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The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

This Week at the Court – Week of June 19, 2017

The Supreme Court hit the ground running this week, handing down five opinions, one per curiam, and releasing its order list from its June 15 conference.

Matal v. Tam (previously named Lee v. Tam) stems from a challenge by an Asian-American band wishing to trademark their band name, “The Slants,” with the U.S. Patent and Trademark Office (PTO). Under the governing statute, known as the Lanham Act, the PTO was not required to register any trademark that is “disparaging” to “persons, living or dead, institutions, beliefs, or national symbols.” The Court decided that the Lanham Act’s disparagement clause violates the free speech clause of the First Amendment. This unanimous victory for Simon Tam and “the Slants” sparked discussions about the Washington Redskins and their controversial team name. The decision was unanimous as to result, but there was a majority as to only part of the primary opinion, written by Justice Alito. Both Justice Kennedy (joined by Justices Ginsburg, Sotomayor, and Kagan) and Justice Thomas concurred in part and concurred in the judgment. The Washington Post discusses the arguments on either side of this debate, noting that “while this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will not pass to the public.” And in an unusual move, The New York Times confessed in an editorial that it had determined its previous position supporting the anti-disparagement provision, in the context of the PTO’s denial of a trademark for the Redskins, had been wrong, and it published a profile of Simon Tam and the band here. Matal v. Tam served as the ISCOTUSnow’s teaching focus at Constitutional Rights Foundation Chicago (CRFC)’s event in June. Simon Tam joined our discussion via Skype to explain his argument, which prevailed in the high court. Read more about the event, here. SCOTUSblog is sponsoring a symposium on the decision.

In Ziglar v. Abbasi, the Court addressed whether a group of non-citizens who were detained after the terrorist attacks on September 11, 2001 could sue for damages against two groups of federal officials for their “harsh pretrial conditions for a punitive purpose” in violation of their Fifth Amendment rights. (Former FBI Director Robert Mueller was among the federal officials sued in this suit.) The legal theory stemmed from Bivens v. Six Unknown Fed. Narcotics Agents, in which the Court created a remedy for constitutional violations carried out by agents of the federal government even in the absence of statutory authorization for such a lawsuit. But the Court, in an opinion by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Thomas, held in Ziglar that a Bivens type remedy should not be extended to the plaintiffs in this case in part because of the national security context. Justice Breyer, joined by Justice Ginsburg, dissented, and in an unusual move, he read part of his dissent from the bench. It was the first time this Term that any Justice has done so. Garrett Epps of The Atlantic recounts his powerful words calling them “civil but furious.” Justice Breyer used a metaphor of arson in his decision, warning his colleagues that a decision such as this, Epps explains, burns down “the entire structure of constitutional torts to shelter officials in national-security matters.” Because Justices Sotomayor and Kagan were recused and Justice Gorsuch had not yet joined the Court when the case was argued, Ziglar was heard by only six Justices.

The question in Packingham v. North Carolina, the Court was whether it was violated the First Amendment to restrict the access of registered sex offenders to social media websites where minors are allowed to have accounts. Lester Packingham, a convicted sex offender was arrested after the police found his Facebook profile, and he was charged with violating North Carolina’s law that made it a crime for offenders to access sites such as Facebook. (Mr. Packinhgham was convicted for violating the law after he thanked God on Facebook for getting out of a traffic ticket.) On Monday, the Court, in an opinion by Justice Kennedy, struck down the law. According to Ephrat Livni of Quartz, “the justices unanimously held that states can’t broadly limit access to social media because cyberspace ‘is one of the most important places to exchange views.’” Livni went on to note that this case has implications for society as a whole, not just offenders, and the court “appears to be extreme conscious of the broader effect.” Justice Kennedy wrote “A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” The court also stated that criminals are especially in need of being able to freely use the internet for the many different types of information available, such as employment ads and “exploring the vast realms of human thought and knowledge. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Check out ScotusBlog, The Atlantic, and The New York Times for more commentary on this case.

The fourth opinion announced on Monday was in McWilliams v. Dunn. As Ryan Lovelace of The Washington Examiner explained, James McWilliams was convicted of the rape and murder of Patricia Reynolds and sentenced to death. He requested neuropsychological testing, but his attorneys did not have an opportunity to work with an expert to review and analyze the results. Justice Breyer, joined by the other three liberals and Justice Kennedy, wrote the opinion in this case, which sided with McWilliams. The opinion stated that he did not get the assistance that he was guaranteed under Ake v. Oklahoma. As Lawrence Hurley of Reuters noted, Ake guarantees that indigent defendants are entitled to expert assistance, but the McWilliams ruling does not clarify whether defendants are entitled to have their own expert, or if one expert for both the defense and prosecution is good enough if the defense has the appropriate assistance in assessing the expert report. Taylor Dolven of Vice comments on Justice Alito’s dissent (joined by the Chief Justice and Justices Thomas and Gorsuch), which stated that the decision was too narrow and “case-specific.”

Finally, in an 8-1 decision written by Justice Alito, the Court held in Bristol-Myers Squibb v. Superior Court of California that a state court does not have jurisdiction over claims brought by out-of-state residents over out-of-state conduct by a defendant that is domiciled out of- state, even if the state court would have jurisdiction over comparable claims brought by its own residents. Justice Sotomayor was the only dissenter, and she argued that this case would have substantial effects, in particular making it much more difficult for plaintiffs to aggregate their claims. Indeed, the scheduled trial in one class action has already been postponed in light of this decision.

In other news, on Monday, the Supreme Court unanimously reversed the Sixth Circuit — not for the first time — in a per curiam habeas case, Jenkins v. Hutton. And it announced that it would hear Gill v. Whitford, a major partisan gerrymandering case out of Wisconsin.

