Oral Arguments Review: Week of December 4, 2017

On Tuesday, the Supreme Court heard oral argument in one of the biggest cases of the Term: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In this case, a baker who makes custom wedding cakes refused to provide a cake for a same-sex couple celebrating their marriage. The Colorado Civil Rights Commission found that he had violated the state’s anti-discrimination law. The baker appealed to the Supreme Court, alleging that he was forced to engage in “compelled speech” and that his free exercise of his religion was improperly burdened, both in violation of the First Amendment.

The argument, which lasted almost 90 minutes, involved extensive discussion about the scope of the right that the baker was claiming. To the extent that he claimed to be engaging in expressive conduct, Justice Kagan pressed his attorney about whether make-up artists, hair stylists, chefs, and florists would also be covered by his theory. Surprisingly to many, including Justice Breyer, when Justice Alito asked whether architectural design was expression protected by the First Amendment, the baker’s lawyer said no. The Justices and attorneys also discussed whether race discrimination could be justified on religious or free expression grounds, a position that both the baker’s attorney and the United States government, which appeared to support the baker, attempted to distinguish.

There has been an enormous amount of commentary about this case and the argument. David Savage of the Los Angeles Times explains why a 1990 majority opinion written by Justice Scalia, Employment Division, Department of Human Resources v. Smith, makes the free exercise of religion claim particularly challenging for the baker. (In Smith the Court held that there are generally no free-exercise exemptions from compliance with generally applicable laws.) A video of a “spirited” debate between the Cato Institute’s Ilya Shapiro and the NAACP Legal Defense and Educational Fund’s John Paul Schnapper-Casteras can be found here. Shapiro and Schnapper-Casteras filed amicus briefs on opposite sides of the case on behalf of their respective organizations. Commentary from the National Catholic Register is here and from Craig Konnoth, a University of Colorado law professor, here.

Another high-profile case was argued on Monday, December 4. Christie v. National Collegiate Athletic Association, as ISCOTUSnow explained last week, the key issue involves Congress’s ability to prevent states from deregulating sports gambling. Ilya Somin argued in a piece entitled “Place Your Bets on Federalism,” at the Washington Post’s Volokh Conspiracy that the argument went well for New Jersey, which wanted to legalize some gambling. And the sports media also continues to cover the case. CNN reports here, noting that Governor Chris Christie himself sat in the front row during the argument.

Audio and transcripts arguments in Christie, Masterpiece Cakeshop, and the other, less high-profile cases from last week —Rubin v. Islamic Republic of Iran, Murphy v. Smith,  and Marinello v. United States — can be found oyez.org. Descriptions of these cases can be found here.

Will The Supreme Court Review SEC’s In-House Judges?

By Harold J. Krent, Dean and Professor of Law, IIT Chicago-Kent College of Law in Chicago.

This post is an abridged version of an article first published at Law360.

Challenges to appointment of U.S. Securities and Exchange Commission administrative law judges (ALJs) have spread across the country. Private parties that have lost on the merits before the SEC have then challenged the legitimacy of those proceedings by asserting that SEC ALJs, as inferior officers, should have been appointed by SEC commissioners instead of by the chief ALJ. Article II of the Constitution provides that inferior officers of the United States can only be appointed by the president, courts of law, or heads of departments, and the SEC conceded that, if the ALJs are deemed inferior officers, then the appointments were invalid.

Article II vests the appointment power in presidents to permit them influence over the vast amount of authority delegated by Congress to agencies in the executive branch. The president has the power to appoint principal officers such as SEC commissioners, and all inferior officers within the agency must be appointed either by the president or the SEC commissioners themselves. In contrast, presidents need not appoint employees because they do not exercise significant authority under the laws of the United States. The appointments clause thereby promotes political accountability.

I, along with others, confidently predicted — at least until last week — that the U.S. Supreme Court would grant certiorari to resolve the split in the federal circuit courts over whether federal ALJs should be considered inferior officers or employees under Article II of the Constitution. Resolving the Article II issue has ramifications for many federal agencies whose appointment of ALJs have not conformed to the appointments clause. The Social Security Administration, for example, employs over 1,400 ALJs. As a practical matter, the ongoing appointments challenges have cast a pall over a wide swathe of current administrative proceedings before federal ALJs.

