Opinions: Sports Betting, Admissions of Guilt, and Rental Cars

The Term’s final stretch is here, and the Court is releasing opinions every Monday. (At some point in June, it will probably begin releasing opinions on Thursdays as well, and perhaps on other days.) On Monday, May 14th, the Court released five opinions dealing with issues as disparate as lawyers who concede their clients’ guilt, who has a right to privacy in a rental car, and the legality of sports betting. (ISCOTUS co-director Carolyn Shapiro discussed several of them on WGN’s Legal Face-Off.)

McCoy v. Louisiana

The Court ordered a new trial in McCoy v. Louisiana, a capital murder case in which the defendant’s counsel, in the hopes of avoiding a death sentence, admitted that the defendant had killed the victims, despite the defendant’s express objections. Robert McCoy was charged with of first degree murder in the deaths of the mother, stepfather, and son of his estranged wife. McCoy’s lawyer, Larry English, urged McCoy to take a guilty plea; McCoy refused, continuing to maintain his innocence. Then, two weeks before the trial, English told McCoy that he intended to admit that Mr. McCoy had killed the victims, a move that McCoy emphatically opposed. At trial, English in fact “conceded McCoy’s role in the killings” both in his opening and closing arguments, arguing for second degree murder. McCoy expressly objected to this strategy, and exercised his right to testify during the trial that he was innocent and present his alibi at the time of the murders. Ultimately, the jury found McCoy guilty of first degree murder and sentenced him to death.

In a 6-3 opinion written by Justice Ginsburg, the Court held that, unlike strategic decisions that serve to achieve a client’s objectives, the decision to assert innocence is one for the client to make – it is his choice about what his actual objectives are. The Court further clarified that because McCoy did not make an admission that he intended to commit perjury in asserting his innocence, nor did English doubt that such an assertion would be truthful, English’s actions in going against his client’s wish to profess innocence violated McCoy’s right to autonomy under the Sixth Amendment. The Court emphasized  McCoy’s fundamental right to make his own decisions about how to proceed with his defense, and that a jury is almost certain to be swayed by a lawyer who admits his own client’s guilt. The dissent, written by Justice Alito and joined by Justices Thomas and Gorsuch, argued that English did not admit that McCoy was guilty of first-degree murder, but that he was guilty of committing one element of the offenses charged with (the actus reus: killing the victims) but not the other (the mens rea: intent). Slate and the Cato Institute praise the majority’s ruling, and the Washington Post provides more background.

Byrd v. United States

A second criminal case, Byrd v. United States asked whether a driver has a reasonable expectation of privacy in a rental car when he has the permission of the renter to drive the car but the rental agreement does not have that person listed as an authorized driver. If so, the driver can assert a Fourth Amendment claim related to the search.

Terrence Byrd was stopped at a checkpoint when he was driving a car that his girlfriend had rented. After searching the car, alleging that they had obtained Byrd’s consent and thus had probable cause (which he disputes), state troopers found heroin and body armour in the car.

The Court, in a unanimous opinion by Justice Kennedy, stated “[f]ew protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.” The Court criticized the Government’s proposed rule that drivers of rental cars whose names are not on the rental agreement always lack an expectation of privacy, because the rental company has not explicitly authorized them as drivers, as too restrictive. But the Court also disagreed with Byrd’s contention that the sole occupant of a car always has a reasonable expectation of privacy via mere possession and control, because that would afford privacy expectations to people who would have no such expectation, such as a car thief. The Court remanded the case on this issue. NPR discusses the implications that both McCoy and Byrd have for individual rights in criminal justice cases.

Murphy v. NCAA

Murphy v. NCAA also received significant news coverage, as it invalidated a federal statute that prohibited modifications or repeal of state-law prohibitions on sports gambling. More specifically, the Court held that the statute unconstitutionally “commandeered” the regulatory power of States in contravention of New York v. United States and the Tenth Amendment. USA Today notes states now have the opportunity to legalize sports gambling “as they see fit,” and the Washington Post explores other implications here. As Forbes notes, however, states do not have to legalize such gambling and can regulate it in a variety of ways. The case also suggests that the Trump administration’s efforts to require state and local government cooperation in immigration enforcement faces an uphill battle.

