Hovercrafts & Uranium: Oral Argument Roundup for November 5, 2018

On Monday, November 5, 2018, the Supreme Court heard oral arguments in two cases: Sturgeon v. Frost and Virginia Uranium, Inc. v. Warren.

Sturgeon v. Frost

In Sturgeon, the Court faced the question of whether the National Park Service (NPS) can prohibit the use of hovercrafts on public waterways. John Sturgeon, an Alaskan moose hunter, has been fighting the NPS for years, filing lawsuits and appeals seeking to gain permission to operate his hovercraft over the Nation River in the Yukon-Charley National Preserve conservation unit. Alaska says he can; the NPS says he can’t. The case hinges on the Alaska National Interest Lands Conservation Act, which says Alaskan Native and private land are not subject to federal “regulations applicable solely to public lands.” Specifically, the question is the meaning in this provision of “public lands.”

At oral argument, Sturgeon’s lawyer, Matthew T. Findley, argued that the law exempted a waterway such as the Nation River from the regulatory control of the NPS. Justice Alito said he “burned up an awful lot of gray cells trying to put together the pieces of this statute.” Justice Sotomayor wondered how the Court could interpret the meaning of “public lands” differently in multiple sections of the statute. “I’m struggling with this,” confessed Justice Kagan.

SCOTUSblog has a full summary of oral arguments here.

This “little case” may have big consequences, noted Matthew J. Sanders in the ABA newsletter Trends last year. Sturgeon may come to define the nature and reach of the federal government’s authority over waters in and beyond Alaska.”

Virginia Uranium, Inc. v. Warren

The Court also heard oral arguments in Virginia Uranium, Inc., involving a jurisdictional question regarding the safe handling of radioactive material. Specifically, the issue is whether the federal Atomic Energy Act (AEA) preempts a Virginia state law regulating radioactive material within its jurisdiction.

In the early 1980s, in response to the nuclear disaster in 1979 at  Three Mile Island, Virginia passed a law banning the mining of uranium within the state. The law had a sunset clause that went into effect a year after its enactment. In 1983, the Virginia legislature renewed the law indefinitely. Virginia Uranium, Inc. saw the potential in one of the largest untapped uranium deposits in the country (roughly $7 billion as of 2011), and wants to mine the prospect but is prevented from doing so by this state law.

The case hinges on Virginia’s reasoning behind its prohibition of mining uranium. Laws involving improper extraction and storage of materials are regulated by federal law, namely the AEA, which designates the Nuclear Regulatory Commission (NRC) as responsible for this issue.

As Justice Kagan noted at oral argument, because the legislative history shows that the Virginia law was in response to safety concerns, it is more vulnerable to preemption than state bans on mining motivated for other reasons.

“Suppose Virginia had said, ‘We think that the extraction is a dangerous activity, so we are justifying this ban on mining to protect the workers from the hazards associated with mining,’” Justice Ginsburg asked the attorney arguing the case for Virginia Uranium, Charles J. Cooper. Cooper responded that the company would lose if that were the case.  

Solicitor General Noel J. Francisco warned that if the Court allowed a ban on mining for reasons besides concerns for extraction and storage, the Court would be “giving state and local governments a road map for undermining a multibillion-dollar industry.”

SCOTUSblog has a full summary of oral arguments here.


This Post was Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Conference Report: November 2 Conference

At its November 2 Conference, the Supreme Court granted certiorari in six cases. Two of the cases, which have been consolidated, involve challenges to a cross on public land. Those cases were brought by the American Humanist Association against the American Legion and the Maryland-National Capital Park and Planning Commission. In a 2-1 decision, he Fourth Circuit held that the large cross, a 93-year-old World War I memorial, excessively entangled the government with religion and so violated the Establishment Clause. More information about the case is available in this Washington Post article.

