February 2016 – Prof. Zachary Wolfe, Esq.

One of the most anticipated arguments of the term–involving abortion rights–is scheduled for Wednesday. The Court also takes up gun control for persons convicted of domestic violence and the death penalty on Monday.

Monday, February 29

The first case will be viewed as a gun control issue in the context of domestic violence, but involves questions of Congressional intent where a federal law is triggered by a state law conviction. Federal law prohibits firearm possession by someone who has been previously convicted of a crime of domestic violence. Such a criminal act generally evokes intentional conduct, but 34 states have reckless assault laws. The question is whether Congress intended for the federal prohibition to extend to convictions for laws that required only reckless conduct. Full write-up of all the issues in Voisine v. US is here.

The second argument is in a death penalty case. The official question presented in Williams v. Pennsylvania describes the case well: Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Tuesday, March 1

The cases today are important but fairly limited in scope. Nichols v. US asks whether federal law requires a sex offender to update his registration in the state where he was convicted when he resides outside the US. Husky International Electronics v. Ritz involves the “actual fraud” bar to discharging debts in bankruptcy.

Wednesday, March 2 – abortion

It has been eight years since the Supreme Court has directly taken on questions relating to laws that restrict access to abortion. States may regulate abortion providers, just as they may regulate other medical practices, but laws that place an “undue burden” on a woman’s ability to access abortion are unconstitutional. Regulations that improve safely and health typically survive the “undue burden” test, but in this case, providers argue that the restrictions Texas put into place do not actually enhance health and safety, despite the state’s claimed purposes. The Court has accepted cert on the question of whether the Fifth Circuit erred by “refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health.” Linda Greenhouse has co-authored a useful overview of this case and the history of the Court’s approaches to abortion rights and restrictions.

This case will draw a huge crowd. It will be worth going to the Court just to see (or be part of) the crowds, demonstrations, and press conferences. Demonstrations will start around 8:00am, may calm down a bit during the 10:00 argument and as people come and go, and then there will be more renewed demonstrations and press conferences when the arguing counsel exit the Court, probably around 11:30. If you want to get into the courtroom, you’ll need to get there very early; I wouldn’t be surprised if enough people camp out overnight to fill the court. More than 80 amicus briefs have been filed, and the Solicitor General has been granted permission to participate in oral argument (in addition to counsel for the clinic and for Texas, the parties to this case). I don’t see an order extending time for the argument, but no other case is scheduled for this day and I would expect the argument to run a little past the usual hour.

Post-Scalia oral arguments begin next week, in cases involving veteran preferences, unlawful searches and the exclusionary rule, and federalism concerns in criminal law.

Monday, February 22

The first case today involves the preference for veteran-owned small businesses (VOSB) to be awarded government contracts. Federal law requires that government agencies “shall award contracts” to a VOSB if two or more bid for the contract at a fair price. In Kingdomware Technologies, Inc. v. United States, the VA wanted a new type of information technology. It consulted a list of companies that have supply contracts with the government and selected one that was not a VOSB. A VOSB company challenged this, saying the VA should have conducted a market analysis, seen that VOSBs could have provided this tech, and put it up for bid. It emphasizes the “shall award” part of the law; the VA emphasizes the “contracts” part of the law, asserting that a new order through a company with an existing government contract is just an order and not a contract, so not covered by the “shall award contracts” law. In addition, there are two conflicting “canons of construction” (i.e., rules for how to interpret laws) that come into play in this case. The first is known as “Chevron deference” and holds that courts should not override a federal agency’s interpretation of a law if there is ambiguity and the agency’s interpretation is not unreasonable. This would, obviously, favor the VA. But there is also the “veterans canon” which holds that if a law is ambiguous and involves veterans, it should be interpreted to favor veterans. Take a look at this relatively long article. If you go, be prepared to follow some jargon and alphabet soup.

The second case today is an important consideration of the exclusionary rule, which holds that evidence obtained illegally may not be used against the defendant. In Utah v. Strieff, the police received an anonymous tip about a drug house and an officer stopped someone who came out of the house, demanded his ID, and ran a warrants check. This was unlawful; the government concedes that the officer did not have reasonable suspicion to require the individual to stop and identify himself, as required for a “Terry stop.” The unlawful stop and ID check resulted in realization that he had an outstanding “small traffic warrant,” so he was then arrested and searched, and found to be in possession of meth and drug paraphernalia. The defendant moved to suppress the incriminating evidence because its discovery all flowed from an illegal seizure. The government argues that the intervening event of discovery of an outstanding warrant makes the initial illegal stop irrelevant. Ultimately, this case will reveal something about the Court’s attitude toward the exclusionary rule as a means to curb and correct unlawful searches, as this article discusses in more detail.

Tuesday, February 23

The first case today involves Federalism concerns in the context of criminal law. The Hobbs Act makes it a federal crime to commit robbery or extortion that affects interstate commerce. It was originally enacted to reach racketeering, but now is often used in other context, such as drug crimes (as in this case, Taylor v. US). The question in this case is whether the government has to show a connection with interstate commerce in each individual case or if it can rely upon a general principle “that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.”

The second set of arguments are on two consolidated cases involving damages for patent infringement. The Patent Act provides for enhanced damages (extra money), but the courts have limited that to willful misconduct under a stringent test. The Supreme Court appears suspicious of those limitations, and has granted cert on the question of “Whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284, that is the same as the rigid, two-part test this Court rejected last term in Octane Fitness, LLC v. ICON Health & Fitness, Inc. for imposing attorney fees under the similarly-worded 35 U.S.C. § 285.”

[Wednesday’s cases involve complex issues under Federal Energy Regulatory Commission (FERC) programs and would not be recommended for the casual observer. Recommendations for the week of Feb 29 will be posted later.]

Month: February 2016

Feb 29 – March 2 cases