death penalty – Prof. Zachary Wolfe, Esq.

April 15-17 cases

April 14, 2024April 14, 2024case suggestionsLeave a Comment

There are two more weeks of regularly scheduled arguments in the “October 2023” term. I want to get this post up concerning the upcoming week; another post to come concerning the final cases. That final week will have important and high-profile cases concerning anti-homelessness ordinances, immigration, union injunctions, abortion, … oh, and Trump’s claim of immunity! Details on those cases to be posted by the end of this week.

But first, this week has cases involving public corruption, malicious prosecution, ineffective assistance of counsel in death penalty cases, … oh, and January 6 insurrectionists!

Monday, April 15

First up is a type of public corruption case, in which the question is whether a federal law — that prohibits an official of an organization or governmental entity from accepting “anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more” — prohibits “gratuities” or only pre-arranged quid pro quo bribery. In Snyder v. U.S., Snyder was the Mayor of Portage, Indiana who directed his friend and city official to conduct a bidding process to purchase two garbage trucks. The prosecution argued that the bid description favored a particular company, which ultimately won the contracts. Less than three weeks later, the winning company gave Snyder a $13,000 payment “for his consulting work.” (More details, including his tax problems and other indictments here.) Snyder argued the federal law, 18 U.S.C. § 666(a)(1)(B), applied only to bribes, not gratuities, but the Seventh Circuit noted that the law does not use either term and held that “[t]he statutory language ‘influenced or rewarded’ easily reaches both bribes and gratuities.” The Seventh Circuit has a long set of precedents going back nearly 20 years from that and other Circuits that have similarly held that pre-arranged quid pro quo agreements are not necessary to violate § 666.

The Circuit went on to find that the evidence was sufficient that Snyder “corruptly” construed the bidding process intending to be rewarded later. It gives a useful context and makes for entertaining reading, so a longer quote from the decision:

Mayor Snyder put his good friend Reeder in charge of the bidding process even though Reeder had no experience administering public bids. Reeder then tailored both bid requirements to favor GLPB. In the first-round invitation, Reeder based the chassis specifications on a Peterbilt chassis, and after GLPB told Reeder it could deliver trucks in 150 days, Reeder included a 150-day deadline. In the second round, Reeder tailored the bid specifications to match the truck that had been sitting on GLPB’s lot even though the truck was not the manufacturer’s current model. The second invitation to bid was issued after Mayor Snyder tried unsuccessfully to purchase the GLPB truck outright. Evidence at both trials established that Snyder communicated with the Buhas around the time of the second-round bid.
Less than three weeks after the second contract was awarded to GLPB, the Buhas had GLPB pay Snyder $13,000. When questioned by the FBI, Snyder claimed the $13,000 check was payment for healthcare and information-technology consulting he performed for GLPB. When pressed for specifics, Snyder could not identify any work product he provided GLPB. He said that he went to meetings and “discussed things.” Although Snyder claimed to have advised GLPB on healthcare options after passage of the Affordable Care Act, he could not recall what decision GLPB made regarding its employees’ insurance coverage. The government subpoenaed GLPB and Snyder for all documentation, correspondence, work product, and billing records related to Snyder’s consulting work for GLPB. No such evidence was produced.

Second argument

The second argument today concerns the ability to bring a malicious prosecution claim. Suppose you are charged with multiple crimes, some of which are baseless allegations but others of which have legitimate grounds. If the “charge-specific rule” applies, then you can sue over the baseless charges. If the “any-crime rule” applies, then you cannot sue at all. Interesting questions of state law implications when suing under the federal civil rights statute, and other issues, are nicely described by Cornell Law’s LII post.

Tuesday, April 16 – Jan 6 cases

Like many January 6 insurrectionists, the defendant in Fischer v. US was charged with, among other things, obstructing an official proceeding in violation of 18 U.S.C. § 1512. Although the section is titled “Tampering with a witness, victim, or an informant” and much of it concerns witnesses or evidence, subsection (c) provides for imprisonment for up to 20 years of anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Amy Howe at SCOTUSBlog has a very thorough description of the arguments and legal issues; highly recommended reading. The DC Circuit decision is also quite readable and strong — with a comprehensive and clever call-out to any “textualists” who might be ideologically inclined to favor the insurrectionists (“If a statute’s language is clear, then that language controls.”).