The Court also granted certiorari in Flowers v. Mississippi. In Flowers, the defendant stood trial six times on the same charges due to three judgments being reversed because of prosecutorial misconduct and the two other trials ending in hung juries. In three of the earlier trials, the prosecutor used peremptory challenges to strike African-Americans. In one of those cases, the trial judge disallowed one of those challenges as racially motivated, and in another, the Mississippi Supreme Court reversed the conviction as violating Baston v. Kentucky, which held that excluding jurors due to their race is unconstitutional. In the last trial, Flowers was convicted and sentenced to death by a jury made up of eleven whites and one African-American. Flowers alleged that the prosecutor again violated Batson, but the Mississippi Supreme Court held otherwise in a 6-3 decision. After the Supreme Court decided Foster v. Chatman, a 2016 case involving race-based jury exclusions, it remanded Flowers to the Mississippi Supreme Court to reconsider its decision in light of Foster. That court issued a substantially similar majority opinion, and Flowers has again asked the Supreme Court to review, in part due to the Mississippi court’s failure to consider the prosecutor’s past history of adjudicated purposeful race discrimination in striking minority prospective jurors.

The other cases granted certiorari on November 2 can be viewed here, and SCOTUSblog discusses them here.

Among the cases in which the Supreme Court denied certiorari was Smith v. Clinton, which gained much media attention, including this Politico article from May of 2017. Patricia Smith and Charles Woods brought this action together against former Secretary of State Hillary Clinton. They claimed that due to Clinton’s use of the private email server, which was later hacked, their sons Sean Smith and Tyrone Woods died because it revealed their location to terrorists who took their lives in Benghazi in September 2012. The plaintiffs also had defamation claims. The district court dismissed the case, and the D.C. Circuit affirmed. The Supreme Court will not hear the case, so the lower court ruling stands.

Other cases that were denied certiorari were a group of linked cases against the Federal Communications Commission (FCC) challenging the Obama-era net neutrality rules. Although the FCC has since changed the rules, it agreed with the plaintiff communications company that the D.C. Circuit’s decision upholding the rules should be vacated as moot. The Court disagreed, simply denying the petition. Justice Thomas, Alito, and Gorsuch, would have granted the request for vacatur. Chief Justice Roberts and Justice Kavanaugh were both recused. More information can be found in this NPR story. The other cases denied certiorari on November 5 can be viewed here.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

October 31 Oral Argument Report

On October 31, the Court heard arguments in Frank v. Gaos. The case presents the issue of whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and complies with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.” The doctrine of cy pres (from a French phrase for “as close as possible”) allows courts to interpret wills or charitable gifts to fulfill the giver’s intention as closely as possible when they are unable to implement the terms precisely. Ted Frank, an attorney, is challenging an $8.5 million settlement of a class action against Google, which alleged that Google had violated its users’ privacy. About $5 million of the settlement went to groups that work on privacy-related issues and the plaintiffs’ lawyers’ alma maters.

Frank argued that because the class members were not the primary beneficiaries of the settlement, the settlement was neither fair nor reasonable and therefore violated Rule 23. The settlement was particularly abusive, he argued, because it was feasible to distribute the money to class members, but instead the class’s counsel agreed to direct the money from the settlement elsewhere. Class members are capable of donating their money to charity themselves if they so wish, instead of having their lawyers do so, he noted. Jeffrey Wall argued for the United States, a non-party, and stated the plaintiffs lacked standing when the district court entered the judgment and that lower federal courts should enforce limits on fee proportionality so those limits are not reduced to “paper tigers.” Attorney Andrew Pincus argued on behalf of Google that nothing in Rule 23 or the Rules Enabling Act strictly prohibits settlements in which the money goes only to third parties. Pincus agreed with the government that there is a “serious question about whether this action was ever properly in federal court.”  Jeffrey Lamken argued on behalf of the respondents (the plaintiffs against Google) that Rule 23(e)’s fairness standard is better met when courts give large amounts of the settlement money to institutions for particular uses than when courts give small amounts close to zero to individual class members. Lamken argued that it is “critical” that the class members’ lawyers, not Google’s lawyers, determined the recipients.

For more commentary on this case, check out The New York Times and MarketWatch.   

On the same day, the Court heard arguments in Jam v. International Finance Corporation. The case presents the question of whether the International Organizations Immunities Act (IOIA), which gives international organizations the “same immunity” from lawsuits that foreign governments have, confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act (FSIA).

