Weekly Roundup – January 20, 2017

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

The Supreme Court had only two days of argument this week and an unusual schedule. In addition to observing Martin Luther King, Jr Day on Monday, the Court held its Conference on Thursday rather than Friday due to Inauguration Day, when Chief Justice Roberts swore in Donald Trump as the 45th President of the United States. In honor of the occasion, Tony Mauro of Law.com provides a run-down of memorable Supreme Court moments from previous inaugurations.

On Tuesday, the Court heard arguments in Lynch v. Dimaya and Midland Funding, LLC v. Johnson. Lynch concerns part of the Immigration and Nationality Act (INA), which authorizes the deportation of any non-citizen convicted of an aggravated felony. The issue in Lynch is whether or not the INA definition of an “aggravated felony” is unconstitutionally vague. This case involves a constitutional challenge generally brought to criminal statutes, and immigration law has typically been evaluated differently. In a 1951 case, however, the Court considered a similar challenge to an immigration law. Kevin Johnson of SCOTUSBlog analyzed the argument. Johnson observed that while the justices might not agree that the particular statute is unconstitutionally vague, the Court seemed unlikely to reject the possibility that this challenge to immigration law could ever be brought.

Midland Funding, LLC questions whether it is a violation of the Fair Debt Collection Practices Act for a collection agency to file a proof of claim for an unpaid debt after the statute of limitations on the debt has expired. It also addresses whether the U.S. Bankruptcy Code authorizes a creditor to file proof of claim despite the statute of limitations. Diane Davis of Bloomberg BNA provides a summary of the argument.

On Wednesday, the Court heard arguments in Lee v. Tam and Ziglar v. Abbasi. Lee concerns a provision of the Lanham Act that bans the registration of trademarks determined to be “disparaging” to “persons, living or dead, institutions, beliefs, or national symbols.” The U.S. Patent and Trademark Office cited this provision when it denied the Asian-American band, “The Slants,” the trademark of their band name. Sarah Jeong of the New York Times provided an in-depth look at how Lee arrived at the Supreme Court, published the day before the argument. Jeong describes how Simon Tam decided to name his band “The Slants” in order to reclaim a stigmatizing label often associated with Asian-Americans. Jeong writes, “On Jan. 18, Tam’s lawyers will be facing down Lee’s lawyers before eight justices, none of whom are Asian, to decide the fate of the Slants and whether trademark law can accommodate ‘taking a word back.’” The Economist provides a description of the argument — and the justices’ apparent skepticism of the law.

Ziglar is a consolidation of three cases brought by a group of Muslim men detained following the terrorist attacks of September 11, 2001. The former detainees argue that their Constitutional rights were violated during their detention and seek to hold specific government officials individually liable. The issues in the case largely revolve around the scope of the government officials’ immunity. The Washington Post reports on the argument, and adds that “[h]uman rights and immigrant advocates say the outcome of the case is even more significant with the inauguration Friday of ­President-elect Donald Trump.” The arguments were heard by a six-justice court, as Justices Sotomayor and Kagan were recused.

Also on Wednesday, the Court issued the only opinion of the week in Lightfoot v. Cendant Mortgage Corporation. Justice Sotomayor delivered the unanimous decision, which examined whether or not the language “to sue or be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal” in the federal charter of the Federal National Mortgage Association (Fannie Mae) granted jurisdiction in federal court in any case in which Fannie Mae is a party. The Court concluded that this clause did not confer federal courts jurisdiction in all such cases. Ronald Mann of SCOTUSBlog provides an analysis of the opinion, arguing that the “decision in this case should surprise no one” because of the Court’s fear that accepting the clause in the charter would lead to an explosion of cases introduced to federal court.

On Thursday, the Court met for Conference and granted cert in two cases: District of Columbia v. Wesby, a case examining Fourth Amendment probable cause concerns and the qualified immunity of police officers. And Bristol-Myers Squibb v. Superior Court of California, San Francisco County, a case concerning the standard for determining  when a state court has “specific jurisdiction” in a lawsuit. Amy Howe of SCOTUSBlog provides a review of these cases, which could potentially be argued in April, with a new justice on the bench.