This is the only case scheduled for argument today. Obviously, expect it to run long.

Wednesday, April 17

Thornell v. Jones involves ineffective assistance of counsel in the context of the death penalty. Jones was convicted (Thornell is the director of the Arizona Department of Corrections) of murder. At sentencing, as DPIC explains, his lawyer “did not present evidence in his possession that Mr. Jones had received treatment for mood disorders, attempted suicide five years before the murders, spent time in a mental institution, and suffered multiple neurochemical deficiencies. Mr. Novak did not present any additional family witnesses and the court-appointed expert conducted only a ‘short and cursory evaluation.'” The case has been up-and-back to the Court before. Initially, the district court held that Jones could not show prejudicial error, the Ninth Circuit reversed, and the US Supreme Court summarily reversed and remanded with instructions to reconsider the case in light of the Court’s recent decision in another case (which held that another death penalty petitioner had failed to show prejudice due to the extensive evidence that the prosecution presented). Again, the lower court ruled against Jones and, again, the Ninth Circuit reversed, this time explaining that the lawyer’s “failure to investigate and present evidence of a defendant’s mental defect constitutes deficient performance.” There will be a lot of argument about appropriate standards and criteria for ineffective assistance claims; I recommend reviewing the NACDL brief.

This is the only case scheduled for argument today.

October 2021 Arguments

August 16, 2021case suggestions

The Court ~~has not yet said how arguments will be conducted when it returns from summer recess on “First Monday,” October 4, for its 2021 term.~~ There had been considerable speculation that it would return to in-person arguments, but that was before we saw the full impact of the Delta variant. I’ll update this page when I can, or check the Court’s page on covid announcements. edit: has now announced that although the public will not be allowed in the courtroom this calendar year, the arguments will be in-person with counsel and Justices in the courtroom, so presumably following the old style of questioning.

On the substance of argument options, Scotusblog has an interesting symposium; I fully agree with Lyle Dennison’s critique of the way arguments had been conducted by phone, although others at that symposium feel differently. See the link at the top of this page for “online access.”

Regardless of how the arguments will be conducted, there are some interesting and important cases in the first block of arguments. Highlights include the CIA state secrets privilege, an abortion case (although a preliminary procedural issue this month), and the Boston Marathon bomber’s death penalty appeal.

First Monday, October 4

The first case this term is the unusual case in which the Court has original jurisdiction — a dispute between states. That gives it a certain interest, but I’m afraid that anyone not invested in the dispute (or hydrogeology in general) might find it a bit less compelling than the typical Supreme Court argument. Mississippi v. Tennessee involves groundwater contained in the Middle Claiborne Aquifer; “Mississippi believes the City of Memphis is stealing its groundwater.” That’s the opening line from the Special Master’s report, which is a good place to start if you want to understand the dispute.

Next up is a criminal law case, Wooden v. U.S. The Armed Career Criminal Act provides for enhanced penalties for someone in illegal possession of a gun if they had “three previous convictions . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In this case, the defendant committed theft from 10 different units in a mini-storage facility. The Court has accepted cert. on “Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were ‘committed on occasions different from one another’ for purposes of a sentencing enhancement under the Armed Career Criminal Act.” NACDL has an interesting amicus brief arguing that whether individual criminal acts are committed on the same “occasion” or not is a factual question that should be resolved by a jury rather than the judge.

Tuesday, October 5

Today’s first case involves federal habeas review of criminal convictions. Two important concepts for this case: “harmless error” and AEDPA’s “clearly established Federal law” standard. Harmless error means the trial court allowed something legally wrong to occur but the outcome would have been the same regardless. In this case, the defendant was shackled during trial, which the Michigan state courts agree was unconstitutional but found to be “harmless error.” The federal courts disagreed, noting that the defendant was claiming self-defense and being shackled might have made a juror less likely to believe that claim (so it was not harmless but rather may have prejudiced the jury). Michigan now says, even if the state court was wrong about harmless error, there needs to be a separate finding that the reasoning was contrary to clearly established Federal law. The Sixth Circuit says that question was “subsumed” in the harmless error analysis (failing to recognize prejudice to the defendant is, necessarily, contrary to clearly established law). There is a “circuit split” on this — several other federal courts of appeal have held that there needs to be a further finding beyond what the 6th Circuit said was sufficient to require a new trial. I’d suggest reading the 6th Circuit’s opinion.

