Monthly Archives: October 2016

OT 2016, Weekly Preview

The Week Ahead in the Supreme Court — October 31, 2016

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On Monday the Court will hear arguments in Fry v. Napoleon Community Schools and Star Athletica v. Varsity Brands. In Fry, the court will decide if those seeking damages by suing under the Americans with Disabilities Act or the Rehabilitation Act, must exhaust administrative remedies before bringing a lawsuit. Stacy and Brent Fry brought a monetary damages suit against their daughter’s school after the school refused to allow their daughter, who has cerebral palsy, to bring her service dog to school with her. A federal district court dismissed their claim because the Frys had not pursued alternative remedies; a federal appeals court upheld the lower court’s decision. The Frys are represented by the ACLU and are supported by the Obama administration. Check out US News for more on the case.

In Star Athletica, also being argued on Monday, the court will decide if certain patterns on cheerleading uniforms are copyrightable. Varsity Brands, the leader manufacturer of cheerleading apparel, has copyrights on various designs that identify cheerleading outfits. Star Athletica is contesting Varsity’s ownership of the designs, arguing that that the designs are generic in nature and do not fit this criteria. The New York Times breaks down the case, here. And Bloomberg discusses the legal issues—and the coincidence of this case being argued on Halloween.

On Tuesday, the Court will hear arguments in a case involving insurance giant, State Farm. In State Farm Fire & Casualty Co. v. United States, ex rel. Rigsby, the Court decides whether a case brought under the False Claims Act should be dismissed if the party bringing the suit discloses it before it is served on the defendant. The lower court decided that State Farm violated the False Claims Act when it submitted as flood claims damage that in fact resulted from wind damage (federal insurance policy covered flood damage, but not wind damage). State Farm argues that the whistleblower who brought the claim violated the act’s “seal” requirement by disclosing the complaint before the court ordered it served on State Farm. Ronald Mann of Scotusblog discusses this case, breaking down the False Claims Act and what to expect for argument come Tuesday.

The Court will also hear arguments in a patent infringement lawsuit this week. In SCA Hygiene Products v. First Quality Baby Products, the Court will have to decide if laches (unreasonable delay in bringing a lawsuit) can bar a patent infringement claim occurring in the six-year statute of limitations period. Martha Neil of the ABA Journal discusses the history of this case in the Federal Circuit, here.

The final case the Court will hear this week is Venezuela v. Helmerich & Payne. Venezuela has asked the Court to review the U.S. Court of Appeals for the DC Circuit’s decision reversing the grant of summary judgment for Venezuela. The country was accused of illegally taking control of Helmerich & Payne’s oil drilling rigs after they did not renew their contract with the country. Venezuela is arguing that they are protected from being sued in U.S. court by the Foreign Sovereign Immunities Act. Amy Howe of Scotusblog details the arguments on either side of this debate, here.

(To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

OT 2014, Weekly Roundup

Weekly Roundup–October 28, 2016

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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.)

This week, the Court did not hear any arguments, but the Justices are meeting to discuss cert petitions at Conference on October 28. SCOTUSblog reports on some notable petitions, including Packingham v. North Carolina, Purcell v. Arizona, and Sireci v. Florida, which have been repeatedly relisted for Conference.

Senator Ted Cruz (R-Texas) recently suggested that the Senate Republicans might block any nominee from a Democratic president indefinitely. Cruz, speaking at a campaign rally for U.S. Senate candidate Darryl Glenn in Colorado, argued that there is a “historical precedent for a Supreme Court with fewer justices” and that “Justice [Stephen] Breyer observed that the vacancy is not impacting the ability of the Court to do its job.” Burgess Everett of Politico discusses these comments and Democratic responses. And as ISCOTUSnow noted earlier this week, the Court appears to be avoiding scheduling the most high profile cases up for consideration this term.