Justice Breyer joined most of Justice Alito’s majority opinion but joined the portion of Justice Ginsburg’s dissent that addressed “severability,” the fate of the parts of the statute that were not expressly held unconstitutional but that the majority held could not be separated from the unconstitutional portion. Stephen Wermiel of SCOTUSblog explains how this case may not be 6-3 or 7-2 but rather 6-1-2. (Severability was last a major issue in the first Obamacare case, NFIB v. Sebelius.)

United States v. Sanchez-Gomez and Dahda v. United States

In a unanimous decision, the Court vacated and remanded a case for mootness. U.S. v. Sanchez-Gomez dealt with a challenge to full restraints used during non-jury, pretrial proceedings. The restraints at issue in this case include full five-point restraints where the “defendant’s feet are shackled together and a waist chain connects to tightly restrain their cuffed hands,” Jurist reports. The Court declined to reach the merits of the claim, however, but made clear that there were other ways defendants subjected to this practice could litigate its constitutionality. And in the 8-0 decision in Dahda v. U.S. (Justice Gorsuch was recused), the Court analyzed the use of wiretapping as a means by which to intercept communications of drug dealers in Kansas, and rejected the argument that the orders were facially insufficient under the relevant statute, 18 U.S.C. §2518(3).

The Court will continue to release opinions through May and June, so don’t forget to check back with ISCOTUSnow for updates!

ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro contributed to this post.

The Rise and Fall of the No-Litmus-Test Rule

For decades, presidential candidates disclaimed the idea that they would have “litmus tests” for their nominees to the Supreme Court. Republicans and Democrats alike agreed that to demand that their judicial nominees decide particular cases particular ways would be wrong. Judicial litmus tests were bad. They were what candidates accused opponents of having. In the 2016 election, this taboo was exploded.

The idea of a Supreme Court litmus test first became prominent in post-Roe v. Wade debates over the right to abortion. The 1980 Republican platform included a promise to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life,” and the party’s nominee, Ronald Reagan, denounced Roe. Yet Reagan always insisted that he would not use opposition to the decision as a requirement for his Supreme Court nominees. Democrats nonetheless attacked Reagan throughout his presidency for having an abortion litmus test. Senator Daniel Patrick Moynihan went so far as to declare “ideological tests for the judiciary” a form of “corruption.”

In 1988, both major party candidates disclaimed having any litmus tests for Court appointments. Four years later, then-incumbent George H.W. Bush again rebuffed accusations that he had any litmus tests. Bush supporters attacked Democratic nominee Bill Clinton when he indicated that a commitment to upholding Roe would be a requirement for his Court nominees. Clinton and his advisors tried to steer clear of the litmus-test label. They ultimately chose largely to sidestep the Court as a campaign issue.

In 2000 and again in 2004, George W. Bush came out strongly in support of a pro-life position on abortion, yet he too insisted he would not make opposition to Roe a litmus test for his Court appointments.

The 2016 election shattered what previously had been a stable precedent that presidential candidates must openly reject litmus tests for potential Supreme Court appointments. In the Democratic primary, Bernie Sanders declared that his nominees would have to be committed to overturning Citizens United, even embracing the previously verboten “litmus test” label. Clinton matched Sanders by also stating opposition to Citizens United would be a litmus test. She then upped the ante by declaring that she would have “a bunch of litmus tests” for her nominees.

Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nomineesOn the other side, Trump went on record declaring opposition to Roe and support for religious liberty and for Heller as litmus tests for his nominees.

Legal commentator and newspaper editors protested the apparent fall of the no-litmus-test norm, but their criticism had little effect on the candidates.

Whether there is any life left in the no-litmus-test norm is a question that will be answered in future presidential elections.

This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt. It is the fifth of a multi-part ISCOTUS series on the Supreme Court and the 2016 presidential election.