Review by the Supreme Court seemed likely for another reason. A second and more important question raised by the cases is whether ALJs, if deemed inferior officers, can be protected from “at will” removal in independent agencies such as the SEC and SSA. In an analogous context, the Supreme Court in Free Enterprise Fund held that inferior officers in independent agencies cannot be protected by a “for cause” removal standard because two layers of “for cause” insulation from the president’s removal authority creates an attenuated chain of accountability to the president.  ALJs, however, currently can only be removed for “cause.”

Nevertheless, ALJs arguably need protection from at-will removal in order to assure private entities contesting government action that decision makers in their cases enjoy a measure of independence. Our administrative system of adjudication, in other words, largely turns on a promise of independence at least at the level of the front-line adjudicator, even if not from the agency itself. The agency inherently is political, but not the front-line adjudicator whose factual findings remain in the record no matter what the agency decides and can influence subsequent judicial review. The court may well be tempted to craft a rule that limits Free Exercise Fund, possibly on the ground that the president need not have as close supervision over officers exercising routine adjudicative as opposed to administrative functions. The path toward certiorari seemed clear.

This past week, the U.S. Department of Justice changed course and disavowed the SEC’s earlier position that its ALJs should be considered employees. But, in a surprise twist, the DOJ asked the court nonetheless to grant certiorari.

What will the court do? On one hand, although the case appears moot, perhaps the court can entertain jurisdiction because the parties might still disagree as to the remedy — can the properly appointed ALJ ratify what he had determined earlier without holding yet another hearing. The SEC has not yet stated whether the ALJs have to rehear the cases previously decided, so it seems a stretch for the court to take the case on that basis. And, even if the court accepts the DOJ’s invitation to grant certiorari, the parties are not adverse with respect to the two key issues — the private parties and the SEC now agree 1) that ALJs are inferior officers, and 2) neither side has weighed in on the removal question. At the end of the day, DOJ’s call for review now may be enticing, but traditional principles of restraint likely will result in a denial.

Conference Report: December 1 and 8 Conferences

Over the last two weeks, the Supreme Court has granted cert in eight new cases and has issued a number of rulings of note. First, on Friday, December 8, in a 5-4 order, the Court granted a stay of a discovery order in a case challenging the Trump Administration’s decision to end the DACA program — the program that grants deferred action for undocumented immigrants who arrived in the United States as children and who meet a number of other criteria. In the case, known in the Supreme Court as In re United States, the government sought a stay of a district court order requiring it to produce certain documents. The Supreme Court granted the the stay, pending resolution of a petition that the government filed, and it ordered any response to that petition to be filed by December 13. Justice Breyer wrote a 9-page dissent, in which he was joined by Justices Ginsburg, Sotomayor, and Kagan.

On December 4, the Court also issued stays in both of the pending travel ban appeals, allowing the current travel ban to go into effect. The Court also told the courts of appeals to render their “decision[s] with appropriate dispatch.” Justices Ginsburg and Sotomayor both noted dissents from these orders, although they did not write opinions. The Ninth Circuit heard oral argument in Hawaii v. Trump on December 6, and the Fourth Circuit heard oral argument on December 8.

On Friday, December 8, the Court announced that it would hear seven new cases. Most notable is a case called Benisek v. Lamone. Benisek involves a challenge to a partisan gerrymander in Maryland. The case that is similar, although not identical to, Gill v. Whitford, in which the Court heard argument in October (more about the case here). Perhaps significantly, one way the cases differ is in the party that controlled the redistricting: in Gill, Republicans controlled, while in Benisek, Democrats were in charge. As election law expert Rick Hasen explains, however, this decision to hear Benisek was a surprise, as most expected the Court simply to “hold” the case and then remand for consistency with whatever it decided in Gill. Adam Liptak of The New York Times has more here.