The Week Ahead – January 16, 2017

The Court has another busy week ahead. Over the course of Tuesday and Wednesday, the Court will hear arguments in four cases, issue orders from its January 17 conference, and possibly hand down opinions. Come Thursday, the Court will meet for conference. The Court did not sit on Monday, January 16, the federal holiday honoring Dr. Martin Luther King, Jr.

On Tuesday, the Court will hear arguments in Lynch v. Dimaya and Midland Funding, LLC v. Johnson. Lynch addresses the Immigration and Nationality Act and its power to govern removal of illegal aliens. The Court must analyze whether 18 U.S.C. 16(b) of the Act is unconstitutionally vague. In his SCOTUSblog argument preview, Kevin Johnson explains that the case raises a due process vagueness challenge to a civil immigration statute. The federal government argues that such a challenge is not cognizable but that, in any event, the statute is not vague. Because of the possibility of expanding the void-for-vagueness doctrine into the immigration context, Johnson argues that this case could have “potentially far-reaching constitutional implications.” In the second case of the day, Midland Funding, the Court must decide whether it is a violation of the Fair Debt Collection Practices Act to file a proof of claim on a time-barred debt in a bankruptcy proceeding. In other words, as Diane Davis of Bloomberg BNA explains, the case will address “just how much the debt buying and collection industry can leverage the bankruptcy system to collect on debts they otherwise couldn’t pursue.”

On Wednesday, the Court will hear arguments in Lee v. Tam and Ziglar v. Abbasi.  Lee presents a potential challenge to the Free Speech Clause of the First Amendment. The case involves an Asian-American band called “The Slants” who sought to trademark their band’s name. However, the United States Patent and Trademark Office denied the trademark registration request under the “disparagement” provision of the Lanham Act. The provision provides that no trademark shall be refused unless “it [c]onsists of…matter which disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” The Court will consider address whether this provision violates the First Amendment. NPR discussed this case in its weekly “Words You’ll Hear” segment. Finally on Wednesday, the Court will hear a case that relates to the terror attacks of September 11, 2001. A group of Muslim men were detained by the United States after the attacks, and they subsequently sued for violation of their constitutional rights. The question in front of the Court is about the men’s right to sue federal officials. SCOTUSblog explains the arguments the Court is likely to hear on Wednesday. The three basic questions in the case are whether the judge-made cause of action under which the men are suing, known as a Bivens action, reaches the allegations of the case, whether the defendants are immune, and whether the plaintiffs adequately stated a claim in their complaint. The Guardian addresses the implications of this case under the Trump Administration and more generally discusses civil rights organizations’ expectations for the next four years.

This Day In Supreme Court History—January 13, 1988

On this day in 1988, the Court decided Hazelwood School District v. Cathy Kuhlmeier, holding that students do not have a First Amendment right to publish a school newspaper free from school administrator editorial oversight.

The Spectrum, the school newspaper of Hazelwood East High School in Missouri, was written and edited by students. In May 1983, the school principal ordered the editors to withhold articles dealing with divorce and teenage pregnancy that he found inappropriate. Cathy Kuhlmeier and two other students sued the school district. The district court held that the school district had not violated the First Amendment. The Eighth Circuit Court of Appeals reversed.

In its 5 to 3 decision, the Supreme Court held that the students’ First Amendment rights were not violated. The majority opinion, written by Justice Byron White, gave the following reasons for the decision. First, the student newspaper was not a public forum. The school administrators had never demonstrated an intent to open it to “indiscriminate use” by student reporters and editors, or by the student body. Rather, they used the paper “as a supervised learning experience for journalism students.” Thus, school officials could regulate the contents of the paper “in any reasonable manner.” Second, educators do not violate the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored activities when “their actions are reasonably related to legitimate pedagogical concerns.” And third, in this case, the principal’s editorial deletions were reasonable.

In dissent, Justice Brennan stated that the principal had “violated the First Amendment’s prohibitions against censorship of any student expression that neither disrupts classwork nor invades the rights of others, and against any censorship that is not narrowly tailored to serve its purpose.” He wondered whether the reasoning of the majority’s opinion meant that administrators could censor a student who says “socialism is good” in a political science class or a “gossip who sits in the student commons swapping stories of sexual escapade.” He warned that recognizing the educator’s “undeniable, and undeniably vital, mandate to inculcate moral and political values” not be understood as “a general warrant to act as ‘thought police’ stifling discussion of all but state-approved topics and advocacy of all but the official position.”