Justice Neil Gorsuch has been a member of the Supreme Court for more than two months and has even drafted his first opinion. But it wasn’t until late last week that Justice Gorsuch participated in his formal investiture ceremony. Justice Roberts delivered the judicial oath to an audience of lawmakers, federal judges, and President Trump. The New York Times recounts the event, noting that while it is “purely ceremonial,” it is a tradition that is “stately and steeped in history.” Photos from the event can be found at the Supreme Court’s official website.

Chief Justice Roberts has been busy on and off the bench in the last few weeks. He served as the commencement speaker for Cardigan Mountain School, his son’s junior high school. The Chief Justice had words of wisdom for the graduates: “From time to time, in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice.” View his full commencement address, here.

The Court has two more opinion announcement days scheduled — Thursday, June 22 and Monday, June 26, when it will also issue orders from the last Conference of the year — although it could add more announcement days next week if it needs to. Among other orders, the Court is expected to rule on the stay applications and petitions for certiorari in the travel ban cases by Monday. Stay tuned for these and other developments.

This Week at the Court – June 5, 2017

On Monday, the Court summarily affirmed a finding of liability in yet another voting rights case from North Carolina, issued four opinions, and granted certiorari in one case. In North Carolina v. Covington, the Court summarily affirmed a three-judge district court’s holding that the state legislative map was an unconstitutional racial gerrymander. (Only two weeks ago, in Cooper v. Harris, the Court struck down two of the state’s congressional districts for the same reason.) There were no dissents. In the same per curiam opinion, the Court also vacated the district court’s remedial order requiring a special election later this year and instructed the district court to weigh the equities more carefully and explicitly. There are mixed views about the significance of this case. Ian Millhiser of ThinkProgress argues that delays in remedies makes it easier for states to get away with illegal gerrymanders, while election law scholar Rick Hasen thinks:

On the merits, the balancing test that the Court puts forward for when a special election should be held makes great sense, and will extend beyond the racial gerrymandering cases. Indeed, with this new multipart test (“the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty”) I would expect plaintiffs to now ask for special elections more regularly and courts applying these sensible factors. So a ruling counseling restraint might actually create more disruption.

The Court also granted certiorari in Carpenter v. United States, in which the Court will grapple with the boundaries of the Fourth Amendment when it comes to cellphone data and whether law enforcement needs a warrant to get information from cellphone companies about their customers’ whereabouts. More specifically, the question presented is whether the Fourth Amendment permits a warrantless search and seizure of cell phone records pertaining to the location and movements of the cell phone user over the course of 127 days. Adam Liptak of the New York Times discusses the Court’s history with this issue, including the “third-party doctrine,” and the Stored Communications Act. Orin Kerr of the Washington Post speculates about why the Court took this case, and notes its importance: “Although the case is formally about cell-site records, it’s really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies.”

The Court also released unanimous (8-0) opinions in Town of Chester v. Laroe Estates, Inc., Advocate Health Care Network v. Stapleton, Honeycutt v. United States, and Kokesh v. Securities and Exchange Commission. In Town of Chester, in an opinion by Justice Alito, the Court held that intervenors in a federal case must have their own Article III standing where they seek relief that is different from the relief sought by the original plaintiffs, and it remanded for a determination as to whether the intervenors here are seeking different relief. This holding is reminiscent of the Court’s determination in Hollingsworth v. Perry that proponents of California’s gay marriage ban did not have standing to contest the district court’s decision striking down the ban where the state itself, through its elected officials, declined to appeal.

Justice Kagan wrote for the unanimous court in Advocate Health Care Network. The Court held that a pension plan maintained by an organization — here a hospital chain —  associated with or controlled by a church qualifies as a “church plan,” under the Employee Retirement Income Security Act (ERISA), even if the church itself did not establish the plan. Church plans are exempt from many legal requirements that other employee benefits plans must meet. Writing for the Constitution Daily, Lyle Denniston explained the implications of this decision, including that church organizations’ ealth care plans will not be required to obey the Obamacare mandate of free contraceptives for women employees – “if that mandate survives an expected move to rewrite it by the new Trump Administration.”

In Honeycutt, the Court unanimously decided that a defendant must actually acquire property as a result of a crime in order for that property to be subject to civil forfeiture pursuant to §853(a)(1) of the Comprehensive Forfeiture Act of 1984. The defendant in this case, Terry Honeycutt, did not personally benefit from illegal drug sales and was therefore not in violation of the Act. Peter J. Henning of the New York Times gave a preview of the case back in April, noting that “[i]f you are wondering how someone can be forced to give up something he never had, then welcome to the intersection of conspiracy and asset forfeiture law.”

Finally, in Kokesh v. Securities and Exchange Commission, the Justices unanimously held that a claim by the SEC for disgorgement must be commenced within five years of the date the claim accrued because it operates as a penalty under 28 U.S.C. §2462. An article in The National Law Review argues that this decision “left open the possibility of a further challenge to SEC disgorgement,” based on a footnote in the Court’s decision. Reuters comments on the impact of this decision: “For the more complex cases, this will be a sea change for them, they will have to move more quickly.”

Finally, yet again, the Court did not act on the petitions in the Second Amendment case Peruta v. California or in the case involving a baker who refused to make a cake for a same sex wedding, Masterpiece Cakeshop, Ltd. v. Colorado Human Rights Commission.