Mark Sherman from the Associated Press reports on a recent Clarence Thomas discussion at the Heritage Foundation. Thomas criticized the Senate confirmation process for Supreme Court nominees as “broken in some ways” and described the erosion of our political civility: “”We have decided that rather than confront disagreements, we’ll just simply annihilate the person who disagrees with me. I don’t think that’s going to work in a republic, in a civil society.”

Also this week, Dahlia Lithwick of Slate discusses how the Supreme Court might have a diminished ability to intervene in future disputed presidential elections. She argues that increasing partisan polarity rising in the other two branches of government has delegitimized the role of the Court in deciding contested elections.

Finally, Mark Walsh of SCOTUSblog published an interview with lifelong Cubs fan, the retired Justice John Paul Stevens. Stevens, 96, will be attending game four of the World Series on Saturday. The first time Stevens ever visited Wrigley Field was during the 1929 World Series, when the Cubs fell to the Philadelphia Athletics. Justice Stevens, forever the optimistic Cubs fan, concludes with a prediction: “Well, I thought they were going to win in four straight,” he said. “I guess I was wrong on that. I’m confident that they’ll pull it through. They have an awfully good team, and I think they’ll do it in the next four games.”

Death Penalty, This Day In Supreme Court History

This Day in Supreme Court History: October 26, 2010

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On this day in 2010, the Supreme Court vacated an emergency restraining order preventing the execution of Jeffrey Landrigan. Arizona executed him that day.

Landrigan was convicted of first degree felony murder in 1990 and sentenced to death. After years of unsuccessful appeals, on September 15, 2010, the Arizona Supreme Court issued a warrant of execution and set the execution date for October 26, 2010.

Landrigan was sentenced to die by lethal injection, which would be administered in accordance with the three-drug lethal injection method that the U.S. Supreme Court in Baze v. Rees (2008) had deemed constitutionally acceptable under the 8th Amendment. The Court in Baze held that the three-drug protocol did “not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.”

Landrigan’s last-minute appeal was based on questions concerning the first drug of the Baze-approved three drug protocol, sodium thiopental, which was supposed to induce unconsciousness and prevent pain during the rest of the execution. On October 21, 2010, Landrigan’s lawyer filed a civil rights complaint demanding information about the sourcing of the drug. Anti-death penalty activists had pressured drug manufacturers to stop producing sodium thiopental, resulting in a nationwide shortage of the anesthetic. In light of the shortage, Landrigan’s counsel sought to compel Arizona to identify the source and nature of the drug they intended to use on Landrigan. Arizona revealed that it had acquired the sodium thiopental from a foreign manufacturer and the particular drug had not been approved by the Food and Drug Administration. A district court in Arizona granted the temporary restraining order on October 25; the 9th Circuit affirmed the order the following day.

In its October 26 order vacating the temporary restraining order, the Court explained: “There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm…But speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering’.” Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application to vacate the temporary restraining order. Landrigan was executed hours after the Court’s order.

The Court continued to struggle with the consequences of the drug shortages at issue in Landrigan’s appeals. After anti-death penalty activists succeeded in getting sodium thiopental off the market, states turned to different drugs as part of their three-drug protocol for executions. This brought more legal challenges and another Supreme Court case. In Glossip v. Gross (2015), a  five-justice majority upheld a new three-drug protocol. The most discussed aspect of the Court’s Glossip ruling was not the holding, however, but the separate dissenting opinion of Justice Breyer in which he questioned whether the death penalty itself violates the 8th Amendment.

OT 2014

The Week Ahead in the Supreme Court–October 24, 2016

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The Supreme Court will not hear any arguments this week. (It generally hears arguments two weeks each month between October and April.) As we wait for arguments to resume on October 31, some are speculating the eight-member Court is granting certiorari in fewer cases because of the justices’ concern about ties. But a column in the Washington Post suggests that the Court is also postponing hearing argument in cases it has already granted in the hopes that until after the Presidential election, a ninth member will be appointed to the Court. Particularly sparse is the two-week sitting that will begin Nov. 28. The Court is scheduled to hear only eight cases, down from the usual twelve. Moreover, three cases the court granted in January 2016, before Justice Antonin Scalia’s death, have yet to be scheduled for oral arguments, even though the court has already heard arguments in some cases that were granted months later.