Today’s second case, Servotronics, Inc. v. Rolls-Royce PLC, is an interesting factual context: “Servotronics, which manufactured a valve used in a Rolls-Royce Trent 1000 jet engine installed on a Boeing 787 aircraft, was a defendant in an arbitration proceeding that Rolls-Royce brought in London, England, seeking damages for an engine fire that occurred during a test flight of a Boeing 787 in the United States.” (That’s from the helpful scotusblog preview, which is a good place to start.) However, the legal question is one of technical civil procedure. There’s a federal statute that empowers federal courts to authorize subpoenas to support discovery in foreign “tribunal” proceedings; the question is whether that extends to foreign arbitration.

Wednesday, October 6

Just one case today, but it’s a big one — the CIA state-secrets privilege case, United States v. Zubaydah. Zubaydah currently is being held in Guantanamo, as an alleged former associate of bin Laden. Previously, he says he was tortured at a CIA dark site in Poland, and he “intervened” (became a party to) a criminal investigation by Polish authorities into the CIA operations there. Zubaydah wants to subpoena two CIA contractors. The CIA claimed “state secrets” as to all information he was seeking. The 9th Circuit held that some information was properly classified a state secret, but that certain information was subject to disclosure. This is definitely the shorthand version of all this — see this useful article for the full story, as well as the 9th Cir decision.

[The Court is closed on Monday, Oct. 11 for Columbus / Indigenous Peoples Day]

Tuesday, October 12

This is the first abortion case of the term, but on a preliminary procedural issue. Scotusblog has a succinct write-up:

The Kentucky dispute, Cameron v. EMW Women’s Surgical Center, began as a challenge to a law that generally bans the use of the “dilation and evacuation” method to perform abortions, a procedure commonly employed during the second trimester of pregnancy. Kentucky’s health secretary initially defended the law in court, but declined to continue to do so after the U.S. Court of Appeals for the 6th Circuit struck down the ban.

Daniel Cameron, the state’s attorney general, then asked the 6th Circuit for permission to join the case to defend the law, but the 6th Circuit rejected that request. Cameron appealed to the Supreme Court, asking the justices to weigh in on whether he should have been allowed to intervene. And if so, Cameron continued, the justices should also rule on whether the case should be sent back to the lower courts for another look after the Supreme Court’s decision last year in June Medical Services v. Russo, in which the justices struck down a Louisiana law requiring doctors who perform abortions to have the right to admit patients at a nearby hospital – but which, Cameron wrote, “undercuts” the 6th Circuit’s decision to invalidate the Kentucky law.

In a brief order on [March 29], the justices granted Cameron’s request to decide whether he should be allowed to join the case, but they turned down his request to weigh in on whether the case should go back to the 6th Circuit for reconsideration in light of June Medical.

Amy Howe, Justices to decide whether Kentucky attorney general can defend abortion law, SCOTUSblog (Mar. 29, 2021)

The second case today, Hemphill v. New York, is factually complex and involves exceptions to the confrontation clause in a trial that resulted in a murder conviction. In general, the US Constitution’s confrontation clause requires that evidence against a defendant be introduced by a person who can be subjected to cross-examination. In this case, however, the defense counsel mentioned a prior proceeding against another individual in an attempt to suggest that someone else was the shooter. The trial judge ruled that this “opened the door” for the prosecution to introduce details of those proceedings that would otherwise be inadmissible (except through testimony of someone subject to cross-examination). See the NY Court of Appeals decision – and be sure to read the dissent – as well as this summary.

Wednesday, October 13

A big one today — the Boston Marathon bomber death penalty appeal, U.S. v. Tsarnaev. The Court’s cert. questions are clear enough:

Issue(s): (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.

There will be a lot of attention on this case, and a lot of emotion. It’s worth reading the 1st Circuit opinion, which found that there were reversible errors in the death penalty proceedings and ordered a new trial on those counts only, noting “Because we are affirming the convictions (excluding the three § 924(c) convictions) and the many life sentences imposed on those remaining counts (which Dzhokhar has not challenged), Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.”