The Court also granted cert in Koons v. United States and Hughes v. United States. The cases raise similar issues related to sentencing reductions where the Sentencing Commission changes the Guidelines, but Hughes also asks a much more complex question about how to interpret Supreme Court decisions where there is no majority for any rationale — asking for a clarification of the 1977 decision in Marks v. United States. Scholarly commentary on this question from Ryan Williams of Boston College Law School is available here. And in China Agritech, Inc. v. Resh, the Court agreed to hear a case about whether the statute of limitations is tolled for potential class members when a putative class action is filed but no class is certified in situations where the those putative class members later wish to bring their own class action lawsuit. The Court has previously held, in American Pipe & Construction Co. v. Utah,  that such tolling applies where the class members want to file their own individual actions.

The other cases granted on December 8 included Upper Skagit Indian Tribe v, Lundgren, involving tribal sovereign immunity in a property dispute, United States v. Sanchez-Gomez, about appellate jurisdiction, Sveen v. Melin, about the scope of the Contract Clause.

And finally, on December 1, the Court announced that it would hear Salt River Project Agricultural Improvement and Power Dist. v. SolarCity Corp. Salt River is about whether interlocutory appeals are available from denials of immunity under the “state action” doctrine in antitrust law.

The End of Miller’s Time?

By Michael Gentithes, Visiting Assistant Professor, Chicago-Kent College of Law.

The smartphones we carry in our pockets radically simplify our lives, reducing hour-long tasks to seconds and eliminating the need to separately carry a camera, map, book, and audio player. But should they also enable the government to access months of records of everywhere someone went while carrying a phone?

The Supreme Court recently considered that question when it heard oral arguments in the much-anticipated case of Carpenter v. United States. Specifically at issue was the government’s warrantless collection, for 127 days, of a robbery suspect’s “cell site location information”—data showing which cell phone tower the suspect’s phone accessed at particular times, and hence roughly where the suspect was. A bigger principle was also at issue: the claim that when we reveal information about ourselves to third party service providers, we relinquish any expectation that the information is private and will not be accessible to government investigators. That principle, known as the “third-party doctrine,” previously led the Court to permit the warrantless collection of the numbers we dial in our phones (Smith v. Maryland (1979)) and the financial information we disclose to a bank (United States v. Miller (1976)). The question Carpenter asks is whether that doctrine extends to the networked world, and to the government’s collection of data we routinely reveal to technological third parties about our location, shopping preferences, reading habits, and more.

That question matters. Though some might be untroubled by massive data dragnets because they feel they have nothing to hide, concerns about the information we reveal to third parties today extends to more than just embarrassing facts. The complete details of our daily thoughts and actions might be accessible to any government agent willing to look. By creating additional copies of that information, the government generates added opportunities for hackers—or internal whistleblowers—to access and publicize it. That possibility should startle the guilty and innocent alike.

During the Carpenter oral arguments, many of the Justices appeared sympathetic to such privacy concerns. But they failed to coalesce around a guiding principle. Though they acknowledged the limitations of third-party doctrine—which does not extend to medical information provided to one’s doctor, for instance, or the words a suspect says on the phone after dialing a number—they struggled to explain why that data receives Fourth Amendment protection while dialed phone numbers and financial records do not. And without such an articulable guiding principle, it seems arbitrary to place location data derived from cell phone towers in either the protected or unprotected category.

Squaring that circle is a difficult challenge the Justices should not sidestep. Fourth Amendment jurisprudence has been ridiculed as little more than nine people’s rudderless assumptions about the privacy citizens actually and appropriately expect. The Justices should state a principled basis upon which to classify location information—and the slew of other data points modern citizens reveal to third parties—as protected or unprotected. Doing so will require the Justices to acknowledge that informational privacy is a messy, non-binary continuum. Most data points fall somewhere between the wholly private contents of a conversation and the entirely unprotected numbers dialed to arrange it. Data points about our locations in public are one example. Though largely unprotected, locational data conveys some minimal amount of meaning, such that even if a citizen does not harbor a great enough expectation of privacy in each individual data point to render collection of that datum a search, she might have a great enough expectation of privacy in months of aggregated locational data to trigger the Fourth Amendment.