Weekly Roundup – January 13, 2017

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

Today, the Court met for conference to discuss petitions for certiorari. It granted certiorari in 16 cases, for a total of 13 hours of oral argument, all likely to be argued this Term. The Orders List is here, and Amy Howe of SCOTUSblog discusses some of the grants here. In three different cases, consolidated for a single hour of argument, the Court agreed to consider whether the National Labor Relations Act, which protects’ employees right to engage in “concerted activities for the purpose of … mutual aid and protection,” means that an arbitration agreement cannot preclude an employee from bringing a class action. The National Labor Relations Board ruled that it did, and the courts of appeals had split. This is a very important case, pitting the Federal Arbitration Act against the NLRA. It will also be very interesting to see if the Trump administration continues to support the NLRB’s position, as the Obama Administration has.

Even before today, the eight-member Court was busy this past week. On Monday, the Court handed down a per curiam opinion in White v. Pauly, ruling without hearing oral argument and without full briefing. Samuel Pauly is a New Mexico man who was shot and killed by police officer Ray White after Pauly pointed a gun at White and a group of officers. Pauly’s estate sued the officers, arguing that his constitutional right against use of excessive force was violated. White argues he used a reasonable amount of force and that he is entitled to qualified immunity. The lower court considered the use of force from the perspective of the suspect instead of the perspective of a reasonable police officer. The lower court denied the officers’ motion for summary judgment on the basis of qualified immunity. The Supreme Court vacated, holding that the lower court incorrectly relied upon “general principles from other excessive force cases,” instead of identifying a case with similar facts and circumstances to the case at hand. It also held that as long as White did not violate “clearly established statutory or constitutional rights of which a reasonable person should have known,” then he is entitled to qualified immunity. Although the Court did not discuss the other officers’ qualified immunity claims in detail, it indicated it was expressing no opinion on whether qualified immunity might be available to them based on other arguments. Justice Ginsburg concurred, emphasizing that the Court’s opinion did not preclude denial of summary judgment on qualified immunity grounds on remand. Review the opinion, here.

Also on Monday, in orders issued from its January 6 Conference, the Court asked the U.S. Solicitor General to file briefs detailing the United State’s view in four cases: Rubin v. Iran, Bank Melli v. Bennett, Fenkell v. Alliance Holdings, and Bulk Juliana v. World Fuel Services. Two cases, Rubin and Bank Melli,  involve lawsuits against the Islamic Republic of Iran and the Foreign Sovereign Immunities Act. Fenkell addresses the Employee Retirement Income Security Act of 1974. And Bulk Juliana discusses maritime-law. Read more about Monday’s orders on SCOTUSblog.

And on Monday, the Court heard argument in two cases: Nelson v. Colorado and Lewis v. Clarke. Nelson involves a challenge to Colorado’s Exoneration Act, which requires the state to return fees and other payments made by criminal defendants if their convictions are reversed or overturned — but only if the defendants establish their innocence by clear and convincing evidence. Colorado faced very skeptical justices, who appeared to believe that return of such payments should be routine without any special showing. USA Today breaks down Monday’s arguments in front of the Court. In Lewis, the Court addresses sovereign immunity of an Indian tribe. Todd Henderson of SCOTUSblog analyzes the arguments in front of the Court, notes how complex they are, and expresses doubt that the 8-member Court will issue a sweeping ruling.

On Tuesday, the Court heard Expressions Hair Design v. Schneiderman and Goodyear Tire & Rubber Co. v. Haeger. Expressions Hair Design evaluates at the constitutionality of no-surcharge laws and the difference between paying in cash versus paying with a credit card. The Washington Post’s Robert Barnes discusses the role the First Amendment plays in this case.

Finally, on Wednesday, the Court heard Endrew F. v. Douglas City School District involving the Individuals with Disabilities Act and what “appropriate” public education children are entitled to. In her latest Amicus podcast titled “And Then There Were Eight,” Slate’s Dahlia Lithwick speaks with Endrew F.’s lawyer about the case.

This Day in Supreme Court History—January 11, 2000

On this day in 2000, United States v. Morrison was argued in front of the Supreme Court. Morrison was a constitutional challenge to a section of the Violence Against Women Act of 1994 (VAWA) that provided a civil remedy for victims of gender-motivated violence by allowing them to sue for damages in federal court. The question for the Court was whether Congress had the authority to enact this provision under either the Commerce Clause or the Fourteenth Amendment.