International Finance Corporation loans money to private businesses for projects in developing countries. In 2008, the IFC loaned $450 million to Coastal Gujarat Power Limited to partially fund the construction of a power plant in India. The plaintiffs/petitioners are mostly farmers and fishermen whom the plant has harmed.

Jeffrey Fisher argued on behalf of the petitioners that the IOIA’s plain text, structure and drafting history clearly give international organizations the same immunity as the FSIA. Fisher argued that the IOIA incorporates the immunity of the FSIA as of the moment of the filing of the lawsuit against the IFC, not the level of immunity that was applicable when Congress enacted the statute in 1945.  Assistant to the Solicitor General Jonathan Ellis argued on behalf of the United States, a nonparty. Ellis argued that the IOIA “provides a whole host of immunities” by setting “a fixed rule of immunity” and by setting the immunity by reference to foreign governments.” Donald Verrilli argued on behalf of the IFC that Congress enacted IOIA to fulfill the obligations imposed by treaties which commit the courts to give “virtually absolute immunity” to international organizations, a step beyond the immunity given to foreign states.


[Disclosure: Chicago-Kent College of Law’s Center for Information, Society and Policy is one of the designated cy pres recipients at issue in Frank v. Gaos, as reported here.)

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.


Oral Argument October 30: Ineffective Assistance of Counsel

On October 30, the Supreme Court heard oral arguments in Garza v. Idaho, a case involving a criminal defendant’s claim of ineffective assistance of counsel. Garza argues that his lawyer was ineffective because he failed to file an appeal when Garza had requested that he do so. Garza’s lawyer counters that he did not file the appeal because Garza had take a plea agreement that waived his right to appeal.

At oral argument, Justice Kavanaugh probed the lawyer now representing Garza about the significance of the waiver. “An appeal waiver never precludes any and all possible appeals?” he asked. “That is what is undisputed on this record,” responded the attorney. Garza’s criminal defense lawyer, he argued, “usurp[ed] his client’s decision to appeal.” The courts should  “not to allow an attorney to override his client’s autonomous decision to appeal.”

The waiver is relevant, the attorney representing Idaho allowed. But in post-conviction cases where the conduct of counsel is at issue, the Court should look at the totality of the circumstances, he insisted. “And in this case, the totality includes the waiver. The totality includes the specific instruction of the client. The totality includes the scope of the waiver and counsel’s determination that his client was specifically asking him to seek an appeal that would address an issue within the scope.”

Justice Sotomayor asked whether Idaho’s position ran afoul of Roe v. Flores-Ortega, in which the Court held that when a lawyer failed to file an appeal as directed by the client, it is presumed that that failure prejudiced the outcome of the proceeding against the defendant—a requirement for an ineffective assistance of counsel suit. According to Flores-Ortega, Justice Sotomayor argued, “If the defendant doesn’t ask you for [an appeal], you don’t have to consult. But, once he asks you for one, you have to file a notice of appeal.”

Although noting that some of the justices, including the newest justice, Brett Kavanaugh, expressed  skepticism toward Garza’s claim, SCOTUSBlog predicted, based on oral argument, that Garza would likely prevail in the end.

More on Garza can be found at Courthouse News, the CATO Institute, and the Legal Information Institute. A  transcript of the arguments can be found here.

On the same day, the Court also heard arguments in Washington Department of Licensing v. Cougar Den, Inc., a case involving the Yakama Nation Treaty of 1855 and taxes. Check out Jurist for more information on this case.   

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt .

News Roundup: Week of October 29, 2018

In addition to the Supreme Court’s latest session of oral arguments and its announcement that it had granted certiorari in some new cases (see here), there was other news as well last week.

Term Limits for the Court

The Hill’s Lydia Wheeler wrote in an article this week about a new poll conducted by Fix the Court (FTC), an organization devoted to promoting policies for reforming the Supreme Court, which found that 78% of Americans support term limits for all Supreme Court Justices.

At a Georgetown Law Center event last week, Justice Kagan made a comment about the slew of proposals: “I think what those proposals are trying to do is take some of the high stakes out of the confirmation process and certainly to the extent that that worked and people could feel as though no single confirmation was going to be a life or death issue that that would be a good thing[.]”

