977) that even employees who decline to join the union can be required to pay the union for these expenses.  Unions are required to calculate their spending precisely, and bill non-members an appropriate fraction of the membership fee; only money collected from voluntary members may be spent on non-workplace activities (like electoral campaigns).  This principle has been under attack in recent years, and many people predicted that Justice Scalia would have been the fifth vote to reverse these precedents if he hadn’t died after cert. was granted in Friedrichs v. California Teachers Ass’n but before a decision was issued.  The resulting 4-4 split left in place the Circuit court’s decision, which had ruled for the union based on those longstanding precedents.  This case brings the issue back to the Court. Scotusblog has a useful overview as well as an online symposium with a range of views.  This is a very important case and will draw a lot of attention — and early and long lines to get inside, but also press conferences and protests out front.

Ohio v. American Express is an antitrust case, arising out of differences in how AmEx, compared with Visa and MasterCard, set prices and work with merchants.  The Second Circuit sided with AmEx, but an unusually wide range of organizations are lining up on the other side.

Tuesday, February 27

The clash of new technology and old legal presumptions is on display in US v. Microsoft.  The federal government served a subpoena on Microsoft at their Washington state headquarters for emails of a suspected drug dealer. It agreed to turn over records stored in the US, but not the content of the emails, which were stored in servers in Ireland.  There is a general presumption that US laws do not apply outside the US (extraterritorial application), and the Court has never resolved how this relates to the Stored Communications Act or technology of this nature in general.  There are lots of interesting and nuanced concerns about effectiveness of our laws but the need to avoid putting international actors in a conflict with other countries’ laws.  Scotusblog has an overview and an online symposium with some really compelling insights.

An absurd example of First Amendment retaliation hits an 11th Circuit doctrine in Lozman v. City of Riviera Beach, Florida.  During the public comment portion of a City Council meeting, Mr. Lozman was instructed by a council member not to discuss his opposition to an eminent domain plan, and he was arrested when he persisted.  The transcript of an earlier meeting revealed a plan by council members to “intimidate” him.  He sued, but lost the trial and sought a new trial on various grounds.  The 11th Circuit held that the police officer had probable cause to arrest him for disrupting a public meeting, and therefore there could be no lawsuit for unconstitutional retaliation or any other grounds, because of the Circuit’s rule that a finding of probable cause bars any other such claims.  See this overview and the ACLU position.

Wednesday, February 28

First Amendment protection for political expression at the voting booth is the issue in Minnesota Voters Alliance v. Mansky:  “Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.”  Again, Scotusblog has a useful overview and interesting symposium.

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.