Weekly Roundup – April 17, 2015

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The Mormon Church, joined by several other religious organizations, has filed an amicus brief asking the Supreme Court not to recognize same-sex marriage as a constitutional right.

At SCOTUSblog, Michael Klarman provides an in-depth look at the history of the same-sex marriage movement and the evolution of constitutional law.

Chief Justice John Roberts and Justice Anthony Kennedy—the supreme rivalry that runs America?

In the New Yorker, Lincoln Caplan analyzes the history of the Court and the death penalty and argues that the Court is in a position to abolish it in an upcoming case.

A slightly imposing citizen showed up for jury duty in a Maryland court on Wednesday—that citizen being Chief Justice Roberts.

Since her retirement from the Court, former justice Sandra Day O’Connor has been working on what she calls her real legacy—a series of educational computer games known as iCivics, meant to teach children about civics, government, and the Constitution.

In The New York Times, Linda Greenhouse considers Justice John Paul Stevens’s legacy.

Justice Ruth Bader Ginsburg earns a spot on Time’s list of the 100 Most Influential People, with a profile written by Justice Antonin Scalia.

Weekly Roundup – April 10, 2015

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The Supreme Court will not hear an appeal from Alan Gross, a former U.S. government subcontractor who was imprisoned in Cuba for five years and is now seeking to sue the government for negligence.

Citing a violation of his Sixth Amendment right to counsel, George Huguely, who was convicted of second-degree murder, will take his case to the Supreme Court after his appeal was denied in Virginia.

In an address on Wednesday, President Obama commented on the King v. Burwell case, stating that it could be the “last gasp” of opponents fighting his health care legislation. He also urged the Court to consider the positive effect the legislation has had on the uninsured.

Adam Liptak reports on amicus briefs in the upcoming same-sex marriage case, submitted by both sides in the debate, asking the Court to consider the issue in light of laws from other countries. Liptak points out that the briefs are addressed mostly to one reader in particular—Justice Kennedy, who often cites to foreign law in his opinions.

Richard Socarides writes for The New Yorker on the coming Court ruling in the same-sex marriage case.

USA Today previews the upcoming Court case on lethal injection and highlights recent developments that point to a movement away from the death penalty in America.

Does U.S. law allow foreigners the right to sue companies under U.S. jurisdiction, even if the crimes committed occurred only partially within U.S. territory? The Court has the opportunity to take up the question next Friday as it considers a case involving the U.S. fruit company Chiquita, which has been convicted of sponsoring terrorism in Colombia.

Weekly Roundup – April 3, 2015

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The Court ruled unanimously on Monday that the government’s use of a GPS tracking device on a person is a form of search and seizure, and thus a violation of the Fourth Amendment.

In a 5-4 decision on Tuesday, the Court ruled against developmental disability providers in Idaho, arguing that private companies cannot force Medicaid programs to raise reimbursement rates.

Should royalty fees go to a patent’s inventor even after that patent has expired? The Court appeared reluctant to go that route, which would overturn 50 years of precedent, in Tuesday’s Kimble v. Marvel.

In The New York Times, columnist Linda Greenhouse looks at the Supreme Court’s recent actions regarding the death penalty.

Fifteen states, including eight that allow same-sex marriage, filed a brief on Thursday urging the Court to uphold same-sex marriage bans.

Mary Bonauto, the attorney who won the nation’s first gay marriage lawsuit, will represent 35 petitioners from multiple states in the same-sex marriage case the Supreme Court will hear this month.

Passionate dissenting opinions can feel good in the moment, but they might also have a major, unintended consequence, according to Bloomberg’s Kimberly Ronbinson: bringing about the very thing the author is dissenting against.

NPR recounts the story of Maria Altmann, who fought her way to the Supreme Court in an effort to recover a Gustav Klimt painting of her aunt, which had been confiscated by the Nazis during World War II.

Predicting the Winners in Harris v. Viegelahn and Bullard v. Blue Hills Bank

The Supreme Court heard two bankruptcy cases on Wednesday. The first case, Harris v. Viegelahn, asks whether, when a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, undistributed funds held by the Chapter 13 trustee are refunded to the debtor (as the Third Circuit held in In re Michael), or distributed to creditors (as the Fifth Circuit held below).

Figure 1.

Slide1

As Figure 1 shows, the total question count favors the Respondent (Viegelahn), who received 12 fewer questions than the Petitioner (Harris).  The question count by Justice also favors the Respondent. Four Justices asked the Respondent fewer questions (Roberts, Scalia, Kennedy, Ginsburg).  Only two Justices asked the Petitioner fewer questions (Sotomayor and Kagan).  Justice Breyer asked each side the same number of questions.  Justices Alito and Thomas asked no questions.  Based on the question counts, I predict a victory for the Respondent (Viegelahn).