Enunciating such a rule may require reconsideration of previous holdings, especially those claiming that sensitive financial information disclosed to a bank is wholly unprotected. It might also require the Justices to acknowledge that Fourth Amendment jurisprudence is necessarily tentative, and that just as those holdings need revision, their holding in Carpenter may be reconsidered when new technology, and new cases, emerge. But such an acknowledgement simply makes explicit what was already inherent in the common-law-style decisions applying the Fourth Amendment to the modern world. And a genuine effort to craft such a tentative rule will both enhance the public’s security and its regard for the Court.

Do the Justices Look More Favorably on Gun Regulation than Many Fear?

By Cody Jacobs, Visiting Assistant Professor, Chicago-Kent College of Law.

Last Monday, the Supreme Court denied certiorari in Kolbe v. Hogan, a Second Amendment challenge to Maryland’s ban on assault weapons and large capacity ammunition magazines. As a result, the Fourth Circuit’s decision upholding the ban was left in place. The Court’s denial is notable because it continues a pattern: after holding that the Second Amendment protects an individual right to keep and bear arms in a pair of cases in 2008 (District of Columbia v. Heller) and 2010 (McDonald v. City of Chicago), the Court has not granted cert in any major Second Amendment case since then despite having numerous opportunities to do so. Unraveling the mystery of why that is may have major implications for the future of Second Amendment litigation.

Kolbe seemed like a particularly plausible vehicle for a cert grant. Although there is no circuit split on the issue—the four federal courts of appeal that have heard Second Amendment challenges to assault weapons bans have upheld them—the Fourth Circuit’s decision upholding Maryland’s law in Kolbe was a little different than the previous decisions. The Fourth Circuit didn’t just uphold Maryland’s law, it held that assault weapons and large capacity ammunition magazines are not protected by the Second Amendment at all. In contrast, the other courts that upheld these bans concluded that such weapons were protected by the Second Amendment, but that the bans could nevertheless survive because of the strong public safety justifications behind them. Thus, Kolbe represented a relatively minimalist reading of Second Amendment rights that would presumably have been more likely to attract the Supreme Court’s attention.

On the other hand, the denial in Kolbe is not that surprising in light of the Court’s history of denying cert in these cases. According to a report from the Giffords Law Center to Prevent Gun Violence, the Court has denied cert in over 70 Second Amendment cases since 2008. This number includes several denials in cases involving perhaps the most litigated Second Amendment issue, the right to carry guns outside the home. Several states have requirements that applicants for concealed carry permits demonstrate a “good reason” that they need such a permit before one may be granted. Gun rights advocates have challenged these laws almost everywhere they exist and, with the exception of a successful challenge in the District of Columbia (discussed below), all of these challenges have been rejected by the courts of appeals and the Supreme Court has refused to grant cert.

This trend—which has resulted in most Second Amendment challenges to gun laws failing—has not gone unnoticed by the Court’s more conservative Justices. For the first five years after McDonald, these denials came without noted dissent. That changed when the Court denied cert in a 2015 case challenging a San Francisco ordinance requiring guns to be locked up when not in use. Justice Thomas, joined by Justice Scalia, dissented from the Court’s refusal to grant cert. That same year, Justice Thomas, again joined by Justice Scalia, dissented from the Court’s refusal to grant cert in a case challenging a city’s assault weapons ban. And just this summer, Justice Thomas, this time joined by Justice Gorsuch, dissented from the Court’s denial of cert in a case upholding California’s “good reason” requirement for concealed carry permits. In that dissent, Justice Thomas complained that the Court’s “decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right” and decried the “inexcusable” discrepancy between cases involving other rights, which the Court hears routinely, and cases involving the Second Amendment, which have not been heard in the Court since McDonald.

“Inexcusable” or not, this trend certainly is not what either side expected to happen in the immediate aftermath of Heller and McDonald seven years ago. So, what does it mean? (Of course, any attempt to read tea leaves from cert denials necessarily comes with all the usual caveats—the Court has repeatedly reminded us that a cert decision is not a decision on the merits.)

Let’s start with what we know. We know that at least two Justices voted to grant cert in some of these cases. It also seems relatively safe to assume that none of the four “liberal” Justices voted to grant cert, likely because they were happy with the results in the lower courts. The question, then, is why didn’t Justice Alito, Justice Kennedy, or Chief Justice Roberts vote to grant cert in any of these cases? All three of them voted with the majority in Heller and McDonald, and Justice Alito actually wrote the controlling opinion in the latter. It is possible that one of them could have voted to grant cert in these cases and for whatever reason choose not to dissent, but, none of them appear to agree with Justice Thomas that the repeated denials are particularly problematic.