The Week Ahead – May 1, 2017

On Monday morning, the Court took the bench and issued two opinions, both by Justice Breyer. The more high-profile opinion, in Bank of America v. City of Miami, involves whether and when a municipality can bring a lawsuit under the Fair Housing Act. In this lawsuit, and in a companion suit against Wells Fargo, Miami alleged that the banks engaged in predatory lending in minority communities, leading to disproportionate numbers of foreclosures and vacancies in those neighborhoods, which in turn harmed the City in a variety of ways, including making it harder for it to assure integrated neighborhoods, reducing property tax revenues, and increasing the need for a variety of city services. In a 5-3 opinion, written by Justice Breyer and joined by the Chief Justice and Justices Ginsburg, Sotomayor, and Kagan, the Court held that the City’s alleged injuries fell within the “zone of interests” of the Fair Housing Act, so it could bring the lawsuit. The Court, however, imposed a vague but increased burden of establishing causation — more than mere foreseeability — on the City. It expressly declined to determine the precise contours of that burden. Justice Thomas, joined by Justices Kennedy and Alito, dissented from the Court’s holding that the City could sue, agreed that a higher level of causation was appropriate assuming the lawsuit could go forward, but concluded that the City could not meet that level of causation. Robert Barnes of The Washington Post has more.

In today’s other opinion, in Venezuela v. Helmerich & Payne, the Court construed an aspect of the Foreign Sovereign Immunities Act and concluded that a party alleging expropriation of property must allege facts establishing that the property was taken in violation of international law.

The Court issued its Order List from last week’s Conference — the first one in which Justice Gorsuch fully participated, other than recusing himself from a couple of cases that came from the Tenth Circuit, his former court. The Court granted certiorari in two cases, neither of which were among the most closely watched petitions. Amy Howe of SCOTUSblog summarizes the cases that were granted and some of the still-pending petitions.

Others are also making predictions about what the Court may have in store for the upcoming months. Perry Grossman of Slate believes that the Supreme Court is looking for cases involving civil forfeiture. Grossman notes that the Court recently decided Nelson v. Colorado, which took down Colorado’s demanding procedures required of those seeking to get their court costs refunded once their convictions were overturned. He argues the Court laid down this holding in order to make a point highlighting Due Process rights of those who have had property seized without actually being convicted, and will take on more of these cases in the future. And he describes Leonard v. Texas, in which the Court denied cert but Justice Thomas wrote a statement respecting that denial highlighting his concerns about civil forfeiture.

In other news, Justice Ginsburg recently gave a speech at Georgetown University. Henry Kronk of Western Journalism describes how Justice Ginsburg recalled her own confirmation to the Court, and contrasted it with the most recent nomination of Justice Gorsuch. Ginsburg expressed wishes of removing the tense political divisions that surrounds the Court, and noted that there was much more “collegiality” and “civility” in her hearing and other past hearings. She believes that partisan politics did not play a significant role in her confirmation, and noted that her biggest supporter on the Judiciary Committee was Republican Senator Orrin Hatch. Justice Ginsburg also commented, “every time we have a new justice, we have a new court.”

And Justice Gorsuch himself continues to make news, most recently with the revelation that he has not joined the “cert pool” — the group of justices whose law clerks collectively divide up the cert petitions for review. As Adam Liptak explains, Justice Alito also has stayed out of the pool, which has been blamed for the Court’s shrinking caseload.

The Court will not issue either orders or opinions again until next Monday, and it is done hearing argument for the year. Unless something unexpected happens, therefore, our Weekly Roundup is on hiatus this week. We will be back at the beginning of next week, however, to report on the latest developments.

Weekly Roundup – April 28, 2017

This week, the Court heard arguments in seven cases and issued an opinion in one.

Perhaps the most high profile case of the week was the last one, particularly in light of the Trump administration’s aggressive enforcement of immigration laws. Maslenjak v. United States asks whether a naturalized citizen may be stripped of her citizenship in a criminal proceeding because of an immaterial false statement made during her application process. The government argued that when Divna Maslenjak applied to become a citizen, she knew that she had lied to immigration officials when seeking refugee status. Christopher Landau, representing Maslenjak, argued that because the government had not established that lie she told, regarding her husband’s service in the Bosnian Serb military, was “material” to the granting of citizenship,  it should not cause her to be stripped of her citizenship.

Robert Barnes of the Washington Post provided a particularly detailed summary of the argument, in which the justices appeared skeptical of the government’s position, noting that Justice Kennedy criticized the government’s position for “demeaning the priceless value of citizenship.” Barnes then summarized an amusing, but important, discussion:

[T]he Justice Department lawyer said that because “naturalization is the highest privilege the United States can bestow upon on individual,” Congress has required that individuals “scrupulously comply with every rule governing the naturalization process.”

Roberts, who had asked no questions of Landau, lay in wait.

The chief justice noted that question 22 on the naturalization form asked “Have you ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested?”

Roberts then confessed: “Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone.” There was laughter in the courtroom and more confessions followed.

His point, the Chief Justice explained, was “that if he was in an immigrant’s position and had answered ‘no’ on question 22, ‘20 years after I was naturalized as a citizen, you can knock on my door and say, “Guess what, you’re not an American citizen after all.” ’ ”

On Monday, the Court started its week with two habeas cases. The first was McWilliams v. Dunn, which analyzed whether the experts assisting indigent defendants in their defense must be independent of the case’s prosecution under Ake v. Oklahoma. Attorney Stephen Bright arguing for James McWilliams, argued that his client’s clearly established constitutional rights under Ake were violated when an Alabama judge denied his plea to consult with an independent psychiatrist. Adam Liptak of the New York Times discusses the highlights of the McWilliams arguments and the justices’ apparent disagreement with how to read Ake. And the Atlanta Journal-Constitution profiles Stephen Bright, who is stepping down from the Southern Center for Human Rights, which he took over in 1982. McWilliams was Bright’s fourth argument before the Court, and he prevailed in the other three, all of which were also death penalty cases.