Justice Sandra Day O’Connor

The first female Associate Justice of the Supreme Court, Sandra Day O’Connor, announced last week that she would be retiring from public life, reports NPR’s Nina Totenberg, due to a diagnosis of dementia, possibly related to Alzheimer’s disease. After retiring from the Supreme Court in 2006, Justice O’Connor, like many of her colleagues, remained active in retirement. O’Connor promoted civic engagement and civic education by founding the organization, iCivics. You can read more about Justice O’Connor’s announcements and reactions to it here.

You can also read a letter written by a mentee of Justice O’Connor, Kim Azzarelli, who is co-founder of Seneca Women and a member of the advisory board of the Women in Alzheimer’s Research Fund at University of California, San Francisco. She reports that Justice O’Connor advised her “on everything from how to fix Washington (less politics, more human relationships) to what to wear when I traveled (black pants, always). But two lessons I learned from her stand out above all. One was that a woman’s lens is critical to all areas of public life. The second was the importance of using one’s power for purpose.”

O’Connor’s public announcement of retirement was not the only news to captivate Supreme Court enthusiasts. Recent reporting discovered that a young William Rehnquist proposed marriage to a young woman named Sandra Day. While the two were attending law school at Stanford, they dated and developed a close friendship, which led Rehnquist to propose via letter after he left a semester early to clerk on the Supreme Court.

Spoiler alert: she turned him down. However, the two remained close friends throughout the years—leading Rehnquist to advocate for O’Connor’s appointment to the Supreme Court by President Ronald Reagan. It’s not too often the general public gets an in in-depth scoop into the personal lives of the Justices.

In Case You Missed It…

Great analysis piece by Co-Director of ISCOTUS Professor Schmidt on the aftermath of the Kavanaugh hearings and the political nature of the Supreme Court. Read it here.

Trump and the 14th Amendment

Last week, President Donald Trump told Axios correspondents Jonathan Swan and Stef W. Kight during an interview, which will air Sunday night on HBO, that he would consider a plan to end birthright citizenship. See here for ISCOTUSnow’s analysis of the issue.

Written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Weekly Preview: Week of November 5, 2018

Nov 5 Weekly Preview

           On Monday November 5, 2018, the Court will release orders and hear arguments in two cases having to do with a clash between state law and federal law. In Sturgeon v. Frost, the Court is being asked to decide whether the Alaska National Interest Lands Conservation Act, bars the National Park Service from regulating non-federal navigable waters surrounding State, Native, and private lands. Those who would answer “yes” are concerned about the impact on Alaskans who live on the surrounding lands and their ability to benefit from their natural resources. In Virginia Uranium v. Warren, the Court is being asked to decide whether the Atomic Energy Act, preempts a state law that looks like it regulates activity in the state’s jurisdiction (here, uranium mining), but has the effect of regulating the radiological safety hazards under the protection of the National Regulatory Commission. Read this editorial for more on Virginia Uranium, and this article for more on Sturgeon.

           On Tuesday, the Court will hear arguments in BNSF Railway Company v. Loos, which has to do with the Railroad Retirement Tax Act (click here for details), and Bucklew v. Precythe,which asks several questions about Missouri’s lethal injection death penalty protocol (click here for more about the case and broader issues relating to the death penalty). On Wednesday, the Court will hear arguments in Culbertson v. Berryhill (about attorney fees in Social Security claim cases) and Republic of Sudan v. Harrison (about whether someone can sue a foreign state by serving the state’s diplomat in the US).

           On Thursday November 8, 2018, the Court will take a break from hearing arguments and working on cases to hold the Investiture Ceremony for Justice Kavanaugh. Supreme Court Justices take two oaths: a Constitutional Oath, administered privately, and a Judicial Oath, administered in a live broadcast (click here for a historical overview of Supreme Court Oaths). After taking the Judicial Oath, a new Justice will usually walk down the 44 steps of the Court’s building with the Chief Justice. However, as CNN reports, Justice Kavanaugh has decided not to go on this walk with the Chief Justice because of security concerns. USA Today and The Mercury News have more on the death threats targeting Justice Kavanaugh and his family.