The politics around the gun debate has changed significantly since 2010. Even though there has been no policy change at the national level, the political will for greater restrictions on guns surged in response to the Sandy Hook shooting in 2012 and has led to a wave of new gun laws, particularly in blue states. In fact, the law at issue in Kolbe itself was passed in direct response to Sandy Hook. It isn’t a stretch to imagine that the rapid killing of 20 six and seven-year-old children that had such a powerful impact outside the Court might have had an impact inside it as well.

If some of the Justices that formed the majority that recognized an individual Second Amendment right are now having second thoughts, or at least feeling amenable to a narrow reading of that right, that would have major implications for litigation strategy in Second Amendment cases. The few times that gun laws have been struck down by federal courts on Second Amendment grounds, state and local governments have declined to appeal those rulings, likely fearing that they would lose in the Supreme Court and roll back similar gun laws nationally. This happened just recently when the District of Columbia’s “good reason” concealed carry requirement was struck down by the DC Circuit. DC officials decided not to seek cert even though the decision created a circuit split because they were concerned that an unfavorable ruling from the Supreme Court would put similar laws around the country in jeopardy.

However, this caution may not be warranted and may even be counterproductive. The Court’s refusal to grant cert in case after case upholding a wide range of gun laws may show that a majority of the Court at least has serious doubts that these laws violate the Second Amendment. But that majority may not last with President Trump explicitly promising to fill any vacancies that arise during his term with pro-gun justices. The next time a gun law is struck down on Second Amendment grounds, perhaps the state or local government defending that law should seek cert and force those Justices who may be wavering behind the scenes to lay their cards on the table.

Prior to coming to Chicago-Kent, Professor Jacobs was a Staff Attorney at the Law Center to Prevent Gun Violence. His scholarship focuses on the Second Amendment and gun policy.

Arguments: Week of December 4, 2017

The Court will hear arguments in five cases this coming week, including the blockbuster case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be argued on Tuesday, December 6. (People were already lining up to see this oral argument on Friday.) Masterpiece Cakeshop involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the bakery owner’s sincerely-held religious objection to same-sex marriage. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA). The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the both the free speech and free exercise provisions of the First Amendment. Earlier this year, SCOTUSblog hosted a symposium on Masterpiece Cakeshop, featuring commentary from advocates and legal scholars arguing for both sides of the case. More recently, commentators from both the left and the right continue to weigh in.

On Monday, December 4, the Court will hear oral arguments in an important federalism case, Christie v. National Collegiate Athletic Association. Christie analyzes whether the Professional and Amateur Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature partially repealed certain prohibitions on sports gambling, in 2014. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the repeal violates PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA  (in the language of key federalism precedents New York v. United States and Printz v. United States) unconstitutionally “commandeers” the state regulatory scheme for overseeing sports gambling. The Washington Post and Sports Illustrated both explore the implications of the case.

Also on Monday, the Court will hear arguments in Rubin v. Islamic Republic of Iran. Rubin concerns foreign sovereign immunity where a foreign country is a state sponsor of terrorism. Plaintiffs, eight American victims injured in a terror attack in Jerusalem in 1997, sued Iran under section 1610(g) of the Foreign Sovereign Immunities Act (FSIA) and received a $71.5 million dollar default judgment against the state of Iran. FSIA creates several exceptions to the general rule stipulating that foreign states cannot be sued in U.S. courts, one of which is the “terrorism exception,” allowing private citizens to sue foreign states determined to be sponsors of terrorism. The plaintiffs argue that, to collect on their judgment, the FSIA allows them to attach and execute four collections of ancient Persian artifacts in possession of the University of Chicago and Chicago’s Field Museum of Natural History. The Seventh Circuit, however, agreed with the arguments of the Islamic Republic of Iran, joined by the Field Museum and the University of Chicago, and concluded that the FSIA did not authorize the plaintiffs’ action.