Also on Monday, the Court heard Davila v. Davis, which asks whether the Court’s precedent that ineffective state habeas counsel can overcome the procedural default of an ineffective assistance of trial claim should also apply to the procedural default of claims of ineffective assistance of appellate counsel. Attorney Seth Kretzer argued that the Court should excuse Erick Davila’s failure to raise the ineffectiveness of his appellate lawyer in a post-conviction proceeding because of the ineffectiveness of Davila’s post-conviction lawyer. Texas Solicitor General Scott Keller said that for the Court to hold that such a failure is excusable on those grounds would “have a huge systemic cost by opening up the entire trial and everything that happened at trial to Federal habeas review.”

On Tuesday the Court heard cases involving jurisdiction. In Bristol-Myers Squibb Co. v. Superior Court of California, they are considering whether a plaintiff’s claims sufficiently arise out of, or relate to, a defendant’s forum activities to create specific jurisdiction when the plaintiff’s claims would be the same even if the defendant had no forum contacts. Neal Katyal, representing the pharmaceutical company, argued that state courts should not usually have jurisdiction over nonlocal claims involving nonresidents of the state. Thomas Goldstein, representing nonresident plaintiffs, argued that the company’s contacts with California residents should render the company vulnerable to a suit filed in that state. The company marketed across the nation. Both Katyal and Goldstein are particularly experienced and impressive Supreme Court advocates. Katyal was Acting Solicitor General for the Obama Administration after Justice Kagan’s appointment, and Goldstein is the founder and publisher of SCOTUSblog.

Also on Tuesday the Court heard arguments in BNSF Railway v. Tyrell. This case analyzes suits filed under the Federal Employers’ Liability Act and decides if a state court may decline to follow Daimler AG v. Bauman, which held that a state court cannot exercise personal jurisdiction over a defendant that is not “at home” in the forum state. Attorney Andrew Tulumello, representing the railroad, argued that the Montana law requiring a company to register in the state specifically states that such registration cannot be the sole basis of personal jurisdiction. Attorney Julie Murray, representing the plaintiffs, argued that when Congress passed the Act, it considered the mobile nature of rail work and therefore intended for rail workers to be allowed to sue in states where neither the worker nor the injury is connected.

On Wednesday, in addition to Malsenjak,  the Court heard arguments in Sandoz Inc. v. Amgen Inc., which presents technical questions involving requirements that companies give notice before marketing “biosimilar product” under the Biologics Price Competition and Innovation Act of 2009.  Bloomberg BNA offers more information about the case, here.

The Court issued only one opinion this week, in Lewis v. Clarke. There, the Court declined to extend sovereign immunity to a tribal employee in a case in which the employee, and not the Tribe, is the real party in interest. Todd Henderson provides more analysis at SCOTUSblog.

In other news, The Wall Street Journal and USA Today both take stock of Justice Gorsuch’s first two weeks on the bench.

The Week Ahead – April 24, 2017

This morning, the Court issued orders from the April 21 Conference, and convened to hear arguments in McWilliams v. Dunn and Davila v. Davis. The Order List was somewhat anticlimactic, as the Court did not grant any new cases. Many were expecting to see some grants now that Justice Gorsuch has joined the Court, but as it turned out, he did not participate in most of the orders, and several high profile cases remain pending. Among today’s denials of certiorari was Salazar-Limon v. City of Houston, in which a district court granted summary judgment to an officer who shot the plaintiff despite a disagreement between the plaintiff and the officer about exactly what happened. Justice Sotomayor, joined by Justice Ginsburg, dissented from the denial of certiorari, while Justice Alito, joined by Justice Thomas, wrote a brief opinion explaining that the case involved the kind of case-specific error-correction that the Court generally avoids. William Baude takes issue with Alito’s argument, here, and Amy Howe of SCOTUSblog has more on today’s Order List.

The issue in the first case being argued on Monday, McWilliams, is whether, following the Court’s holding in Ake v. Oklahoma, an indigent defendant is entitled to independent expert psychiatric assistance. In 1986, James McWilliams was tried and convicted of for the rape and murder of Patricia Reynolds. Before the sentencing hearing, the court appointed a psychiatrist who examined McWilliams and issued a report to the prosecution, the defense, and the court two days before the hearing. The Eleventh Circuit determined that McWilliams was given adequate expert assistance required by Ake, but McWilliams, in his appeal, contends that the assistance is only adequate if the expert is independent and reports only to the defendant. As Alan Blinder of the New York Times explains, the issue in McWilliams is also presented in two pending cases in Arkansas, where officials have been trying to carry out an unusually large number of executions in a short period of time before their supply of drugs expires. In the two cases that parallel McWilliams, both the Arkansas Supreme Court and SCOTUS have agreed that the executions should be stayed until that case is decided.

Davila concerns a plea for habeas relief filed by Erick Daniel Davila. Davila was convicted of capital murder in 2009. Davila lost his direct appeal in front of the Texas Court of Criminal Appeals and was then denied state habeas. He then filed for federal habeas relief, citing that he received ineffective counsel at the trial, appellate, and state habeas levels. The federal district court denied this claim, concluding that because Davila did not raise his claim of ineffective appellate counsel at the state habeas level, his federal claim was procedurally flawed, a holding that was affirmed by the Fifth Circuit. Davila appeals to the Court, arguing that precedent established in Martinez v. Ryan and Travino v. Thaler – that ineffective state habeas counsel can overcome the procedural default (failure to raise in state court) of an ineffective assistance of trial counsel claim – should also be applied to overcome the procedural default of an ineffective assistance of appellate counsel claim. In his article “Supreme Court to consider when a criminal defendant must pay with his life for his lawyer’s error,” Michael Dorf of Justia analyzes ineffective counsel law and precedent.