In 1994, Christy Brzonkala, a Virginia Tech student, became the first person to file a Federal lawsuit under VAWA. Brzonkala initially filed a university complaint against two fellow Virginia Tech students, football players Antonio Morrison and James Crawford, alleging that they sexually assaulted her. After a school hearing, the complaint against Crawford was dropped, while Morrison received a one-year suspension, which was withdrawn shortly before the start of the upcoming football season because school officials found the punishment “unduly harsh.” Brzonkala turned to the courts. After a Virginia grand jury failed to return criminal charges for either Morrison or Crawford in 1996, she filed a federal lawsuit against Morrison, Crawford, and Virginia Tech under the newly enacted VAWA.

Morrison’s lawyers argued that the provision allowing Brzonkala to pursue this federal lawsuit was unconstitutional because Congress lacked the authority to enact such a provision under either the Commerce Clause or the 14th Amendment. The district court agreed and dismissed the suit. Brzonkala appealed, but the Fourth Circuit  affirmed, explaining, “Such a statute, we are constrained to conclude, simply cannot be reconciled with the principles of limited federal government upon which this Nation is founded.”

At oral arguments at the U.S. Supreme Court, the conservative justices pressed Brzonkala’s lawyer, Julie Goldscheid, about the limits of her reading of of the commerce power. “The justification for the statute that you’re now giving us,” Justice Scalia argued, “is a justification that would allow general Federal criminal laws on all subjects because all crime affects interstate commerce.” Morrison’s lawyer, Michael E. Rosman, faced similar slippery slope concerns from the other direction. Justice Breyer wondered whether the more limited view of the commerce power he advocated meant that if “people are in their own houses cooking up biological warfare or it turns out that in their own fireplaces, they pollute the air in a way that will, through global warming, swamp the east coast” then “Congress is powerless to act?”

The Supreme Court issued its decision in Morrison on May 11, 2000. With a 5-4 vote, the justices affirmed the decision and reasoning of the Fourth Circuit, holding the civil remedy unconstitutional under both the Commerce Clause and the 14th Amendment rationales. Chief Justice Rehnquist wrote the majority opinion, in which he rejected the idea that “Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” The commerce power, he explained, “requires a distinction between what is truly national and what is truly local. He also held that the enforcement clause of the Fourteenth Amendment did not give Congress the power to enact the civil remedy provision, since the Fourteenth Amendment regulated constitutional violations by government actors. Morrison was a private citizen, and Justice Rehnquist concluded that there was insufficient evidence that state governments were unconstitutionally discriminating in their enforcement of protection against gender-motivated violence.

Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, wrote the dissent, arguing that Congress had authority under the Commerce Clause to pass the civil remedy provision. He cited congressional findings that “crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved, in interstate commerce.”

While Morrison struck down the civil remedy provision, the body of VAWA remained intact. It provided federal funding for the prosecution of gender-motivated violent crimes, established the Office on Violence Against Women within the Department of Justice, and provided resources for victims of gender-motivated violence, like the National Domestic Violence Hotline. President Obama signed the Violence Against Women Reauthorization Act of 2013 on March 7, 2013, which reaffirmed VAWA and also expanded federal protections and resources apply to LGBT individuals, Native Americans, and immigrants.

This Day In Supreme Court History—January 10, 1984

On this day in 1984, Strickland v. Washington was argued at the Supreme Court. This case considered what it meant for a criminal defendant to have the “effective assistance” of counsel, which the Court had previously ruled the Sixth Amendment required.

David Washington waived his right to a jury trial and pleaded guilty to three murders in a Florida court. The judge sentenced him to death. After unsuccessfully appealing in state courts, he took his claim that he lacked effective assistance of counsel at sentencing to federal court. He lost again in the district court, but the U.S. Court of Appeals for the Fifth Circuit reversed. The Supreme Court then granted certiorari.

At the Supreme Court, Washington’s lawyer, Richard Shapiro, argued that Washington’s defense counsel admitted that he felt helpless upon learning of his client’s murder confessions and this was why he did no independent investigation into his background. The lawyer had no “strategic or tactical choice for this this total lack of investigation,” Shapiro explained to the justices. “When his client’s life was at stake,” this lawyer “could not point … to a single shred of independent evidence that would have advised the judge of a fuller understanding of who David Washington is.”