April Argument Review V – Administrative Law, Deference to Foreign Courts, and More

On April 23, the Court heard oral arguments in Lucia v. Securities and Exchange Commission, a case about whether Securities and Exchange Commission (“SEC”) administrative law judges (“ALJs”) are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution or merely employees of the SEC.  Alison Frankel of Reuters explains that in its Supreme Court brief, the Justice Department acknowledged that SEC ALJs are subject to the Appointments Clause. As Greg Stohr of Bloomberg explains, if the court agrees, there is a possibility that ALJs in a variety of agencies “could be fired for issuing rulings that clash with administration priorities.”

At argument, the justices did not appear to agree as to whether that would be a positive or negative development.  During the argument Chief Justice John Roberts stated this case could bring “political accountability” to federal judges, and in contrast Justice Stephen Breyer said the case could mean “goodbye to the independence” of ALJs. Robert Barnes of The Washington Post noted that Justice Elena Kagan likewise appeared worried about political pressure on ALJs, something they are shielded from as the law stands currently.

David G. Savage of The LA Times reports that some legal experts contend that a decision in favor of Lucia could also open the door for the President to be able to remove other executive officers, such as special counsel Robert Mueller. However, the tenor of the argument did not suggest that the justices have an interest in ruling that broadly. Check out The Wall Street Journal and U.S. News for more commentary on the arguments in this case.

On April 24, the Court heard arguments in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The issue in this case is whether U.S. courts should defer to foreign government’s interpretation of their own law, or if U.S. courts can exercise their own interpretation of the foreign law. Greg Stohr of Bloomberg reports that the Trump administration is partially backing Animal Science Products, who sued Hebei alleging they violated U.S. antitrust law by price fixing Vitamin C imports. China’s Ministry of Commerce had their day in the courtroom as they were granted argument time “unprecedently” by the Court. China’s lawyer, Carter Phillips argued that Hebei was just following Chinese law that required them to fix prices. Regarding the argument that U.S. courts should defer to foreign government’s interpretation of their law, Justice Elena Kagan asked, “How can you say that the only thing that shows respect to foreign governments is to do something that we don’t know that any other foreign nation does?”   that Justice Neil Gorsuch appeared to take an opposing stance and questioned why we should not defer to an administrative agency of a foreign sovereign, such as how “Chevron deference” allows courts to defer to interpretations of U.S. administrative agencies. Check out Reuters and Wall Street Journal  for more information on the arguments.

On April 23, the Court also heard oral arguments in Pereira v. Sessions. This is a statutory interpretation case about cancellation of removal (deportation) under 8 U.S.C. §1229b. At issue is whether a “notice to appear” issued by the government must meet certain criteria, as laid out in §1229(a), such as a court date and time. The oral argument transcript can be found here, and the recording can be found at Oyez. And in another case that week, Chavez-Meza v. United States, involving a sentencing issue, “[e]mbattled Deputy Attorney General Rosenstein“, argued on behalf of the government, as he participated in the tradition of a high-ranking Department of Justice Official arguing a case in front of the Court.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both Class of 2020, contributed to this post, which was 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.

April Argument Review IV – Race Discrimination and Voting

On April 24, the Court heard arguments in Abbott v. Perez, the third redistricting case that the justices have heard this Term. Unlike the other cases, Gill v. Whitford and Benisek v. Lamone, which involved partisan gerrymandering, this case involves allegations of racially discriminatory redistricting in violation of the Voting Rights Act and/or the Equal Protection Clause.

The case is a 2017 challenge to congressional and state legislative districts created by the Texas Republican-controlled legislature in 2011 and 2013. The three-judge district court concluded that the federal congressional district impermissibly diluted Hispanic voters and that the state legislative district constituted an unconstitutional racial gerrymander. The three-judge district court then ordered the Texas Attorney General to issue a written advisory within three days stating whether the legislature would hold a special session to address the redistricting, and if not, the parties were ordered to appear before the court to prepare remedial redistricting plans. The state of Texas appealed the decision the the Supreme Court.