The election is only two weeks away and CNN reports that some experts are gaming out a “doomsday scenario,” in which a candidate contests the election results in one state whose electoral votes are decisive. As in 2000, eventually the fate of the election would likely go to the Supreme Court. If the eight-member Court reached a tie in such a case, the justices would affirm an opinion from a lower court. But there would inevitably be calls for Justice Ruth Bader Ginsburg to recuse herself because of comments she made about Donald Trump in the summer. (Justice Ginsburg called Trump a “faker,” with “no consistency.” ISCOTUS Co-Director Christopher Schmidt discussed her comments on this blog last summer.) Were she to do so, then the case might be decided by only seven justices.

In more heartwarming news, just a few days after the election Ruth Bader Ginsburg will make her opera debut. The Washington Post reports that Ginsburg will play the role of the Duchess of Krakenthorp on the opening night of “The Daughter of the Regiment” on November 12 at the Washington National Opera. The 83-year-old justice will not sing but will have some spoken lines.

OT 2016, Weekly Roundup

Weekly Roundup—October 21, 2016

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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.)

With no oral arguments this week, the only news from the Supreme Court were the orders from last week’s Conference that the justices issued on Monday. They did not grant any new cases. One case in which they denied certiorari is Elmore v. Holbrook, in which a Washington man pled guilty to the rape and murder of his stepdaughter and was sentenced to death. Justice Sotomayor wrote a dissent to the cert denial, joined by Justice Ginsburg, in which she provided a lengthy argument that Elmore’s attorney did not do enough in defending his client. In particular, the defense lawyer failed to investigate and present evidence of the brain damage and cognitive deficits Elmore suffered as a result of exposure to toxins at a young age, evidence that he argued, and Justice Sotomayor agreed, should have been considered in his sentencing. Read more about Justice Sotomayor’s dissent on this blog and catch up on this week’s order list from Amy Howe of SCOTUSblog.

Of the cases the justices are still considering, perhaps the most closely watched is Gloucester County School Board v. G.G., a Virginia school board’s request to review a decision that requires the board to allow a transgender student to use the boys’ bathroom at his school.

Lyle Denniston of Constitution Daily wrote an interesting article this week on another pressing issue: the delayed confirmation of Merrick Garland. Denniston noted that federal law stipulates that the Court can perform its duties as long as there are six sitting Justices. Yet, with only eight Justices, the court is acting  cautiously when deciding to take on cases that may lead to a 4-4 vote, he noted, and thus allowing more lower courts decision to define the law of the land.

Justice Sotomayor provided her own insight into this issue on Monday. CBS News reports that Sotomayor has stated that it is much more difficult for the Justices to do their job without a court of nine, and deadlocked cases can leave an uneven ruling of law on pressing issues throughout the country.  On a more humorous note, Justice Sotomayor said that although Justice Scalia’s death was like that of losing a family member, “there are things he’s said on the bench where if I had a baseball bat, I might have used it.”

Finally, the Supreme Court was the first topic of discussion at Wednesday’s presidential candidate debate. Chris Wallace asked both candidates their view on the Court and how the Constitution should be interpreted. Both candidates described the types of justices they would seek, but largely focused on the issues of abortion and guns. Trump insisted his opponent was in favor of late-term abortions and opposed gun rights. Clinton defended Roe v. Wade and insisted that the Second Amendment allowed for reasonable regulation of guns.

This Day In Supreme Court History

This Day in Supreme Court History: October 19, 1789

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On this day in 1789, John Jay took the oath to become the first Chief Justice of the United States.

Before being chosen by President George Washington to lead the newly formed Supreme Court, Jay was one of the leading figures of early American politics. During the Revolutionary War, he served as President of the Continental Congress and then traveled to Europe to serve as a diplomat for the new nation. Under the Articles of Confederation, he served as Secretary for Foreign Affairs. Along with James Madison and Alexander Hamilton, he helped make the case for ratification of the newly drafted Constitution in his essays in The Federalist.