If Washington’s lawyer had conducted a proper investigation, Shapiro argued, he would have discovered psychiatric and psychological evidence showing “child abuse, deprivation, and neglect as a youth.” When “combined with the extraordinary pressures that were placed on Mr. Washington at the time of the crimes,” this  “led to the severe mental and emotional distress which resulted in his breakdown during that period of time” when the murders took place. A skeptical Justice Rehnquist asked whether a jury would really “buy that.” The defense counsel had failed to present supporting facts, Shapiro responded, and that had the potential to “make the difference.”

Shapiro argued that the Sixth Amendment demanded a test for the adequacy of counsel that was focused on the “impairment of the defense,” rather than the outcome of the case. An outcome determinative test, he argued, “assumes the defendant could have a fair trial with incompetent counsel.” A defense “counsel laboring under a sense of hopelessness,” as Washington’s lawyer was, “ is not the zealous advocate that the Constitution requires and that the sacred professional trust of an attorney requires.” Chief Justice Burger worried that such a standard would “eliminat[e] perhaps two thirds of all the criminal cases that come to trial, at least half.”

Attorney Carolyn Snurkowski argued on behalf of Charles Strickland, the superintendent of Florida state prisons. She laid the blame for the outcome of the trial squarely on Washington. He had acted contrary to the advice of his lawyer by confessing, pleading guilty, and waiving sentencing proceedings. She derisively summarized Washington’s position: “Although I pled guilty, I have no complaints about [my lawyer’s] preparation for trial, although I cut him off at the knees with regard to presenting my case to a jury or to a judge, he was ineffective at the sentencing phase because he did not do certain things.” Snurkowski argued that Washington failed to make a specific allegation about his lawyer’s competency and that he failed to demonstrate that the alleged incompetence led to prejudice or changed the outcome of the case.

On May 14, 1984, the Court ruled, by an 8-1 vote, against Washington. (Justice Marshall dissented.) In her majority opinion, Justice O’Connor held that a court should only find a Sixth Amendment violation for ineffective assistance of counsel in cases where (a) the lawyer’s performance was deficient, meaning that the lawyer failed to meet an “objective standard of reasonableness”; and (b) the deficient performance prejudiced the defense enough to deprive the defendant of a fair trial, which requires that the defendant shows a “reasonable probability” that the result would have been different if the attorney had not erred. The Court found that Washington failed to meet this demanding standard. He would be executed two months later.

The Week Ahead – January 9, 2017

The Court’s first week of hearing arguments after the holidays will be busy. The week’s schedule includes arguments in five cases.
On Monday the Court will first hear Nelson v. Colorado, a case deciding whether the state’s Exoneration Act violates the due process clause of the 14th Amendment. Under the statute, individuals whose convictions have been reversed must prove their innocence by clear and convincing evidence in order to recover the payments they were required to make to the government as a result of those convictions. The petitioners, Shannon Nelson and Louis Alonzo Madden, were convicted in separate trials of unrelated sexual assault offenses, and each assessed fees and restitution the state imposes only upon convicted defendants. Nelson’s conviction was reversed, and the jury her second trial acquitted her on all counts. The trial court ruled that it lacked authority to directly return the $702.10 that her inmate account had been docked, and Nelson appealed. Madden’s conviction was invalidated on post-conviction review. The trial court refunded Madden his fees, but not the $757.75 in restitution he had already paid. The Colorado Court of Appeals ruled in both cases that defendants in their position are entitled to a full refund of any and all monies paid relevant to a conviction that has been vacated. The Colorado Supreme Court reversed in both cases. Chief Justice Nancy Rice held for the majority that no state law authorized trial courts to issue such refunds, and that the civil remedy in the Exoneration Act satisfies whatever due process rights such individuals might have. SCOTUSblog’s Steve Vladeck previews the argument .The New York Times discusses fees imposed by various government entities, including the fees in this case.