The plaintiffs argue that the district court order is not an interlocutory injunction that the Court can yet review, while the state of Texas argues that while the order did not include the word injunction, it functioned as one. Thus, before considering the substantive issues as to whether the districts are unlawful, the Court must consider whether it has jurisdiction to hear the case at all.

Scott Keller, Texas Solicitor General, attempted to begin by arguing the state legislature did not have a racially discriminatory purpose when it adopted the court-drawn maps, but Justice Sotomayor directed him to address whether the Court had jurisdiction to consider the case, as the three-judge district court had not issued or denied an injunction. Mr. Keller spent most of his time addressing the jurisdictional question, arguing that when the district court ordered the state to appear for expedited court-drawn redistricting, the order functioned as an injunction. Justice Breyer posited that if the Court treated the order as an appealable injunction, the Court would hear thousands of appeals from similar orders from three-judge courts, and prompted Mr. Keller to point out where the order “says injunction denied or says injunction granted from which there is an appeal.”

U.S. Solicitor General Edwin Kneedler, arguing on behalf of the United States in support of Texas, spent more time discussing the merits. He stated that whether the district enacted by the state legislature in 2013 was impermissibly discriminatory depends on the intent of the legislature at that time. “Here,” he argued, “the presumption of good faith is particularly strong” because the plans that the legislature adopted were created by the district court “following this Court’s careful instructions.”

Max Renea Hicks, arguing on behalf of the plaintiffs, referenced a quip by Justice Scalia from his dissent in Syked v. United States. “Insanity is doing the same thing over and over again and expecting a different result,” he stated. “[T]he Texas legislature is not insane. It knows how to do redistricting maps. . . with respect to diminishing minority voting rights.  So I would ask the Court to look at it this way: if you’ve done it in 2011 and you know the outcome of it, discrimination is doing the same thing over and over again and expecting and achieving exactly the same results.”

Allison J. Riggs, also arguing on behalf of the plaintiffs, also emphasized that Texas adopted the court-made district in 2013 “as a mask for the discriminatory intent that had manifested itself just two years ago.” Justice Alito pushed Ms. Riggs, asking “what is your evidence that the state adopted the plan previously approved by the court for an invidious reason?” To this, Ms. Riggs responded that the “legislature ignored the explicit warnings of the district court that its ruling was preliminary; it wasn’t done looking” and adopted the plan regardless.

More information about the case and the argument is available in Amy Howe’s summary for SCOTUSblog.

ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, contributed to this post, which was 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.

April Argument Review III – Trump v. Hawaii and Presidential Statements

Trump v. Hawaii, the challenge to the third version of the travel ban issued by President Trump, was the last argument of the Term, argued on April 25.  The case featured two extremely experienced advocates: former Acting Solicitor General for the Obama Administration, Neal Katyal, representing the state of Hawaii, and current Solicitor General, Noel Francisco.

In a proclamation, President Trump limited travel from eight countries: Chad, Libya, North Korea, Iran, Somalia, Syria, Venezuela, and Yemen. Hawaii challenged the proclamation, arguing that it exceeded the president’s authority under the Immigration and Nationality Act (“INA”), specifically section 1182(f), and also violated the Constitution. The federal district court issued a preliminary injunction blocking the order and the Ninth Circuit upheld that ruling. The courts held that the proclamation likely violates the Immigration and Nationality Act.

The government defended the proclamation as within the President’s INA authority because the statute gives the president a “broad and flexible power,” and the proclamation reflects his foreign policy and national security judgment as to whether the government has enough information needed to determine whether aliens from particular countries are admissible. The government also argued that under the 1972 case, Kleindienst v. Mandel, once the government presents a legitimate reason, such as national security, for not admitting aliens, the decision is not subject to judicial review.

Addressing the statutory argument, Katyal argued that Congress already implemented a three-part plan to address the problem of certain countries not providing sufficient information for the U.S. government to vet nationals, and that plan included a ban on nationality discrimination in section 1152, also part of the INA.