In addition to the Chief Justice, the first Supreme Court had five associate justices: James Wilson, John Rutledge, William Cushing, John Blair, and James Iredell. Its first meeting took place on February 2, 1790, in the Merchants Exchange Building in New York City. It was, to put it mildly, uneventful: the justices had no cases to consider (they would not hear a case until 1791).  

The Jay Court heard only a handful of cases in its six-years. Perhaps its most significant was the case that helped convince Jay to leave the Court and return to political life. In Chisholm v. Georgia (1793), the Court interpreted Article III of the Constitution to allow individuals to sue states in federal court. The nation quickly reversed this unpopular ruling with the 11th amendment, which that Jay took as a challenge to the Court. He resigned from the Court in 1795. After serving two terms as the governor of New York, Jay retired from public life in 1801. President John Adams tried to persuade him to serve another term as Chief Justice, but Jay refused, explaining that he believed the Supreme Court lacked “energy, weight and dignity.” He died in 1829 at the age of 83.

Death Penalty, OT 2016

Justice Sotomayor’s Death Penalty Dissent

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This week is a quiet one at the Supreme Court. The justices will not hear any oral arguments and yesterday they released an Order List that included no new cases for the term’s docket. There was, however, one thing notable about this otherwise routine Order List: Justice Sotomayor, joined by Justice Ginsburg, issued a relatively rare dissent from a denial of certiorari.

Justices Sotomayor and Ginsburg took issue with the Court’s refusal to grant review in Elmore v. Holbrook, a capital case that came out of the 9th Circuit and had been relisted for conference since April 22, 2016. The case involves petitioner Clark Elmore who, after pleading guilty to charges of rape and aggravated murder, was sentenced to death. Elmore’s appointed counsel advised his client to plead guilty to the crimes in order to increase his chance at receiving a life sentence and then presented only a limited defense at sentencing. He chose to not pursue other mitigating factors in order to avoid potential rebuttals, and failed to object when Elmore was first introduced to his jury wearing shackles. The Washington Supreme Court and the lower federal courts all refused Elmore’s post-conviction appeal on the grounds of inadequate counsel.

“The Constitution demands more” than the defense Elmore’s attorney provided,. Justice Sotomayor wrote in her fifteen-page dissent. “His lawyer acted deficiently in choosing a mitigation strategy without fully exploring the alternatives and in failing to investigate the mitigation strategy that he did choose to present.” She wrote that she believes the Court should grant certiorari and reverse Elmore’s death sentence because his Sixth Amendment right to effective assistance of counsel had been violated.

In concluding her dissent, Justice Sotomayor noted the chorus of voices who believe the death penalty itself may be constitutionally infirm–including her colleague Justice Breyer in a 2015 opinion joined by Justice Ginsburg (but not Justice Sotomayor). She made clear that this case does not raise this fundamental issue, but then added that she believes “that whatever flaws do exist in our system can be tolerated only by remaining faithful to our Constitution’s procedural safeguards.”

OT 2016, Weekly Roundup

Weekly Roundup—October 14, 2016

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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.)

On Tuesday, the Supreme Court heard Samsung Electronics v. Apple, in which Apple accused Samsung of infringing on its design patents covering the iPhone’s look and shape. The lower court ordered Samsung to pay damages reflecting all of their profits on the infringing smartphones, not just the profits stemming from the design. Samsung’s attorney, Kathleen M. Sullivan, told the justices that customers buy smartphones because of their thousands of technological advances, not just the screen’s appearance. Chief Justice Roberts expressed skepticism. Since the design patents cover the “exterior case of the phone,” why should the award reflect profits “based on the entire price of the phone,” he asked. Other justices said they were uncertain of what to do about the total profit rule. “If I were a juror, I wouldn’t know what to do,” confessed Justice Kennedy. At the Washington Post, Robert Barnes predicted that the Court would reduce the damage award. Additional coverage of oral arguments can be found at the New York Times and CNBC.