On Wednesday, December 6, the Court will hear arguments for Murphy v. Smith and Marinello v. United States. Murphy considers a provision of the Prison Litigation Reform Act which requires that, when a monetary judgment is awarded to a plaintiff in a prisoner’s civil rights suit, a portion of that judgment “not to exceed 25 percentshall be applied to pay for attorney’s fees awarded against the defendant. The district court interpreted this to mean that it had discretion to decide what percentage of the damages should be reserved, and ordered that 10 percent of the damages be put towards the fees. The Seventh Circuit reversed, following its precedent that the statute did not grant the district court discretion to reduce the maximum percentage of damages to be reserved, and instead holding that 25 percent of the damages awarded to the appellant, a former inmate who prevailed in a civil rights and state tort suit against correctional officers, should be directed to pay for the fees. (Disclosure: ISCOTUS Co-Director Carolyn Shapiro participated in a moot to help prepare respondent’s counsel for argument.)

Marinello is a case from the Second Circuit involving section 7212(a) of the Internal Revenue Code, criminally penalizing a defendant who “in any other way corruptly. . . obstructs or impedes, or endeavors to obstruct or impede the due administration of” the tax code. The defendant, Carlo J. Marinello, was found guilty of nine counts of tax-related offenses, including a violation of §7212(a). He asserts that the government was required to establish that there was a pending IRS action against him, and that he had knowledge of that action as part of its burden of proof in securing a conviction. The district court denied that Marinello’s motion for acquittal on this point, which the Second Circuit affirmed.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director, Chicago-Kent Professor Carolyn Shapiro.

Oral Arguments Review: Week of November 27

On Wednesday, the Court heard oral arguments in one of the most controversial cases of this term: Carpenter v. U.S. In Carpenter, the justices heard arguments on a Fourth Amendment issue asking whether people have a reasonable expectation of privacy when they relinquish specific information to a third party. In this case, the information is metadata about someone’s location generated when he uses his cellphone. In an unusual turn of events, oral argument on Carpenter lasted 20 minutes longer than the usual hour per argument session. By the end of the rancorous session, there was little consensuses on where a majority of the justices stood on how they would extend the government’s ability to acquire such records.

Timothy Ivory Carpenter was convicted for his participation in a number of robberies over a period of several months in the Detroit area. The government used data collected through his cell phone usage in proximity to cell towers—obtaining it without a warrant through Carpenter’s cellular provider—as evidence to convict him. Carpenter argues that the means by which the government acquired those records was a violation of his Fourth Amendment right against unreasonable searches and seizures.

Several justices, including Justice Alito, inquired about how to approach the issue stating, “[t]his new technology is raising very serious privacy concerns.” Justice Sotomayor equated the government using phone records to track an American’s location to “Big Brother,” and commented that many people, including youth, are attached to their phones, like an extra appendage. Justice Roberts made a point regarding the nature of cellphone usage in the modern age and how difficult it is to conceive that most voluntarily elect to relinquish data on their location.

Two of the Court’s Fourth Amendment precedents figured prominently in the argument. In Smith v. Maryland, the Court decided that people do not have a reasonable expectation of privacy when dialing a number using a landline, although they do have such an expectation in the contents of the call. And in U.S. v. Miller, the Court held that there is no reasonable expectation of privacy when the government subpoenas a bank for an individual’s financial records because those records contain information that the individual voluntarily disclosed to a third party and that the third party retained for its own business reasons. But the Court also has recently decided two cases involving new technology and the Fourth Amendment: Riley v. California, which held that the police cannot search the contents of an arrestee’s phone without a warrant, despite the analogy to a wallet, which they can search; and United State v. Jones, which held that installing a GPS device on a vehicle was a search within the meaning of the Fourth Amendment.

Although many Justices appeared concerned about the privacy interests at stake in Carpenter, they did not appear to have settled on a single approach to this question of new technology and the Fourth Amendment. As The Daily Caller’s Kevin Daley stated, “[t]hough a majority of the Court appeared willing to extend protections to a user’s location data, the justices fractured as to how meaningful those protections might be, as well as the legal rationale on which they should rely.” Dahlia Lithwick of Slate also reports on the argument, including on Justice Gorsuch’s property-based theory about why the Fourth Amendment should apply to the location data.