The advocates also addressed whether the proclamation violated the Establishment Clause of the First Amendment because an objective observer would conclude that it was adopted for the purpose of excluding Muslims. In a high-stakes concession, Katyal agreed with Chief Justice Roberts that if the President “tomorrow” disavowed any anti-Muslim purpose or rhetoric, the Establishment Clause issue would disappear. In apparent response, in the last 30 seconds of his rebuttal, Solicitor General Francisco stated:

Well, the President has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries of the world. This proclamation is about what it says it’s about: Foreign policy and national security.

This statement turned out to be one of the most controversial in the case. Observers tried unsuccessfully to identify what September 25 statement the Solicitor General was referring to. (Full disclosure: I am one of many who said publicly that it was important for the government to correct or clarify the statement.) On May 1, the government filed a letter correcting the date in question, indicating that the reference was to January 25, 2017, and statements made that day that were cited in its reply brief. This clarification has not satisfied opponents of the proclamation. Since oral argument, and despite Katyal’s concession, the President and his press secretary have declined to make any disavowals of an intent to ban Muslims.

Bridget Flynn, Chicago-Kent Class of 2019, contributed this post.


Opinions – The Calm Before the Storm

The Supreme Court is expected to issue opinions on Monday morning, May 14. Virtually all of the major cases argued this Term, even some from October, are yet to be decided, and the Court is off to its slowest start in many years, so Monday could be a bit of a blockbuster.

But as we wait for the latest opinions, let’s look back at the Court’s three most recent opinions — all issued during the week of April 2. The most politically charged of those opinions was Jesner v. Arab Bank, in which, by a 5-4 vote, the Court held that foreign corporations may not be defendants in suits brought under the ATS. Justice Kennedy delivered the opinion, joined in part by Chief Justice Roberts, Thomas, Alito, and Gorsuch. (Justice Thomas also filed a concurring opinion, andJustices Alito and Gorsuch filed opinions concurring in part and concurring in the judgment.)J ustice Sotomayor filed a 34-page dissent, joined by Justices Breyer, Kagan, and Ginsburg.

The ATS is a provision of the Judiciary Act of 1789 that grants district courts original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Under the ATS, the petitioners, foreign nationals injured or killed by terrorist attacks between 1995 and 2005 in Israel, the West Bank, and Gaza, brought suit against Arab Bank, PLC, a foreign corporation that allegedly facilitated the acts of terrorism that caused their injuries. The United States District Court of the Eastern District of New York dismissed their claims after the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum Co., which held that foreign corporations could not be sued under the ATS (the Court affirmed the holding in Kiobel, but on the grounds that claims cannot normally be brought pursuant to the ATS when all conduct relevant to the suit took place outside of the United States). The Second Circuit affirmed the dismissal, which the petitioners appealed, and the Supreme Court affirmed.

The five-justice majority emphasized that Congress enacted the ATS to “promote harmony in international relations by ensuring foreign plaintiffs a remedy for international law violations”, in order to discourage litigation against the United States. This case, the Court emphasized, does the opposite. “At a minimum, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States well illustrates the perils of extending the scope of ATS liability to foreign national corporations like Arab Bank,” stated Kennedy in the opinion. “For 13 years, this litigation has ‘caused significant diplomatic tensions’ with Jordan, a critical ally in one of the world’s most sensitive regions.”

The dissent argued that, by “categorically foreclosing foreign corporate liability” under the ATS, the Court is “[absolving] corporations from responsibility under the ATS for conscience-shocking behavior.” Analogizing to Citizens United v. SEC, Justice Sotomayor concluded that by shielding corporations from liability under the ATS, the Court “allows these entities to take advantage of the significant benefits of the corporate form and enjoy fundamental rights, without having to shoulder attendant fundamental responsibilities.”

While Joan Biskupic at CNN, writes that Jesner is evidence of increasing tension between the liberal and conservative blocs on the Court, Walter Olson, at the Cato Institute, argues that the decision “[confirms] that is it up to Congress, not the judiciary, to decide whether and when American courts should entertain international human rights cases against foreign defendants.”