Also on Tuesday the justices heard Pena-Rodriguez v. Colorado, an appeal from a Colorado man who claims juror racial bias violated his right to a fair trial. A jury unanimously convicted Miguel Pena-Rodriguez of inappropriately touching teenage girls at a Denver-area horse race track. Two jurors said that a fellow juror believed Pena-Rodriguez was guilty because he is “Mexican, and Mexican men take whatever they want.” Colorado has a no-impeachment rule: a rule that prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations.” Pena-Rodriguez argues that this rule violates his Sixth Amendment right to an impartial jury in light of the serious claims of racial bias.  During oral arguments, Justice Breyer explained that an exception to the no-impeachment rule in such cases may be needed to “create a judicial system that is seen as fair.” But some justices worried that such a ruling could lead to widespread claims of bias. Justice Alito asked lawyer Jeffrey Fisher, representing Pena-Rodriguez, what would happen if an exception were made to the no-impeachment rule for racial bias but not for other improper actions by juries, such as a decision on a defendant’s political affiliation. Coverage of the case can be found at CNN and ABC.

In Manrique v. United States, the third case of the week, the court considered whether a notice of appeal from an initial judgment of conviction in a federal criminal case can also encompass a challenge to the district court’s subsequent restitution determination under the Mandatory Victims Restitution Act. Assistant Federal Defender Paul Rashkind argued on behalf of Marcelo Manrique that one notice of appeal suffices in criminal cases. On SCOTUSBlog, Steve Vladek reports Justice Ruth Bader Ginsburg expressed concern about cases in which a defendant was not notified of the need to file a second notice of appeal.

The justices also took on some new cases this week. On Tuesday the Court said it will consider a lawsuit against former attorney general John Ashcroft and other officials filed by immigrants who say they were racially profiled and illegally detained after the September 11, 2001, attacks. Justices Sotomayor and Kagan have recused themselves from the case. The case was filed on behalf of hundreds of noncitizens, most of them Muslim, who, although never charged with terrorism, were held in harsh conditions in Brooklyn. Besides Ashcroft, they are attempting to sue former FBI director Robert Mueller and former Immigration and Naturalization Service commissioner James W. Ziglar.  Ziglar v. Turkman will be probably be heard early next year. The Court also granted certiorari in Hernandez v. Mesa, which involves a Mexican 15-year-old who was shot by American border agents while he was in Mexico and the agents were in the United States. His family is trying to sue the border agents.

At the second Presidential debate last Sunday, the Supreme Court was one of the topics of conversation. Hillary Clinton said, “I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose and I want a Supreme Court that will stick with marriage equality.” She criticized her opponent Donald Trump for supporting justices who would reverse both. “I think that would be a terrible mistake and would take us backwards.” Trump responded by saying he is “looking to appoint justices very much in the mold of Justice Scalia…people that will respect the Constitution of the United States.” ABC News has a video clip of the exchange.

At the final debate, moderated by Fox News anchor Chris Wallace, the Supreme Court will be one of the selected topics for the night. The debate will be held at 9 p.m. Eastern Time, on Wednesday, Oct. 19, at the University of Nevada, Las Vegas.

This Day In Supreme Court History

This Day in Supreme Court History: October 12, 1864

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On this day in 1864, Chief Justice Roger B. Taney died.

Taney’s career on the Supreme Court was marked by controversy from the start. Nominated to the Court by President Andrew Jackson in 1835, the Senate initially refused to confirm Taney as an Associate Justice because of his controversial record as Jackson’s Attorney General, particularly his role in dismantling the Second Bank of the United States. After Chief Justice John Marshall died later that year, Jackson nominated Taney to the Court again, and in 1836 he secured Senate approval. Although he wrote many significant opinions during his almost three decades on the Court, the opinion for which he will forever be remembered is Dred Scott v. Sanford (1857), in which he held that African Americans, whether free or slave, were not citizens of the United States and that Congress lacked authority to prohibit slavery in the territories.