The second case, Bullard v. Blue HIlls Bank, asks whether an order denying confirmation of a bankruptcy plan is appealable.

Figure 2.

Slide2

As Figure 2 shows, the total question count favors the Respondent (Blue Hills Bank), which received 25 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Petitioner’s side had two attorneys arguing (which might inflate the question count somewhat), even the 12 question differential between just the Petitioner and the Respondent is significant (especially considering that Petitioner had 10 minutes less for oral argument).   The question count by Justice also favors the Respondent.  Five Justices asked the Respondent fewer questions (Roberts, Kennedy, Ginsburg, Breyer, Sotomayor).  Based on these numbers, I predict a victory for the Respondent (Blue Hills Bank).

Predicting the Winners in Commil v. Cisco and Kimble v. Marvel

The Supreme Court heard two oral arguments in patent cases on Tuesday.   I’m predicting the winners based on the method of counting up the number of questions.

The first case, Commil USA v. Cisco Systems, asks whether the Federal Circuit erred in holding that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b).  Justice Breyer was recused.

Figure 1.

Slide1

As Figure 1 indicates, the total question count favors the Respondent (Cisco), which received 17 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Court might be inclined to ask both attorneys on the Petitioner’s side the same or similar questions (thus inflating the number of questions for the Petitioner’s side), I will go with a victory for the Respondent. It would be a rare recent affirmance of the Federal Circuit.

The second case, Kimble v. Marvel Enterprises, asks whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”

Slide2

As Figure 2 indicates, the total question count favors the Respondent (Marvel Enterprises), whose side (along with the Solicitor General supporting Respondent) received 8 fewer questions than the Petitioner.

The question count by Justice is more mixed.  Four Justices asked the Respondent’s side (with SG) more questions, but the margins were not great: Roberts (+5), Scalia (+2), Kennedy (+1), and Sotomayor (+1).  Three Justices asked the Petitioner’s side more questions: Ginsburg (+1), Breyer (+7), and Kagan (+11).  Justices Alito and Thomas asked no questions.

Even though the question count by Justice favors slightly the Petitioner, I predict a victory for the Respondent based on the total question count.

 

Predicting the Winner in Brumfield v. Cain

The Supreme Court held only one oral argument on Monday.   I’m predicting the winners based on the method of counting up the number of questions.  After a very successful start of the Term (7 of 9 correct in the first month), my prediction percentage has slipped considerably to 52%,  so you should take everything with a grain of salt.

The case Brumfield v. Cain asks (1) whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Slide1

As Figure 1 indicates, the total question count favors the Respondent (Cain).  The Court asked the Respondent 12 fewer questions: 47 questions total compared to 59 questions to the Petitioner (Brumfield).   It’s a modest differential, but still a significant one compared to many of the other cases.

The question count by individual Justice also favors the Respondent.  Five Justices asked the Petitioner more questions: Roberts (+4), Scalia (+1), Kennedy (+8), Sotomayor (+3), and Alito (+6).  Three Justices asked the Respondent more questions: Ginsburg (+3), Breyer (+4), and Kagan (+4).  The numbers suggest alignments along ideological lines.  Even if Justice Sotomayor sides with the other liberal Justices, the conservative Justices appear to have enough for a majority.

Based on these numbers, I’ll predict a victory for the Respondent.

Weekly Roundup – March 27, 2015

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In a congressional hearing on Monday, Justices Breyer and Kennedy criticized the state of the American corrections system and urged Congress to improve it.

Alabama became the third state to halt its executions until after the Supreme Court rules on lethal injection later this year.

The Court considered the issue of violent confrontations between law enforcement and the mentally ill in Monday’s San Francisco v. Sheehan.

The justices seemed skeptical toward a claim that the First Amendment prevents states from regulating the content of vanity license plate logos.

In 2012, the Court ruled that sentencing juveniles to life without parole was unconstitutional. The Court will now consider whether juveniles sentenced under the old laws should be re-sentenced.

The Court rejected Alabama’s racially charged gerrymandering plan in a 5-4 vote led by Justice Breyer.

The justices appeared closely divided in Wednesday’s oral arguments on the legality of new EPA regulations on toxic emissions.

Peggy Young, the UPS worker who alleged workplace discrimination due to her pregnancy, has been given another chance to prove her case in a lower court with the Supreme Court’s decision on Wednesday.

Predicting the Winners in Bank of America Cases

On Tuesday, the Supreme Court heard oral argument in two consolidated cases related to the treatment of underwater mortgages in bankruptcy.  I’m predicting the winners based on the method of counting up the number of questions.