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC , one of the most highly-anticipated intellectual property opinions of the Term, was written by Justice Thomas. The only dissenters were Justice Gorsuch, who wrote an opinion, and Chief Justice Roberts, who joined him. This case was about inter partes review – an administrative process that allows the Patent and Trade Office (“PTO”) to reconsider and cancel patents that were (allegedly) improperly issued because they fail the novelty or nonobviousness standards. The Court upheld this procedure against claims that it violates Article III or the Seventh Amendment jury right., holding that Congress had properly delegated inter partes review to the PTO, and that “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” In the related case of SAS Institute, Inc. v. Iancu, the Court held, 5-4, that when it undertakes inter partes review, the PTO must consider all of the challenges raised to the patent.

Adam Liptak of The New York Times writes that supporters of inter partes review see it as a way to combat “patent trolls” – companies that obtain patents and then, rather than use the patents, demand royalties and sue for damages. Critics of the decision have said that the Court is undermining the stability and effectiveness of patents as property rights that form the foundation of the U.S. innovation economy. And Joe Nocera explored the views of different industries in Bloomberg, painting a picture of tech companies on one side (supporting inter partes review because of how often patents are challenged in court) against drug companies on the other side (criticizing inter partes review because it cuts down on their ability to build “patent fortresses” around a branded drug to maintain that drug’s profitability). In addition, Nocera writes that patent examiners may not be getting it right the first time because the Patent and Trademark Office is entirely overwhelmed with patent applications –receiving upwards of 640,000 applications each year, with only around 8,000 patent examiners.

ISCOTUS Fellows Elisabeth Hieber, Chicago-Kent Class of 2019, and Eva Dickey, Chicago-Kent Class of 2020, contributed to this post, which was 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.

April Argument Review – Part II – Tribal Fishing Rights

Native American fishing rights are at issue in Washington v. United States, argued in April 18, and covered by ISCOTUS now here. In the “Stevens Treaties,” a series of agreements made in the 1850s between the federal government and Indian Tribes in what are now the states of Idaho, Montana, Oregon, and Washington, the Tribes relinquished most of their territory, but retained in perpetuity “the right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory.”

In this case, the Tribes, joined by the United States, are seeking “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat.” The Tribes argue that culverts violate the treaties because they prevent salmon from accessing tribal fishing grounds, thus degrading fisheries and interfering with the Tribes’ “right of taking fish.” The district court found for the Tribes, which the Ninth Circuit affirmed, reiterating that the treaties guaranteed that “the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” The petitioner, the state of Washington, argues that while treaties do guarantee the Tribes the right to access fishing grounds, they do not guarantee the Tribes a standard of living of living from fishing.

At argument, the Court focused primarily on the appropriate standard to determine when the state violates the treaties. Noah Purcell, the Solicitor General of Washington, argued that a barrier would violate the treaties only if it causes “a large decline in a particular river and that it’s not justified by substantial compelling interests.” When Justices Alito and Kagan pressed Mr. Purcell to clarify this standard, he explained that “a decline of half the salmon would certainly easily qualify” but a decline between 1 and 5 percent would not qualify. Justice Gorsuch also pressed Mr. Purcell on his assertion that barriers would not violate the treaty if justified by a substantial compelling interest. “I don’t see anything in the treaty…that says: Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you’re taking…before this Court.”

Allon Kedem argued on behalf of the United States, and William M. Jay, argued on behalf of the Tribes. Both were also asked to clarify the appropriate standard of salmon degradation that would constitute a treaty violation. Mr. Kedem did not provide a specific number, but stated that “substantial degradation” is “harm that is both durable and appreciable, meaning the type of thing that shows up year after year, despite normal fluctuations.” Mr. Jay said that substantial degradation does not mean “a hard and fast number” but is “something that you would determine, factually, in the context of one fish species versus another.”

Reviewing the arguments for SCOTUSblog, Miriam Seifter writes that while the Court “is unlikely to devote its opinion to correcting factual findings”, it “does seem poised to announce some standard for violations of the treaties.”