Reflecting on the Chief Justice’s death, the editors of the New York Times noted:

The demise of Chief-Justice Taney comes almost like some strange visitation. For one full generation he has occupied the highest judicial position in the United States, and it almost seems identified with his name. The disturbance of old associations is all the greater, because it happens at the very height of the civil conflict which is linked indissolubly with the most important act of his judicial life.

Judge Taney was a man of pure moral character, and of great legal learning and acumen. Had it not been for his unfortunate Dred Scott decision, all would admit that he had, through all those years, nobly sustained his high office. That decision itself, wrong as it was, did not spring from a corrupt or malignant heart. It came, we have the charity to believe, from a sincere desire to compose, rather than exacerbate, sectional discord. But yet it was none the less an act of supreme folly, and its shadow will ever rest on his memory.

On December 6, 1864, President Abraham Lincoln–who as a candidate for the U.S. Senate  in 1857 had denounced Taney’s Dred Scott opinion and who as President remained a strong critic of the Chief Justice–nominated former Ohio governor and current Secretary of the Treasury Salmon P. Chase to become the sixth Chief Justice of the United States. The Senate confirmed Chase, a dedicated abolitionist, that same day.

OT 2016, Weekly Preview

The Week Ahead in the Supreme Court–October 10, 2016

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The Court will hear arguments in three cases during week two of the October 2016 Term.

The Court is not sitting on Monday due to Columbus Day, nor is it sitting on Wednesday, because of Yom Kipur. But it is hearing three cases on Tuesday. First, the Court will hear Samsung Electronics v. Apple, a case in which it will decide whether to uphold part of a verdict ordering Samsung to pay Apple $399 million in damages for infringing on Apple’s iPhone design. At issue is whether, where a design patent is applied to only a component of a product, an award of an infringer’s profits should be limited to those profits attributable to the component. This case involves no copyright or trademark held by Apple, but a “design patent” granted under a statute that the Court has not considered in more than 50 years. The two tech giants are no strangers in court; Apple won against Samsung in the Federal Circuit last week. Bloomberg reports these cases are a “global legal battle between the world’s biggest makers of smartphones that began in April 2011 and at one point spanned four continents.” Read more about the tech feud in front of the Court from CNET.

In Pena-Rodriguez v. Colorado the Court must decide whether a no-impeachment rule may constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment’s right to an impartial jury. Pena-Rodriguez was accused and convicted of harassment and sexual assault in Colorado. The state has a no-impeachment rule: a rule that prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations.” Two jurors told Pena-Rodriguez’s attorneys after the trial that one juror expressed bias against Mexicans in the jury room. The trial court agreed that that juror had expressed bias, but refused to order a new trial because of Colorado’s no-impeachment rule. The New York Times reports Supreme Court of Colorado’s decision stemmed from its belief that “protecting the secrecy of jury deliberations is of paramount importance in our justice system.” CNN previews the case and notes that in her opinion for a unanimous Court in the 2014 case of Warger v. Shauers, Justice “Sotomayor implicitly recognized [that] not all jury bias is cut from the same cloth.”

Finally, in Manrique v. United States, the Court will decide whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a restitution award that was issued later. Marcelo Manrique pled guilty to one count of possession of child pornogrophy and was sentenced to 72 months’ imprisonment. His sentence included a life term of supervised release; and deferred restitution – recorded as $0 in the initial judgment, but determined after a hearing to be $4,500. Manrique filed a notice of appeal from the initial sentencing judgment. The lower court ruled that because he did not file a notice of appeal from the amended post-hearing judgment, the appeals court did not have jurisdiction to consider a challenge to the appropriateness of the restitution award. Manrique asked the Supreme Court to review the lower court’s decision. Steve Vladeck previews the case on SCOTUSblog; Supreme Court Review breaks down the complicated question presented as well as details about the argument.