The Court also heard oral arguments in Cyan Inc. v. Beaver City Employees Retirement Fund, which addresses whether state courts lack subject matter jurisdiction over covered class actions regarding the 1933 Securities Act. The petitioner argues that the law bars concurrent jurisdiction over all “covered class actions,” and the respondent argues that it bars “mixed” state- and-federal law actions. The Justices exhibited some frustration at the way Congress wrote the law. Justices Alito and Gorsuch, for example, called the statutory language “gibberish,” while Justice Ginsburg called it “obtuse.” The argument also featured two particularly experienced Supreme Court advocates. Neal Katyal, who was Acting Solicitor General under President Obama, represented the petitioners in his 35th Supreme Court argument, breaking the record set by Thurgood Marshall for the most oral arguments presented by a lawyer of color. And Tom Goldstein, publisher of Scotusblog.com, argued for respondents.

On Tuesday, the Court also heard oral arguments in Digital Realty Trust v. Somers, a financial whistleblowing case within the purview of an anti-retaliation provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Paul Somers, an ex-employee of Digital Realty Trust (DRT), a real estate investment trust, told upper-management that his direct supervisor had eliminated internal controls of certain operations in violation of the Sarbanes-Oxley Act of 2002. That Act has a statute of limitations of just 180 days, so after several months Somers filed a suit against his former employer under the Dodd-Frank Act for disclosing the information. DRT argues that the law only protects whistleblowers who report wrongdoing to the Securities and Exchange Commission (SEC); not those who report wrongdoing internally.

Finally, the Court heard oral arguments in two intellectual property cases. In Oil States Energy Services v. Greene’s Energy Group, the petitioner, Oil States, argues that Congress violated Article III of the Constitution and the Seventh Amendment when it authorized the Patent and Trademark Office to invalidate their patent, on behalf of Greene’s Energy, without a jury trial. In the other patent case, SAS Institute Inc. v. Matal, the Court heard arguments on whether the Patent Trial and Appellate Board is required to issue final written decisions on patentability to all petitions involved, or if the Board may grant a written decision to only some petitions.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by ISCOTUS Editorial Coordinator, Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Supreme Court Adds E-Filing

On Monday, November 13, the Supreme Court’s new electronic filing system became operational, fulfilling a commitment Chief Justice Roberts had made back in 2014.  In his 2014 Year-End Report of the Federal Judiciary, Chief Justice Roberts focused on information technology.  In the report, the Chief Justice described how the Court has used technology, from the pneumatic tubes of the mid-20th century that allowed journalists to transmit opinions from the courtroom to their colleagues in the press room downstairs, to the more recent advent of computer-assisted legal research.  He then moved on to electronic filing, describing the federal courts’ CM/ECF(Case Management and Electronic Case Filing) and PACER (Public Access to Court Electronic Records) systems, which the federal courts began using in 2001, as vital to making the court system more accessible and affordable to litigants. Chief Justice Roberts added that the Supreme Court was developing its own electronic filing system, while cautioning that the Court would move slowly when adopting information technologies.

The Supreme Court’s new system largely tracks the Chief Justice’s 2014 description, and it has received good reviews.  For now, all parties will continue to submit all filings on paper; however, the Court will require all parties who are represented by counsel to file their submissions electronically as well. The documents will be available free of charge on the Court’s website, which distinguishes this system from the PACER system. PACER, which charges $0.10 per page up to $3 per document, has come under criticism for making public documents harder to access and for making academic research on the courts more costly, as The Washington Post explains. At least two lawsuits have been filed challenging those fees.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

This Day in Supreme Court History—November 30, 1804

On this day in 1804, the United States Senate created a committee tasked with preparing rules to govern the first impeachment trial of a Supreme Court justice. The previous March, the House of Representatives had voted to impeach Justice Samuel Chase. Chase had been appointed to the Court by George Washington in 1796 and had established a reputation for his staunch, outspoken commitment to the Federalist Party. This gained him the enmity of the Jeffersonian Republicans, who in 1800 had won the presidency and gained control of Congress.