Also on Wednesday, April 18, the Court heard arguments in Lagos v. United States, which presents the question of whether, under the Mandatory Victims Restitution Act (MVRA), a criminal defendant can be ordered to pay costs to the victim that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and which no official government action prompted. The case involves the MVRA’s requirement that courts must order the defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. 3663A(b)(4).

The Fifth Circuit, and other courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were “neither required nor requested” by the government, but the D.C. Circuit has disagreed.

Daniel Geyser, a Dallas attorney, argued on behalf of the defendant, the former owner and CEO of a holding company that owned USA Dry Van Logistics LLC, a trucking company. Lagos induced GE Capital to loan his company tens of millions of dollars by modifying Dry Van’s records, leading GE Capital to incur almost $5 million in debt.

Geyser argued that the MVRA’s language “does not include the cost of hiring four law firms, a consulting firm and forensic experts for a private investigation in bankruptcy litigation.” Unlike other restitution provisions, the MVRA does not provide make whole relief, he argued. Geyser further argued that GE Capital incurred expenses before the government’s investigation, and therefore they did not qualify as expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

Michael Huston, Assistant to the Solicitor General, argued on behalf of the United States, taking the position that the statute is not limited to participation in the government’s investigation. Several justices appeared to disagree, however. Chief Justice John Roberts, for example, stated that the statute refers to only one investigation and that must be the government’s. And Justice Breyer told Huston that he has “a big problem” with the statute’s language because it does not clarify whether a victim should receive restitution for costs incurred during a company’s investigation before a police investigation begins.

On Tuesday, April 17, the Supreme Court heard arguments in Lamar, Archer & Cofrin, LLP v. Appling, in which the Court will decide if an oral statement regarding a single asset is a statement “respecting the debtor’s financial condition,” as described in the United States Bankruptcy Code. Danielle D’Onfro of SCOTUSblog reports that the justices asked few questions of the parties in this case, but when they did, they primarily focused on what types of statements, such as “I’m above water,” “I own a genuine Vermeer,” and “I have a bank account with a billion dollars in it,” can be considered actual statements about one’s “financial condition.” D’Onfro believes the ruling will not “clarify much beyond a few words in Section 523,” and the case “may be in the running for the narrowest decision of the term.” To read more about the case, check out the Jurist’s article, here.

ISCOTUS Fellows Bridget Flynn, Elisabeth Hieber, and Matthew Webber, all Chicago-Kent Class of 2019, contributed to this post, which was 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.

April Argument Review: Part I – State Taxation of Internet Commerce

April saw several significant oral arguments, including a case that could change the rules for state taxation of internet commerce, South Dakota v. Wayfair, previewed here. In Wayfair, the state of South Dakota, with the support of forty-one other states, is asking the Court to overrule a 1992 case, Quill Corp. v. North Dakota. Quill held that the commerce clause prohibits state governments from taxing out-of-state retailers that do not have a physical presence in the state on the sale of goods.

South Dakota Attorney General, Marty J. Jackley, argued  first that under Quill, states are losing “massive sales tax revenues” needed for “education, health care, and infrastructure.” Second, he argued that the holding it hurts smaller retailers with brick-and-mortar stores who are trying to compete against the larger, national retailers with an online presence.

Justice Sotomayor asked Jackley “[h]ow much contact is enough to justify placing this obligation on an out-of-town seller?” She was also concerned about logistics, asking what would happen if a company lost track of how much it had sold in a particular state. Chief Justice Roberts pointed out that some of the larger e-commerce companies are expanding to the point that they have a physical presence in most, if not, all 50 states, arguably rendering a reversal of Quill irrelevant. Jackley responded by stating that although a few companies—principally Amazon—are expanding their physical presence, states are expected to miss out on some $100 billion in lost revenue over the next decade. Justice Kennedy, no fan of Quill, stated that “this court has made a statement of constitutional law that … has now, especially in light of the cyber age, proven incorrect.”