The Court will end the week with a conference on Friday November 9, and will discuss a number of cases. In Louisiana Public Service Commission v. Federal Energy Regulatory Commission, the Court is being asked to consider questions relating to the Federal Power Act conflicts with state law. In Patterson v. Walgreens, the Court is being asked to overturn a 1977 precedent. TWA v. Hardison, that limits the protections Title VII provides to employees engaging in religious practices. In Carty v. Texas, the Court is being asked to decide questions relating to habeas review of cumulative prejudice in trials for capital cases. The case involves a British woman on Texas’s death row, and has been receiving media attention in the United Kingdom and here in the United States.

The complete list of cases set to be discussed at that conference can be found here.

This post was written by ISCOTUS Fellow Zoe-Arthurson McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Birthright Citizenship, the President, and the Supreme Court

Last week, President Donald Trump declared his intent to use an executive order to limit the right of birthright citizenship.

The principle that anyone born on American soil is a citizen of the United States is based in the Fourteenth Amendment to the Constitution, which was ratified in 1868. The Amendment opens with the declaration, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This provision was a direct repudiation of the Supreme Court’s 1857 Dred Scott decision, which held that no black, free or slave, could claim U.S. citizenship. The prevailing opinion of legal scholars and historians is that the text means pretty much what it says: if you’re born in the United States, you’re a citizen of the United States.

To the extent that there is any ambiguity in the text, it resides in the qualification of birthright citizenship to those who are “subject to the jurisdiction” of the United States. The drafting history shows that the framers included this language so as to exclude the children of foreign diplomats and soldiers and Native Americans from its coverage.

President Trump’s claim that he would use an executive order to exclude the children of undocumented immigrants who are born in the United States from being recognized as U.S. citizens raises two legal questions. First, does the President have the authority to redefine the long established understanding of the birthright citizenship clause by executive order? Second, assuming he does (or assuming that Congress were to pass a law along the lines of what Trump proposed), would an effort to limit birthright citizenship in this way violate the Fourteenth Amendment?

As to the meaning of the Fourteenth Amendment’s birthrights citizenship clause, the Supreme Court has evaluated the clause, but never ruled  squarely on the issue at the heart of the current debate. In 1898, in the case of United States v. Wong Kim Ark, the Court held a child born in San Francisco to Chinese parents was a citizen, even though the Chinese Exclusion Act made the parents ineligible for citizenship. The court said:

To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.

Since Wong Kim Ark’s parents were legally in the country, the Court holding does not necessarily apply to situations—such as those Trump is talking about—in which the parents’ presence in the country is itself a violation of law.

Almost a century later, in the 1982 case Plyler v. Doe, the Supreme Court ruled that the Fourteenth Amendment’s Equal Protection Clause prohibited a state from excluding undocumented children from access to free public education. Although the Court had no reason to discuss the birthright citizenship clause, it did interpret a related phrase in the Equal Protection Clause to apply to undocumented immigrants. In subsequent decisions the Court has assumed that children born to undocumented parents are citizens of the United States, but is has never directly held that this was required by the Constitution.

Most legal scholars believe the Fourteenth Amendment requires birthright citizenship and that terminating the practice would require a constitutional amendment. James Ho, a conservative legal scholar appointed by President Trump to a federal appeals court, has written as much; so has John Yoo, a University of California, Berkeley, law professor who served in George W. Bush’s administration.

Some legal scholars have dissented from this consensus, however, including Peter Schuck, an emeritus professor at Yale Law School. In 2010, Schuck wrote that Congress could withhold birthright citizenship from children who are in the country “as a result of an illegal act” without passing a constitutional amendment.

The impact of terminating birthright citizenship could be massive. In 2014, roughly 275,000 babies were born to unauthorized-immigrant parents, or about 7% of the 4 million births in the United States that year.

It is unclear whether the President will follow through on his proposed executive order, but in a recent tweet he claimed, “This case will be settled by the United States Supreme Court!”


This post was written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt .



Oral Argument October 29: Arbitration Again

On Monday, the Court started its newest argument session by hearing arguments for two cases revolving around the Federal Arbitration Act (FAA). The FAA compels parties that contract for arbitration to resolve that dispute with an arbitrator instead of a court. In recent years, the Court has read the FAA expansively, including last Term.  