Samuel Chase

Chase had been particularly vocal in criticizing the Republican repeal of the Judiciary Act of 1801. The repeal abolished a number of newly created federal courts, along with the judgeships Federalists had secured prior to losing power.  Chase told a Baltimore grand jury in May 1803 that the repeal would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”

At the urging of President Jefferson, Representative John Randolph of Virginia initiated impeachment proceedings against Chase. On March 12, 1804, the House approved eight articles of impeachment against the justice. Among them was the charge that Chase was “continually promoting his political agenda on the bench,” and thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.”

The House also charged him with “refusing to dismiss biased jurors,” and “excluding or limiting defense witnesses in two politically sensitive cases.” These charges stemmed from two trials over which Chase presided. One was the 1800 treason trial of John Fries, in which Chase had delivered a written opinion that defined treason as a matter of law, without hearing the lawyers’ arguments. Fries’ attorneys withdrew from the case because, claiming that Chase’s conduct had tainted the jury pool, rendering a fair trial impossible. Fries was easily convicted. The other was the 1800 trial of James Callender, who had been indicted under the Sedition Act for publishing a book in which he accused John Adams of being a British sympathizer and a monarchist. The Sedition Act, which a Federalist Congress passed in 1798, made it a crime to bring the president or Congress “into contempt or disrepute.” The House impeachment charge alleged that Chase had acted in a way to ensure Callender’s indictment and that Chase also failed to exclude a biased juror.

The Senate ultimately acquitted Chase of all eight charges on March 1, 1805. None of the articles of impeachment came close to getting the two-thirds majority needed for conviction. His victory is widely believed to be a critical foundation for the principle that the federal judiciary should be insulated—to a large extent—from the partisan machinations of the legislative and executive branches.

Chase went on to serve the rest of his life on the Court. He died in 1811.


This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.

Conference Report – November 21, 2017 Conference

On Monday, the Court issued orders from its pre-Thanksgiving Conference. It did not grant any new cases for full argument. In the most notable denial of certiorari, the Court declined to hear Kolbe v. Hogan, a challenge to a Maryland law that bans semiautomatic rifles and magazines. The law was passed in the wake of the Sandy Hook shooting and was upheld in a 10-4 en banc decision of the Fourth Circuit. As The Hill and The Baltimore Sun explained, the Fourth Circuit held that such military-grade weapons were not covered by the Supreme Court’s decision in District of Columbia v. Heller. Heller held that the Second Amendment confers an individual right to have a handgun in one’s home for purposes of self-defense. The only Second Amendment case the Court has heard since Heller is McDonald v. City of Chicago, which simply applied the Second Amendment, and the Heller holding, to the states. Commentators on both the left and the right have discussed this apparent lack of desire by most of the Justices to revisit the Second Amendment, although in June, Justice Thomas, joined by Justice Gorsuch, dissented from a denial of certiorari in on that basis.

On Monday, however, Justice Thomas dissented from the denial of certiorari in a case involving a different area of law, Upstate Citizens for Equality, Inc. v. United States. The Secretary of the Interior used the Indian Reorganization Act (“IRA”) to take into trust more than 13,000 acres of land, which had been under the state’s sovereign control for more than two centuries, for the Oneida Nation of New York. The Second Circuit upheld this action over the plaintiffs’ argument that this use of the IRA was an unconstitutional exercise of Congress’ power under the Indian Commerce Clause.

Justice Thomas said he would have granted certiorari to reconsider the Court’s Commerce Clause precedents, which, he said, courts are applying in a way that gives Congress plenary power to pass laws related to Indian affairs. Justice Thomas asserted that the Clause extends only to regulating trade with Indian tribes whom the state has not incorporated. The IRA, Thomas wrote, allows the Secretary merely to “take into trust land that an Indian tribe already owns.” Thomas expressed concern that the Second Circuit’s application of Supreme Court precedent showed how far the Court’s precedents interpreting the Clause have strayed from the original understanding. Under the precedents, Thomas said, “Congress could reduce a state to near nonexistence by taking all land within its borders and declaring it sovereign Indian territory…When our precedents permit such an absurd result, something has gone seriously awry. It is time to fix our error.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019 and by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.