Tuesday’s theme is personal jurisdiction, as the Court will hear arguments in two cases concerning general and specific jurisdiction: Bristol-Myers Squibb Co. v. Superior Court of California and BNSF Railway Co. v. Tyrrell. The issue in Bristol-Myers Squibb Co. is whether 575 non-California residents (along with 86 California residents) are able to bring a class-action suit against Bristol-Myers Squibb (BMS) for injuries received from Plavix, a drug manufactured by BMS. Leslie Brueckner from the Legal Examiner provides a synopsis of the case here and describes the personal jurisdiction defense brought by BMS, which argues that it would be fundamentally unfair to bring the corporation into a jurisdiction that it had only a minimal connection to. She also describes an amicus brief (that she coauthored) filed by Public Justice on behalf of the plaintiffs, arguing “that there is nothing unfair about suing a national corporation in a state where it has aggressively marketed and sold massive numbers of defective products to an unsuspecting public, particularly where it was simultaneously being sued on identical claims by dozens of in-state residents. In fact, given the extent of Bristol Myers’ contacts with California, and the fact that it is has conceded jurisdiction over identical claims brought by in-state residents, the notion that it would be “unfair” to require the company to be “haled” into a California court on the plaintiffs’ claims is almost laughable.”

BNSF Railway Co. is another case about personal jurisdiction, and it comes from the Supreme Court of Montana. The issue is whether or not the state court can exercise personal jurisdiction over a defendant who is not at home in the forum state in a FELA suit filed against the defendant, contrary to the Court’s holding in Daimler AG v. Bauman. Will Baude, in an article for the Washington Post, describes a notable amicus brief filed by Professor Stephen Sachs, from Duke University School of Law. The brief urges the Court to rule solely on the statutory question in the case, and not the constitutional argument raised by BSNF, that FELA, as enacted in 1910, would allow state courts to exercise personal jurisdiction in a way that violated the Fourteenth Amendment. Baude describes the importance of briefs that urge the Court not to act, stating that they “perform an important service by trying to prevent bad precedent from being made or extended, especially in cases where that may not be the first priority of the parties and may not be obvious to the court. . . such briefs are more likely to be effective than briefs which ask the court to adopt an unargued academic theory, since they make the more modest request to ‘do no harm.’”

On Wednesday, the Court will hear arguments in Sandoz Inc. v. Amgen Inc. and Maslenjak v. United States. Sandoz Inc. is an intellectual property case that asks whether or not Sandoz properly complied with the notice requirement stipulated by the Biologics Price Competition and Innovation Act of 2009, and if the company did not, whether Amgen Inc. is entitled to damages, despite the fact that they are not alleging patent infringement. Sanya Sukduang and Jonathan R. Davies, partners at Finnegan, a large intellectual property firm, discuss Sandoz, Inc. and its impact on patenting biosimilar products, in a podcast here.

Maslenjak comes from the Sixth Circuit and concerns whether or not a naturalized American citizen can lose her citizenship in a criminal proceeding based on an immaterial false statement of fact. Divna Maslenjak and her family were granted refugee status following the Bosnian civil war, after Maslenjak told an immigration official that her family feared persecution in modern-day Bosnia because her husband, Ratko, had avoided being drafted into the Bosnian Serb militia. Maslenjak became a naturalized citizen in 2007, which is the same year that Ratko was convicted of making false statements during his immigration process, as he concealed the fact that he actually was an officer in the Serbian military during the same period that the Serbian military orchestrated a genocide against Bosnian Muslim civilians. Maslenjak was charged and convicted of naturalization fraud because of these false statements and was deported back to Serbia. In contrast to holdings in the 1st, 4th, 7th and 9th Circuits, the 6th Circuit affirmed Maslenjak’s conviction and concluded that the lower court was correct to strip her citizenship even though the false statements she provided were immaterial. Amy Howe of SCOTUSBlog provides an argument preview here, and describes other implications that the holding in this case might have for other immigrants. “The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years,” she write. “Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship.”

The Weekly Roundup – April 21, 2016

Having a full complement of justices can be a matter of life and death, as became clear this week. In Justice Gorsuch’s first vote as a Supreme Court Justice, he provided fifth vote to overturn a stay issued by the Eighth Circuit, thus allowing Arkansas to proceed with the first in a series of executions, which occurred last night. Before last night, Arkansas had not carried out an execution since 2005, but had decided to execute as many as eight men in an 11-day period because one of its execution drugs was nearing its expiration date. Ledell Lee was convicted of the 1995 murder of Debra Reese but had maintained his innocence. Among other arguments, his lawyers sought DNA testing that, they said, could exonerate him. Without Justice Gorsuch’s vote, the Court would have split 4-4, leaving the Eighth Circuit order in place. Justice Breyer issued a written dissent highlighting what he viewed as the arbitrariness of the execution. The New York Times reports here.

On Monday the Court heard arguments in three cases. In Perry v. Merit Systems Protection Board, the plaintiff, who was an employee of the Census Bureau, had complaints about his treatment and complained to the federal Merit System’s Protection Board (“MPSB”). His complaint included a discrimination claim, and the issue presented involves which court should review such an MPSB decision. Perry was the first case heard by Justice Neil Gorsuch on the Supreme Court, and many reported on his performance. Michael Doyle of McClatchy DC Bureau said that Gorsuch exuded “considerable self-confidence” and displayed a “seamless blend of preparation, persistence and humor.” The Justice asked his questions based with a textualist leaning, asking repeatedly why the Court should not just follow the plain text of the statute. Mark Joseph Stern of Slate.com provided a more critical review of Gorsuch’s performance and noted that at least two of his colleagues — Justices Alito and Kagan — seemed to think that his textualism would not be able to resolve the case.