Also on Monday the Court will hear Lewis v. Clarke, which presents the issue of whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment. In 2011, William Clarke, who was on the job, working for the Mohegan Tribal Gaming Authority, rear ended Brian and Michelle Lewis on a highway in Connecticut. The gaming authority is an arm of the Mohegan Tribe. Clarke was driving gamblers home from the Mohegan Sun Casino, owned by the tribe. The Lewises sued Clarke in Connecticut court. The Connecticut Supreme Court held that the tribe’s sovereign immunity applied to Clarke, and therefore, the Lewises can sue in a gaming disputes court operated by the tribe, but not in Connecticut state court. The Atlantic discusses the case, and SCOTUSblog has an argument preview here:

On Tuesday the Court will hear another two cases, starting with Expressions Hair Design v. Schneiderman. In this case, the Court will decide whether state no-surcharge laws unconstitutionally restrict speech conveying price information or regulate economic conduct. Merchants, led by Expressions Hair Design, have argued that the New York anti-surcharge statute violates the First Amendment because it prevents businesses from describing any higher price they charge to card users as a “surcharge”. The U.S. Court of Appeals for the Second Circuit concluded that the New York statute does not regulate speech, only conduct. The court held that the statute affected only a “pricing practice,” which does not have First Amendment protections. The petitioners argue that the statute would allow the merchants to charge different prices to card users and customers who pay in cash if they told the cash users they were getting a discount. They argue that the statute prohibits only the true statement that merchants are imposing a “surcharge” for payment by card. The difference between using the term “cash discount” or “card surcharge,” they argue, can affect customers’ responses. By forbidding merchants to use the surcharge label, the statute prevents merchants from using accurate information tin communication with their customers, they argue. Bloomberg provides a summary of the case.

Also on Tuesday the Court will hear arguments in Goodyear Tire & Rubber Co. v. Haeger. The Court will decide whether a federal court must tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct, as well as what such a causation requirement would involve. Leroy, Donna, Barry and Suzanne Haeger were injured when one of the Goodyear G159 tires on their motor home failed while the car was traveling on an Arizona highway. The Haegers sued in 2005. Discovery commenced in federal court, where the case was moved. After settlement, the Haegers moved for discovery sanctions because of Goodyear’s failure to disclose the results of the federally mandated “Heat Rise” test. The district court relied on its inherent power to sanction. The court found that Goodyear and its lawyers had acted in bad faith and ordered the tire company and two of its attorneys to pay more than $2.7 million in attorney’s fees and costs. The district court did not give Goodyear or its lawyers a jury trial before the sanctions. The U. S. Court of Appeals for the Ninth Circuit affirmed. The court of appeals held that the district court did not abuse its discretion in awarding the full amount of litigation fees, even without finding a precise linkage between the acts of bad faith and the Haegers’ trial costs. SCOTUSblog delves into the case.

On Wednesday, the Court will hear Endrew F. v. Douglas County School District, which presents the issue of what level of educational benefit school districts must confer on children with disabilities to satisfy the Individuals with Disabilities Education Act. Endrew F. (also known as Drew), is an autistic student who attended Douglas County School District in Colorado from preschool through fourth grade under an Individualized Education Program. His parents disagreed with school officials about the IEP proposed for him for fifth grade, so they enrolled him in a private school, where he has, according to them, “made academic, social, and behavioral progress.” Drew and his parents filed a complaint with the state’s department of education. They claimed the district had denied Drew a FAPE (“free, appropriate public education”) as the Act guarantees, and sought reimbursement for the tuition they had paid to the private school. A hearing officer ruled for the school district, finding that Drew had progressed in the district. Drew and his parents then sued in federal district court, which also ruled in favor of the school district. The U.S. Court of Appeals for the 10th Circuit upheld that ruling. It said that the school district needed to try to provide Drew with an educational benefit that was “merely more than de minimis.” Drew’s proposed IEP was “substantively adequate” under that test, the court concluded. The Denver Post says this could be a landmark case for students with disabilities throughout the nation. Amy Howe of SCOTUSblog also discusses what “appropriate” educational benefit means with regard to FAPE.

The Court will meet in Conference on Friday both to discuss argued cases from the week and to rule on pending petitions for certiorari.