Bank of America NA v. Caulkett asks “whether, under Section 506(d) of the Bankruptcy Code, which provides that ‘[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,’ a Chapter 7 debtor may ‘strip off’ a junior mortgage lien in its entirety when the outstanding debt owed to a senior lien-holder exceeds the current value of the collateral.”

Figure 1.

3.24.15 blog post chart

As Figure 1 indicates, the total question count was very close. The Petitioner (Bank of America) was asked 40 questions, while the Respondents were asked 43 questions.  That’s a small differential.

The question count by Justice was also very close.  Three Justices asked the Petitioner more questions: Justices Scalia (+6), Kennedy (+2), and Ginsburg (+3).  Three Justices asked the Respondent more questions: Justices Breyer (+8), Sotomayor (+4), and Kagan (+2). Chief Justice Roberts asked the same number of questions (2), as did Justice Alito (1).

It’s a toss-up.  But I’ll go with the Respondents, given the possible conservative alignment. It’s just a hunch–the numbers are too close to call.

 

Predicting the Winners in Walker v. Sons of Confederate Veterans; SF v. Sheehan

The Supreme Court heard oral argument two cases on Monday.  I’m predicting the winners based on the method of counting up the number of questions.  Both of today’s cases are difficult to predict based on the question count.

The first case is an important First Amendment case, Walker v. Texas Division, Sons of Confederate Veterans, which asks (1) whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

Figure 1.

Slide1

As Figure 1 shows, the total question count slightly favors the Petitioner (Texas SG), which received 5 fewer questions than Respondent (Sons of Confederate Veterans).

The question count by individual Justice presents a mixed picture, however.  Chief Justice Roberts and Justice Kagan asked the Petitioner 6 more questions–which suggests they are leaning to the Respondent.  Justices Ginsburg and Sotomayor asked the Respondent 6 more questions–which suggests they are leaning to the Petitioner.  Justice Kennedy also asked the Respondent 3 more questions, but he’s been less predictable based on his question count.  Justice Breyer asked the Respondent 2 more questions, a small differential.

Meanwhile, Justices Scalia and Alito asked both sides the same number of questions (11 and 5 questions, respectively).  Given these numbers, I think the case is tough to call based on simply the question count.  But my guess would be that Justices Scalia and Alito join Roberts and Kagan, who appear to be leaning to the Respondent’s side, which argued for affirmance of the Fifth Circuit’s decision holding that Texas’s denial of vanity license plates for Respondent’s Confederate flag violated the First Amendment.  I will give the edge to the Respondent.

The second case, San Francisco v. Sheehan, asks “(1) whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and (2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.”

This case is difficult to predict for several reasons.  First, it is an asymmetrical case with the Petitioner, the Respondent, and the Solicitor General arguing as amicus for vacatur in part and reversal in part.  Because the SG is allotted only 10 minutes, one cannot do a simple comparison of the three attorneys’ question counts.  Second, Justice Breyer recused, so only 8 Justices will be deciding the case.

Figure 2.

Slide2

As Figure 2 shows, the Respondent (Sheehan) received 49 questions, while the Petitioner (San Francisco) received 39 questions.  This count favors the Petitioner.   The SG did not side with the Petitioner, but the SG’s position of partial reversal and vacatur is more favorable to the Petitioner.

The question count by individual Justice also slightly favors the Petitioner’s side.  Only Justice Scalia asked the Petitioner more questions.  Chief Justice Roberts and Justices Kennedy and Thomas asked no questions to the Petitioner, whereas 7 of the 8 Justices asked questions to the Respondent.  Justices Ginsburg, Alito, and Kagan asked the Petitioner fewer questions than the Respondent by small margins (1, 1, and 3 respectively).  Justice Sotomayor asked both sides the same number of questions.

Based on these numbers, I will go with a reversal or vacatur of the decision below.  It’s too difficult to tell simply based on the question count whether the Court will favor the Petitioner’s or SG’s position, so I will leave it as reversal of some kind.

Weekly Roundup – March 20, 2015

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The world of Justice Sonia Sotomayor: a look at the justice’s autobiography.

There is still one question left to settle before next month’s same-sex marriage case at the Supreme Court—who will get to argue the case?

In The New York Times, Professor William Baude asks whether Obama could bypass the Court if the president’s health care plan is overruled. In the Chicago Tribune, Professor Noah Feldman answers with a resounding no.

As the justices decide whether to address Wisconsin’s voter ID law, Linda Greenhouse argues that the Supreme Court suffers from an identity crisis on voting rights.

This week, the Court also considered taking a case seeking to lower vaccine court standards—making it easier for people injured by vaccines to win compensation from the government.

Can states control the messages that appear on specialty license plates? That depends on if the “voice of the license plate” belongs to the government or the motorist, a question the Supreme Court will consider next week.