Additionally on Monday, the Court heard arguments in Town of Chester v. Laroe Estates was also before the Court on Monday.  Former Chicago-Kent Law Professor Michael Scodro notes in Chicago Lawyer Magazine that this case will bring an end to a civil procedure question that has divided lower courts for years, whether or not Article III of the Constitution demands that third parties in a lawsuit must have their own standing to join the case. ISCOTUSnow discussed this case earlier this week, along with a third case argued on Monday, California Public Employees’ Retirement System v. ANZ Securities, Inc. ISCOTUSnow also discussed the two Tuesday cases — Kokesh v. Securities and Exchange Commission, and in Henson v. Santander Consumer USA, Inc. In Kokesh the Court will decide if the SEC can order defendants to return illegal profits that were taken over five years ago. In  Henson, the Court must decide if a company that buys debts but was not the original debtor considered a debt collector subject the Fair Debt Collection Practices Act.

Wrapping up the week’s arguments, on Wednesday the Court heard Trinity Lutheran Church v. Comer, and Weaver v. Massachusetts. Trinity involves the separation of church and state, making this case highly anticipated due to Justice Gorsuch’s prior rulings in favor of religious plaintiffs. The Court must decide if the Equal Protection Clause invalidates the Missouri Constitution’s prohibition of providing state funds to religious groups for secular purposes. According to Adam Liptak of the New York Times, the majority of the Court, including Justice Kagan seemed to favor the church. The final case for the week, Weaver, will determine if defendants must show prejudice in a claim of ineffective assistance of counsel that may have resulted in a structural error.

Also this week, the Court issued several opinions, although none of them were in cases that had garnered significant public attention. Most notably, on Wednesday, the Court ruled in Nelson v. Colorado, holding that the state must return fees paid by people who have had their convictions overturned without having to establish their innocence. That decision was 7-1, with only Justice Thomas dissenting. The other cases decided this week were Manrique v. United States, a 6-2 decision about the timing of notices of appeals from restitution orders, Goodyear Tire & Rubber Co. v. Haeger, in which the Court held 8-0 that a sanction for misconduct cannot require payment for fees not incurred as a result of that misconduct, and Coventry Health Care of Missouri, Inc. v. Nevils, an 8-0 decision holding that a federal law governing federal employees’ health insurance preempts state law. Justice Gorsuch did not participate in any of these decision.

In other news, Senator Chuck Grassley has predicted a Supreme Court vacancy as early as this summer. ABC News reported that the Senator expects one of the Justices to resign, as he stated an upcoming resignation is “rumored.”

And a correction: ISCOTUSnow reported Monday that Justice Gorsuch participated in last week’s Conference. But in fact, according to a footnote in Monday’s Order List, he did not. His first Conference is presumably today, and as SCOTUSblog reports, there are a host of important petitions awaiting his participation.

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The Week Ahead – April 17, 2017

The Court began the week by welcoming Associate Justice Neil Gorsuch to the bench. As Richard Wolf of USA Today reports, Gorsuch was not shy about asking questions, and his questions focused forcefully on the text of the statutes the Court was considering. On Monday, the Court also issued its Orders List from the first Conference that Justice Gorsuch participated in. [Correction: Justice Gorsuch did not in fact participate.] It did not issue any new grants of certiorari, and it denied certiorari in one closely watched case: Mickelson v. County of Ramsey, which challenged charging fees to people who have been arrested but not convicted. Once again, however, the Court did not act in Masterpiece Cakeshop, Ltd. v. Colorado Commission on Civil Rights, a case about the clash between a baker’s religious convictions and a state’s prohibition on discrimination on the basis of sexual orientation. ISCOTUSnow discussed Mickelson and Masterpiece Cakeshop here, along with several other cases the Court has yet to act on.

On Monday, the Court heard arguments in Perry v. Merit Systems Protection Board, Town of Chester v. Laroe Estates, Inc., and – in a rare afternoon session – California Public Employee’s Retirement System v. ANZ Securities, Inc. Perry addresses whether a Merit Systems Protection Board decision is subject to review in the district court or in the U.S. Court of Appeals for the Federal Circuit. Howard Wasserman in a USA Today article notes that this is the type of “detailed, procedural, one-off” opinion that is usually pawned off on the junior-most justice. Justice Gorsuch was particularly active in the questioning in this case, as SCOTUSblog reports

Town of Chester focuses on whether a party that does not itself have Article III standing may nonetheless intervene in a suit over which a federal court has jurisdiction. Neal Katyal of Hogan Lovells argued the case on behalf of the Town of Chester. Katyal, who served as Acting Solicitor General in the Obama Administration, supported Gorsuch’s nomination both by writing an op-ed in The New York Times entitled Why Liberals Should Back Neil Gorsuch and by introducing Gorsuch at his confirmation hearing. As a result of Katyal’s vocal support for Gorsuch’s confirmation, there was speculation about whether Gorsuch would recuse himself from Town of Chester, as the National Law Journal reported. Justice Gorsuch in fact stayed on the bench during the argument, although he did not ask Katyal any questions, according to USA Today.

Lastly on Monday, in California Public Employee’s Retirement Systems (CalPERS), the Court heard argument about the timely filing of class actions in securities cases. Alison Frankel of Reuters explains the background of the case, including delving into the differences between statutes of limitation and statutes of repose, and also reports on the “trash talking” that ensued among the advocates on either side before the argument.

On Tuesday, the Court will hear oral arguments in Kokesh v. Securities and Exchange Commission and Henson v. Santander Consumer USA, Inc. In Kokesh, the Court’s second securities case of the week, the Court will consider whether a five-year statute of limitations applies to claims for “disgorgement” sought by the SEC. Disgorgement is an action against a wrongdoer to return to the rightful owner whatever profits the wrongdoer gained in the course of the illegal activity. BloombergBNA discusses the case further, here. In Henson, the Court will decide what constitutes a “debt collector” for purposes of the Fair Debt Collection Practices Act (FDCPA). Lexology explains that the circuits are split on the issue, and how important this issue is to state debt collection and enforcement activity.