Arguing against a reversal of Quill, George Isaacson, representing Wayfair argued that Congress should identify the parameters of taxation across state lines. For example, he argued, “[Congress] can require standard uniform definitions of products so that food and sportswear and clothing doesn’t mean one thing in one jurisdiction ad another elsewhere. “ Similarly, Chavie Lieber of Racked.com highlights a similar argument made by those opposed to the Supreme Court overruling Quill. Such a reversal of  via the Supreme Court would “open a can of worms” as local state tax regimes restructure how they levy those new taxes. Alan Horowitz of Appellate Tax reviewed the oral argument in detail, concluding that signs pointed towards a closely divided court likely to uphold its prior precedent.

In another tax related-case, Wisconsin Central Ltd. v. United States, the issue revolved around whether stock transferred by a railroad company to an employee is taxable compensation under the Railroad Retirement Tax Act. Elizabeth Lowman of Jurist writes that during the argument Wisconsin Central argued that stock is not money as defined as a “generally accepted medium of exchange.” The government on the other hand argued that more than just cash money falls under the purview of the statute and cited other non-cash examples that are taxed for support. Daniel Hemel of SCOTUSblog similarly noted that the main focus of the justices was what is considered “money,” and what is not.

And in WesternGeco LLC v. ION Geophysical Corp., argued the same day as Wisconsin Central, the Court considered whether a domestic patent holder can be awarded foreign lost-profit damages, or if the presumption against extraterritoriality bars such recovery. In this case, the Respondent produced components parts of a patented item that, if put together in the United States, would constitute patent infringement. Instead, however, Respondent shipped the components to foreign parties to be combined and then used outside of the United States.

Petitioner argued that the presumption against extraterritoriality should not apply because the loss of foreign profits is a direct and foreseeable result of a domestic act of infringement. Justice Breyer had questions for Petitioner primarily aimed at the idea of comity – whether or not allowing foreign lost-profits damages in this case could have the effect of foreign corporations going after components manufacturers in the United States for violating foreign patents.

Addressing Justice Breyer’s concerns, the Assistant to the Solicitor General, arguing for the United States in support of the Petitioner, noted that the comity issue should not be very concerning given that similar damages are already awarded in tort, contracts, and copyright law. The United States also argued that once the infringement is established, if the patentee is able to show that such infringement is the proximate cause of the patentee’s lost profits, the patentee should be allowed to recover full compensatory damages.

Respondent argued that the presumption against extraterritoriality should bar the Petitioner from being awarded foreign lost-profit damages, because the harm (downstream loss of foreign profits once the patented device is used abroad) is too far removed from the domestic act of infringement for these damages to appropriately be awarded. Many of the Justices’ questions for the Respondent were based around the idea that applying the presumption against extraterritoriality here would prevent the patentee from being fully compensated for the patent infringement.

Check out a quick overview of the background of the case and oral arguments from Reuters. And write up of the oral arguments from patent law blog Patently-O can be found here.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both Chicago-Kent Class of 2020, contributed to this post, which was 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.

The Court and the 2016 Election—Lessons From History

When it comes to the role of the Supreme Court on the presidential campaign trail, how does the 2016 election compare to past elections? For all its precedent-shattering and unpredictable qualities, the 2016 campaign basically fell into a predictable dynamic when it came to the candidates’ treatment of the Court.

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As I discussed in my earlier posts in this series on the Court and the 2016 election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves showed relatively little interest in the issue. This limited interest only decreased as Election Day approached. In my last post, I offered factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. In this post, I turn to history to show that the Court has always been a difficult issue on the campaign trail for presidential candidates. Continue reading

The Court and the 2016 Election—Explaining the Forgotten Issue

As I discussed in my earlier posts on the Supreme Court and the 2016 presidential election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves seemed uninterested in the issue. Trump released a list from which he promised to select a nominee for Justice Scalia’s vacant seat and he made brief reference to the Court in his stump speeches, but he spent most of his time on the campaign trail on other topics. Clinton rarely mentioned the Court. When she did, it was usually in response to a direct question. The candidates’ limited engagement with the Court only decreased as they got closer to Election Day.

In this post I offer four factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. Continue reading