The last October argument is a complex question about Social Security benefit calculations, with an administrative deference kicker. I.e., it won’t be an easy one to follow for the casual observer…. Briefly, it has to do with workers who have some earnings that are “covered” (taxed and calculated in determining retirement benefits) and “uncovered.” The formula is set up so lower-income workers get a higher “return” on their SSA taxes when benefits are calculated. So someone with uncovered earnings as well might be treated as a low-wage worker even if they are not. The response is the “windfall elimination provision,” which in turn has various exceptions and complications. And this case asks “whether a civil service pension received for federal civilian employment as a ‘military technician (dual status)’ is ‘a payment based wholly on service as a member of a uniformed service’ for the purposes of the Social Security Act’s windfall elimination provision.” See the 6th Cir. opinion for details.

October 2019

August 9, 2019case suggestions

“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.

Oct 29 – Nov 7

October 23, 2018case suggestions

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)

September 3, 2018case suggestions

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.”

Monday, October 30

October 25, 2017case suggestions

Most of the cases this week are focused on technical issues that would not be terribly interesting or easily accessible to most casual observers. The exception if the first case on Monday, Ayestas v. Davis.

In federal death penalty cases, the law requires that when counsel is appointed for indigent defendants, there also be funding for “investigative, expert, or other services [that] are reasonably necessary for the representation.” 18 USC § 3599(f). This case is a habeas case — an appeal to the federal courts of a verdict in state court — and the Fifth Circuit has interpreted “reasonably necessary” to mean that the defendant must show that there is a “substantial need” for the investigation by presenting “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The concern is that this standard requires defense counsel to prove what an investigation would uncover before there can be an investigation. A very useful article about the case is on Scotusblog. The Court has accepted cert. on “whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds ‘reasonably necessary’ resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.”

The second case today, Wilson v. Sellers, is also a federal death penalty case, but the question is more arcane. The Antiterrorism and Effective Death Penalty Act (AEDPA) creates high barriers to federal courts overturning state court sentences of death. A key concept is deference to adjudications “on the merits.” Sometimes, various appeals in the state courts will result in some opinions that provide a full reasoning and others that offer only a summary affirmance of the decision. Courts historically have “looked through” one-sentence decisions to the last full opinion as being the one for consideration as a decision on the merits, but a 2011 Supreme Court case seemed to hold that even summary decisions are “on the merits” in some circumstances. This is an important issue, but very tied up in civil procedure matters that can be hard to follow. If you plan to attend, read this article and, if you have time, a couple of amicus briefs — intriguingly, a group of retired state supreme court justices are on the opposite side from a group of state governments.

[Looking ahead, there is ~~a voting rights case on November 8,~~* a Dodd-Frank whistleblower case on Nov 28, NCAA cases on Dec 4, and the much-anticipated Masterpiece Cakeshop case on Dec 5. I will provide full descriptions of these cases in various posts as the oral argument dates for each get closer.]

* The voting rights case has been removed from the docket due to a medical issue with one of the lawyers who was going to argue the case. We expect it to be argued early in 2018.

April Cases

April 18, 2017case suggestions

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.]

October cases

September 7, 2016case suggestions

First Monday is October 3 and opens the 2016-17 session of the Court, but this year Monday is a “non-argument day.” In the first two weeks, the Court will hear cases concerning racism and the death penalty, an allegation of extreme police and prosecutorial misconduct, and racist jurors who do not reveal their racism until after the jury has been selected and started private deliberations.

Tuesday, October 4

Two relatively technical cases are scheduled for this first argument day. Neither will be particularly accessible to a casual observer, but may be of interest to some.

Bravo-Fernandez v. US involves the “double jeopardy clause” and the doctrine of “collateral estoppel.” The first trial resulted in jury acquittal on some counts and conviction on other counts, but the conviction was later overturned due to erroneous instructions to the jurors. The government wants to reprosecute the overturned convictions, but the defendant says those counts, properly understood and with correct jury instructions, are logically inconsistent with the finding of acquittal on the other counts in the first trial. SCOTUSblog offers a useful overview.