On Wednesday the Court will hear arguments in cases with less technical issues, Trinity Lutheran Church of Columbia, Inc. v. Comer and Weaver v. Massachusetts. Trinity stems from a challenge to Missouri’s denial of grant to resurface a daycare playground. The denial stems from a provision of the state constitution that prohibits state aid from going to religious institutions. The Church argues this is a violation of the Equal Protection Clause. Above the Law addresses how Judge Gorsuch, given his prior decisions about the separation between church and state, could affect this case. And the case presents a new procedural twist. Last week, the Missouri governor announced that the state would now allow churches to receive funds under the playground surfacing program. The Court ordered the parties to submit letter briefs about whether this decision moots the case by noon on the day before argument.

In Weaver, the Court will analyzes ineffective counsel, structural error, and prejudice. The case involves a criminal defendant whose lawyer failed to object to the public (including the defendant’s mother and other supporters) being excluded from the courtroom during jury selection. Normally, the denial of a public trial is considered a “structural error” and the defendant does not need to demonstrate that he was prejudiced to receive a new trial. Here, however, the defendant’s public-trial claim is nested within an ineffective assistance of counsel claim. To win a new trial for ineffective assistance of counsel, the defendant must show that he was prejudiced by his attorney’s ineffectiveness. The state and intermediate federal courts have split on whether prejudice must be shown where structural error is the underlying basis for an ineffectiveness claim. And aside from the core issue of this case, there is a question of what constitutes a “public trial,” and what happens if a courtroom cannot accommodate everyone who would like to observe? Rory Little of SCOTUSblog explores further.

Finally, the Court may release opinions on Tuesday and/or Wednesday this week, and it will meet for Conference on Friday.

Weekly Roundup – (delayed from) April 14, 2017

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On Monday, April 10, Neil Gorsuch was sworn in as the next associate Supreme Court justice, filling the seat of the late Justice Antonin Scalia which remained vacant for the past 422 days. ISCOTUSnow described the swearing-in ceremonies in the Week Ahead post here.

During the second ceremony, Gorsuch was sworn in by Justice Kennedy, for whom Gorsuch clerked in 1993. As Julie Hirschfield Davis of the New York Times notes, this is the first time in Supreme Court history that a sitting justice will serve alongside a justice who had previously served as his clerk, noting that “Justice Kennedy’s presence was symbolic personally for Justice Gorsuch” as he considers him a mentor. In an article for CNN, Joan Biskupic speculates as to when Justice Kennedy might retire, mentioning that he has privately hinted to close friends and former law clerks that he intends to retire in the next few years. Kennedy, appointed by Ronald Reagan in 1988, is a center-right justice who has joined the liberal voting bloc in several high-profile cases, including Obergefell v. Hodges, the case that legalized same-sex marriage and for which Kennedy penned the majority opinion. His departure from the Court would, as Biskupic describes, “be more momentous than the one filled on Monday after the February 13, 2016 death of rigid conservative Scalia. If President Donald Trump were to choose someone on the right-wing like Gorsuch to succeed Kennedy, the nation’s highest court would become significantly more conservative.”

Seung Min Kim of Politico addresses the fallout of the “nuclear option” triggered by Senate Republicans to secure Gorsuch’s confirmation. Kim quotes Sen. Ed Markey (D-Mass), who vowed to restore the 60-vote threshold formerly needed to break a filibuster on confirmation hearings for Supreme Court nominees should Democrats relinquish control of the Senate: “We will ensure that for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people who are nominated. Rather than just someone who passes a litmus test.” Kim suggests, however, that “[i]f history is any guide, Democrats are unlikely to actually revive that 60-vote threshold, particularly if they also win the White House along with the Senate majority [in 2020]. Though Republicans were enraged after Senate Democrats deployed the nuclear option in 2013 for all nominations other than the Supreme Court, the GOP chose to keep the lower threshold for nominees when they retook the Senate majority in 2014.”

On Wednesday, Terry Gross, in a segment of Fresh Air on NPR, discussed Leonard Leo, a conservative lawyer who has had extensive involvement in the selection of Justices Roberts, Alito, and Gorsuch. Gross interviewed Jeffrey Toobin, who profiled Leo in a recent article for the New Yorker titled “The Conservative Pipeline to the Supreme Court.” Leo is the executive vice- president of the Federalist Society, a nationwide organization of conservative lawyers that has been “very engaged in identifying and recruiting for judges candidates who are ultra-conservatives.” Toobin argues that “Gorsuch is likely to be only the first of Leo’s Trump Administration appointees: he is preparing for yet more vacancies on the Supreme Court, and also finding candidates for some of the hundred-plus vacancies on the lower courts, deepening his imprint on the judiciary.”

The Week Ahead – April 10, 2017

As of this morning, with the swearing in of Justice Neil Gorsuch, the Supreme Court is back to its full complement of nine justices. As The Los Angeles Times reports, Gorsuch had two swearing-in ceremonies. The first was a private ceremony at the Supreme Court, at which Chief Justice Roberts presided and, Mark Walsh of SCOTUSblog explains, at which Gorsuch took the constitutional oath. The second ceremony was in the White House Rose Garden, and Justice Kennedy — for whom Gorsuch clerked — administered the judicial oath. In a longer piece, Mark Walsh explains the difference between the oaths provides some background on the history of the oaths taken by Supreme Court justices.

Justice Gorsuch will not hear his first arguments until next week. The first cases that he will hear on the Court involve the legality of the exclusion of churches from state funding in Trinity Lutheran Church v. Comer, the Sixth Amendment, defendant’s rights, and inadequate counsel, the revocation of a naturalized citizen’s citizenship, and the proper timing of class action securities lawsuits. Check out Fox News for more details on these cases. USA Today and the Washington Post also provided articles on Gorsuch’s likely impact that will start next week. Gorsuch is not likely to upset the ideological balance of the court given the previous occupant of his seat was Justice Scalia, but he will bring the Court back in full swing now that there are nine justices in place and no worries of deadlocked decisions.