The first case, Henry Schein Inc. v. Archer and White Sales Inc., both Schein and Archer manufacture and sell dental equipment. Archer accused Schein of violating the Sherman Act and various other antitrust laws. Here, the Court must decide if courts can refuse to hear a question of arbitrability even if the claim is wholly “wholly groundless.” Petitioner Henry Schein Inc. argues that the Court has already decided issue of arbitration, and that this case clearly falls outside that scope. Respondent Archer & White Sales Inc. argue they cannot be forced into arbitration because they only contracted for arbitration for “damages,” and the current action before the Court is for injunctive relief. Bloomberg reports that Daniel Geyser, counsel for Archer stated during oral arguments that it is more efficient for courts to decide if claims are frivolous before they go before an arbitrator. In response, Justice Sotomayor stated if this position was accepted, “we’re now inviting this fight in every motion to compel arbitration,” and “it’s not clear to me that your solution is more efficient in a meaningful way.”

The second case, Lamps Plus Inc. v. Varela, is an FAA dispute between an employer and employee regarding a data breach class action lawsuit. Lamps Plus has a requirement all employees sign a standard binding arbitration agreement as a term of employment, which it argues precludes class actions suits in court and in arbitration.  As the New York Times  reports, the actual language in the agreement is ambiguous and doesn’t specifically mention class action suits. Varela argues that due to the ambiguity he and other workers should be able to bring the class case in arbitration. Check out CNBC and Jurist for more information on this case.

This post was written by ISCOTUS Fellow Clayburn Arnold, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Conference Report: October 26 Conference

After the Supreme Court justices met in Conference on October 26, the Court  called for the views of the Solicitor General in two cases. In Swartz v. Rodriguez, the Court is asking the Solicitor General to weigh in on issues relating to an implied remedy for damages and qualified immunity where a United States border patrol agent fired shots across the Mexican border amd killed a Mexican citizen. The Court considered these issues in an earlier case, Hernandez v. Mesa, which was argued in February 2017, but it did not resolve the legal issues. Instead, it remanded Hernandez to the lower court to reconsider in light of another decision, Ziglar v. Abbasi, narrowing the circumstances under which federal officials can be sued for constitutional violations. (ISCOTUSnow discussed Hernandez here and here, and Ziglar here.)  In the second case, Ariosa Diagnostics v. Illumina, the Court is asking the Solicitor General to weigh in on questions of law in circumstances in which a patent is voided because of someone else’s past disclosure of an invention to the Patent and Trademark Office.

The Court also denied review in a capital case, Townes v. Alabama, In Townes, two court reporters certified two different transcripts that differed by one word in the instructions, whether they “may infer his intent to kill” or “must infer his intent to kill.” The “may” instruction is constitutional, while the “must” instruction would have been a violation of Townes’ right to due process. Justice Sotomayor wrote a statement criticising the trial court’s failure to preserve the original recording of the jury instructions in Townes’ trial resulting in a capital murder conviction. She wrote: “Because Townes has not shown that the procedures below amount to constitutional error, I must vote to deny his petition for certiorari. I write separately because the trial court’s failure to preserve the original recording gives cause for deep concern.” Courthouse News has more on the case and Justice Sotomayor’s statement here. Criticism of the Court’s denial can be found here.

Finally, the Court granted cert in three cases. In Return Mail Inc. v. United States Postal Service, the Court is being asked to consider whether the government qualifies as a “person” under the Leahy-Smith America Invents Act (AIA), and can therefore petition to institute review proceedings under the AIA. In Mission Product Holdings Inc. v. Tempnology, LLC, the Court is being asked to consider whether a debtor-licensor’s rejection of a license agreement, which is a breach of contract under the Bankruptcy Code, terminates the rights of a licensee, when those rights would survive that breach under the relevant non-bankruptcy law. In United States v. Haymond, the Court is being asked to consider whether the 10th Circuit erred in holding the portions of 18 U.S.C. §3583(k) that required the district court to revoke Haymond’s ten-year supervised release and impose a 5-year sentence upon finding that he knowingly possessed child pornography by a preponderance of the evidence, are “unconstitutional and unenforceable.” The Court denied mandamus in two cases and denied cert in 210 cases.

Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.