Weekly Roundup – January 7, 2017

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

The Supreme Court held its first Conference of the new year on Friday, January 6, and orders are expected to be released on Monday morning. The Court appeared in this past week’s news in other ways, however. Amy Howe of SCOTUSblog reported that Merrick Garland’s nomination had officially expired on January 3rd. Judge Garland will continue to serve on the D.C Circuit, but the expiration of this SCOTUS nomination leads the way for President-elect Trump to nominate the next Justice once he takes office. Bridget Bowman of Roll Call reported that the new Senate Minority Leader, Chuck Schumer stated this week that he is prepared to block Trump’s nominee to the Court if he or she is not “mainstream.” Currently, Trump needs the support of at least 8 Democrats to fill the vacant seat, as 60 votes are needed to end the filibuster to a nomination and fill the seat, and Republicans only hold 52 seats. The Republican-controlled Senate, however, could eliminate the filibuster for Supreme Court nominees, as the Democrats did for executive-branch nominees and lower court judges when they controlled the Senate in 2013. Schumer made clear that he will use any leverage he has to block Trump’s nominee, and stated “We are not going to make it easy for them to pick a Supreme Court justice.”

Politico reported on Tuesday that President-elect Trump’s short list of picks for the next justice has narrowed to a half-dozen, and he and his advisors are considering nominees for a second appointment. Appointing the next Supreme Court Justice is apparently one of the first acts that Trump wants to complete after he takes office. Politico reported that 7th Circuit federal appeals court Judge Diane Sykes and 11th Circuit Judge William Pryor are two of the most discussed names to take the place of the late Antonin Scalia. Trump has reportedly told his advisors that he wants to pick someone who is not “weak” and has sought advice from a variety of personalities, including Fox News legal analyst Judge Andrew Napolitano, Ted Cruz, Rick Santorum, and Senator Mike Lee.

Wrapping up 2016, Chief Justice John Roberts released his year-end report on the federal judiciary. Amy Howe of SCOTUSblog reported that Justice Roberts focused the report on the “crucial role” that federal district judges play in the federal court system. He also noted recent changes made to federal civil court rules that give more control to district judges in early management of cases, and included statistics on the workload of the federal courts. In a New York Times piece entitled What the Chief Justice Should Have Said, Linda Greenhouse criticized the report for failing to address the Supreme Court vacancy that will soon reach its one-year anniversary.

This Day in Supreme Court History— January 6, 1964

On this day in 1964, one of the Supreme Court’s most significant First Amendment cases, New York Times v. Sullivan, was argued.

The case began on March 29, 1960, when a group of civil rights activists ran a full-page fundraising advertisement in the New York Times. Martin Luther King Jr. was facing a trial in Alabama court on charges of tax evasion and perjury, and the advertisement solicited donations to help fund his legal defense. Titled “Heed Their Rising Voices,” the advertisement accused Alabama of prosecuting King in retribution for his civil rights activism. “Their strategy is to behead this affirmative movement and thus to demoralize Negro Americans and weaken their will to struggle,” it declared.

The advertisement also included descriptions of white southern officials repressing the student lunch counter sit-in movement that was then spreading across the South. Among the accusations was that, following a civil rights protest in Montgomery, “truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus” and then the students’ “dining hall was padlocked in an attempt to starve them into submission.”

Although never mentioned by name, Montgomery city commissioner L.B. Sullivan filed a libel suit against the New York Times and four black Alabama ministers whose names were among those listed as signatories to the advertisement. Sullivan argued the advertisement defamed his reputation and that various factual errors in the advertisement—the police never surrounded the campus or padlocked the dining hall, for example—prevented the defendants from claiming truth as their defense. Sullivan won a $500,000 judgment at trial, which the Alabama Supreme Court subsequently upheld.

At the Supreme Court, Montgomery attorney M. Roland Nachman Jr. represented Sullivan. Nachman highlighted the numerous vague referents in the advertisement, many of which, he insisted, could have been understood to be pointing toward Sullivan as responsible for oppressive acts that had not actually taken place. He also noted that the newspaper had neglected to follow its own advertising vetting standards. Furthermore, Nachman argued that no court had ever made a distinction between libel of a private person and libel of a public official—which was basically what the Times was demanding.

Columbia law professor Herbert Wechsler represented the New York Times. He insisted that nothing in the ad necessarily pointed to Sullivan as being responsible for the police department’s actions, that the instructions given to the jury were too vague, and that the First Amendment required the press be protected against suits such as this, which was intended to silence political criticism.
On March 9, 1964, the Supreme Court ruled, 9-0, in favor of the New York Times. In his opinion for the Court, Justice Brennan wrote that a public official may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This was the first time that the Court invoked the First Amendment to check libel actions.