Justice Gorsuch does not even have until next week to get used to his new job. The justices meet for their next Conference on Thursday. Among the duties of the most junior justice is taking notes at Conference and — even more prosaically — answering the door. As Justice Kagan explained — to Gorsuch himself at a public interview last summer — this can happen because “you know, one of the justices forgot his glasses. The other justice forgot her cup of coffee.” And as Kagan also explained, the junior justice sits on the cafeteria committee.

There will also be serious business. As usual, SCOTUSblog identifies petitions worth watching that are listed for the next Conference. One such case is for a writ of certiorari is Dot Foods, Inc v. Department of Revenue for the State of Washington. Law360 describes the case, in which Dot Foods argues its due process rights were violated when it was stripped of its tax-exempt status due to a retroactive application of a Washington statutory amendment that regulated in state sales and commerce of out of state businesses.

Another case worth watching is Carpenter v. United States. As CATO Institute explains, this case involves the constitutionality of warrantless search and seizure of cell phone records under the Fourth Amendment. The plaintiffs were convicted of armed robberies and are appealing their conviction arguing that it violated the Fourth Amendment for the government to  use the cell phone records for information about their whereabouts.

Another case distributed for Thursday’s conference is Mickelson v. County of Ramsey. The issue in this case is whether it is a due process violation for the government to confiscate money from innocent people due to an arrest, and make them prove they are entitled to have it back. Adam Liptak of  The New York Times explains that Corey Statham was arrested and had his charges dismissed, but the county kept a portion of his confiscated money as a “booking fee.” A number of states bill people merely for being arrested and held in jail, and Statham’s attorney Michael A. Carvin argues that, “providing a profit motive to make arrests gives officers an incentive to make improper arrests.”  The issues in this case are similar (though not identical) to the civil forfeiture issues Justice Thomas recently highlighted in an opinion respecting the denial of certiorari.

Finally, the Supreme Court will be considering whether to grant cert in the repeatedly relisted Masterpiece Cake Shop, Ltd. v. Colorado Commission on Civil Rights, which addresses whether an antidiscrimination law can be constitutionally applied to a baker who makes wedding cakes but refuses to do so for same-sex couples for religious reasons. This is one case in which Gorsuch’s arrival could make a substantial difference, as CNN reports here.

Weekly Roundup – April 7, 2017

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The big news this week involved the Senate’s action on Judge Neil Gorsuch’s nomination to replace Justice Scalia. This morning, the Senate confirmed Gorsuch on a 55-45 vote. Three Democrats (Joe Donnelley of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia) joined all Republicans in voting yes. Roll Call reports that this voting breakdown means that Gorsuch received the smallest number of opposition party votes of anyone on the Court. Presumably, Gorsuch will be sworn in immediately and will join the Court next week to discuss cert petitions at Conference and on April 17 to hear oral argument. (The Court’s calendar is here.)

The Gorsuch nomination engendered a major procedural upheaval in the Senate — the so-called nuclear option. As The New York Times explained, after more than 41 Democrats voted against ending debate on the nomination — thus successfully maintaining a filibuster, which ordinarily can be ended only with at least 60 votes — the Republican-controlled Senate changed its rules so that only 51 votes are needed to end debate on a SCOTUS nomination. Although Democrats had made a similar rules-change during the Obama presidency for presidential executive-branch appointees and lower court judges, they had pointedly left the filibuster intact for SCOTUS nominations. On Thursday, on a straight party-line vote, the Republicans eliminated that supermajority requirement.

Not surprisingly, numerous commentators have weighed in on the likely effects of the Senate’s action on the Supreme Court going forward. ISCOTUS co-director Carolyn Shapiro argues that in the long run, eliminating the filibuster may allow Democrats to appoint more liberal justices. Others, like Scott Lemieux, predict an increasingly large conservative majority on SCOTUS. Jonathan Adler argues that because the absence of the filibuster will make it harder to stop a nomination, incentives to obstruct will decrease and presidents of both parties will be freer to nominate justices with less traditional resumes.

Although the Supreme Court did not hear argument this week, it did hand down two unanimous decisions on Monday. In Chief Justice Robert’s Dean v. United States opinion, the Court decided that a judge, when calculating the sentence for a predicate offense, does not have to ignore the fact that the defendant will serve mandatory minimums imposed under 18 U.S.C. § 924(c). The Court reversed and remanded a decision from the Eighth Circuit Court of Appeals that Levon Dean’s sentence of more than 33 years was reasonable. The Court reasoned that a) “sentencing courts have long enjoyed discretion in the sort of information they may consider when setting an appropriate sentence” and b) § 924(c) does not specify how long the sentences should be for predicate offenses nor does it specify what courts can consider when determining those sentences. Above the Law explores what prison time accomplishes and “when is enough enough?”

In McLane Co., Inc. v. Equal Employment Opportunity Commission, the Court held that a district court’s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. The Court reasoned three main conclusions: (1) reviewing for abuse of discretion is a “longstanding practice” of appeals courts, (2) district judges’ expertise is well suited to decide whether evidence sought is relevant to a specific charge or whether a subpoena is unduly burdensome in light of circumstances, and (3) deferential review will streamline the litigation process by freeing appellate courts from the obligation of reconsidering evidence and facts that district courts have already considered. The National Law Review discusses the case in more detail.

The Court also granted certiorari in two cases: Jesner v. Arab Bank, PLC and Ayestas v. Davis. The Court will likely revisit its 2013 Kiobel v. Royal Dutch Petroleum decision in order to decide if, under the Alien Tort Statute, corporations can be held liable for human rights violations, the New York Law Journal reports. In Ayestas, the Jurist explains that the Court will address a defendant’s right to federal funding for an expert for a habeas petition.