Shaw v. US asks whether a bank fraud statute criminalizing a “scheme to defraud a financial institution” requires proof of “a specific intent not only to deceive, but also to cheat, a bank.” The scheme is at least an interesting read.

Wednesday, October 5

In the morning, the Court starts with an insider trading case, Salman v. United States. It’s an unusual subject to come before the Court, and could be interesting just on the facts of the case. Columbia Law School’s blog offers an interesting discussion.

The second morning argument involves racism and the death penalty, although the official question being considered involves procedure. In Buck v. Davis, the defendant seeks a hearing on whether “his trial counsel was constitutionally ineffective for knowingly presenting an ‘expert’ who testified that petitioner was more likely to be dangerous in the future because he is Black.” Wow…. See a full discussion of the case here.

Unusually, the Court has scheduled an afternoon session today. The case, Manuel v. City of Joliet, asks whether malicious prosecution can be brought under the 4th Amendment and involves a really shocking set of allegations of misconduct. Morning arguments close at noon and the courtroom will be cleared at that time, with afternoon sessions beginning at 1:00. Since afternoon sessions are so unusual, it’s hard to know what the crowds will be like, but it may well be easier to get in for this argument.

[The Court is closed Oct. 10 for Columbus Day]

Tuesday, October 11

The first case, Samsung Electronics v. Apple, involves damages in a patent infringement case and will be rather technical and involve a specialized area of law. But the second case, Pena-Rodriguez v. Colorado, is an unusual examination of what happened during jury deliberations. Ordinarily, juror comments are kept secret absent extreme misconduct. In this case, it is alleged that one of the jurors made racist comments that would give reason to be believe the individual should have been excluded from juror service (but, obviously, this racism did not come to light during juror selection). The Court has accepted cert. on the question of whether the usual veil of secrecy around what happens during deliberations “constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.” A useful overview is offered here.

There is another unusual afternoon argument today, but involving technical appeal procedure. And there are no arguments scheduled for Wednesday this week.

Feb 29 – March 2 cases

February 24, 2016case suggestions

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.

Speculation and Updates: Final decision days

June 25, 2015case suggestions, commentary

Factual update and speculation… To speculate first, Scalia offered an unhappy announcement of his dissent in the Affordable Care Act decision, which I think may provide a spoiler on the outcome of the Congressional redistricting case. The ACA issue was statutory interpretation, and the majority read insurance exchanges “established by the state” to include ones established by the federal government in stead of the state. To bash this, Scalia referenced the Constitution’s elections clause, and suggested that everyone would agree that Congress using its election-regulating power would not represent “the state legislature” acting (this is from memory, but that’s the gist). So — if this means that the majority of the Court has agreed that a plain and un-nuanced reading of the elections clause is what commands, then I think the Independent Redistricting Commission is about to lose… (See the bullets below if you need a refresher on what that case is about.) It’s possible that he was forecasting another dissent in that case, but that’s not how I heard it.

Further speculation is that I expect we’ll know about that case tomorrow, with marriage on Monday. I say this simply because it seemed like redistricting is almost ready, and because both Kennedy and Roberts had major opinions today so are a little less likely to have opinions tomorrow (and they seem the most likely authors of a marriage decision). But that’s a bit of a stretch on my part, and I plan to be in the courtroom tomorrow in any event.

If you plan to attend, know that the public area was full today but the bar section was not. There was also a fairly sizable set of demonstrators out front. The Obamacare supporters were chanting (they cleverly had stickers to modify their large signs, depending on the outcome), and I saw people who looked like they had been ready for a decision in the marriage cases. So even standing outside the courtroom can be a worthwhile experience on big decision days.

Now for objective information: after today’s decisions, there are now 5 cases that were heard this term but are still undecided, with two announcement days left on the Court’s calendar–tomorrow and Monday. So an updated recap of what remains (ordered by date of oral argument):

Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2). Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25). Important issues about what the EPA must consider when it regulates power plants. Fuller analysis is here.
Criminal law, Johnson v. US (argued April 20): (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
Same-sex marriage, Obergefell v. Hodges (argued April 28). One of the most high-profile cases of the term.
Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.