“Another milestone in the long fight for freedom of the press and freedom of speech has been set up by a unanimous decision of the United States Supreme Court,” praised the Chicago Tribune editorial board, which was generally critical of the Warren Court’s doctrinal innovations. “The effect of the decision is to reaffirm the constitutional right of every citizen to criticize the government and officials of government.”

This Day In Supreme Court History—December 8, 1902

On this day in 1902, Justice Oliver Wendell Holmes Jr. was sworn in as an Associate Justice of the U.S. Supreme Court.

The seat Holmes would occupy for the next thirty years opened up when Justice Horace Gray informed Roosevelt on July 9, 1902, that he was retiring. Roosevelt immediately wrote his close friend Henry Cabot Lodge, Senator from Massachusetts, to discuss nominating Holmes, who was then the Chief Justice on the Massachusetts Supreme Judicial Court. Holmes,  wrote Roosevelt,  “has been the most gallant soldier, a most able and upright public servant, and in public and private life alike a citizen whom we like to think of as typical of the American character at its best.” Roosevelt also hinted that he favored Holmes because he believed he shared the President’s views on American imperial policy in Puerto Rico and the Philippines. “Judge Holmes’ mental attitude …  is such that should naturally expect him to be in favor of those principles in which I so earnestly believe,” Roosevelt explained to Lodge. “Judge Gray has been one of the most valuable members of the Court. I should hold myself as having been guilty of an irreparable wrong to the nation if I should put in his place any man who was not absolutely sane and sound on the great national policies for which we stand in public life.”

In accepting Gray’s resignation, Roosevelt saluted Gray (who, like Holmes, was a native of Massachusetts and had served on that state’s  Supreme Judicial Court prior to his appointment to the U.S. Supreme Court) for his years of service and asked him postpone his retirement until a successor has been appointed. He concluded the letter with a flattering postscript: “The sentence I am about to write I suppose must not be made public because it might mistakenly be held to imply that I had anticipated a change in the Chief Justiceship! If through any accident to my good friend, the Chief Justice, there had been such a vacancy, it had been my intention to appoint you to it.” (Roosevelt’s flattery was misguided in this case: Gray’s resignation was brought on by grave illness; he would die just two months later.)

Roosevelt then wrote to the other U.S. Senator from Massachusetts, George Frisbie Hoar, who was the chairman of the Bar Committee of the Senate (what we now call the Senate Judiciary Committee). The President informed Hoar of his intention to appoint Holmes, but he explained that he would not make the appointment official until speaking with Hoar. The Senator felt slighted. “If the matter be decided, I do not understand what you expect or desire to hear from me,” he wrote. “As a Massachusetts lawyer, as the Senior Senator from the New England Circuit, and as Chairman of the Bar Committee of the Senate, I naturally feel great interest in the appointment of a Judge of the Supreme Court of the United States from my own Circuit and my own state. There is no doubt of the absolute right of The President to make such appointment on such advice as he chooses to take, or without advice, if he prefer.”

Roosevelt then sought to clarify his intentions. “I wrote to you, of course, so that if there was any reason why Holmes should not be appointed in our judgement, you would tell me.” Roosevelt explained that his appointment of Holmes was motivated by his goals of locating a nominee with the requisite professional prestige and ensuing there remains a justice from Massachusetts on the bench. “Equally, of course, my statement that I would make the appointment did not mean that I would make it if I was shown that such reason existed. I did not phrase my letter as carefully as if it was an ordinary appointment, simply because Homes being chief justice in the State, and having the reputation he has, I suppose it was a rather formal matter. But if there is the slightest reason against his appointment I of course wish to know it. Ever since Judge Gray’s sickness I have been looking over the field as carefully as I could in Massachusetts, as I wish to fill the place from that state, if possible.”

On August 11, Roosevelt wrote Hoar once again regarding Holmes’ appointment. He was moving ahead on the matter, he explained. “It would now be an idle formality for me to consult the public at large about Holmes – whatever it might have been well to do at the beginning – and so I shall announce his appointment.”

On that same day, President Theodore Roosevelt gave Holmes a recess appointment to the Court. Holmes, however, chose not to begin serving on the Court until the Senate confirmed his appointment, which it did on December 2.

Six days later, on December 8, 1902, Oliver Wendell Holmes Jr. was sworn in.