The Week Ahead — February 27, 2017

This week the Supreme Court will be hearing oral arguments in three cases. On Monday, the Court will hear argument in Packingham v. North Carolina, and Esquivel-Quintana v. Sessions. At the center of Packingham is the constitutionality of a North Carolina statute that prohibits registered sex offenders from using websites that allow users to communicate and exchange information if such websites allow minors to have accounts. The statute makes violation a felony. Packingham, who is arguing that law violates his First Amendment rights, was arrested in 2010 after writing a post on Facebook thanking God for the dismissal of a parking ticket. The statute was enacted to protect minors from sexual predators and the North Carolina Supreme Court held that it was not a restriction of free speech, but a “limitation on conduct.” In an unusual pairing, the ACLU and The Cato Institute filed a joint amicus brief in support of Packingham. They argue that the law is both unconstitutionally overbroad and vague, and it could be understood to restrict access to websites like The New York Times, Amazon, and Wikipedia.

In Esquivel-Quintana, the issue for the Court to decide is whether “unlawful sexual intercourse with a minor” under California law necessarily constitutes an aggravated felony of “sexual abuse of a minor” and therefore provides the basis for mandatory deportation of any immigrant convicted of that crime. Juan Esquivel-Quintana pled guilty to unlawful sexual intercourse with a minor in California. The Department of Homeland Security started removal proceedings against him under the Immigration and Nationality Act which states that “a non-citizen may be removed from the United States if he is convicted of an aggravated felony such as sexual abuse of a minor.” According to Law 360, Esquivel-Quintana is arguing that as a matter of construing the federal immigration statute, “sexual abuse of a minor” does not include “consensual sex between a 21-year-old and someone who is almost 18.”

The third case for argument this week, is Dean v. U.S., which involves the scope of a district court’s sentencing discretion for convictions in cases involving possession of a firearm in furtherance of a violent crime under 18 U.S.C. § 924(c). The technical issue involves the interaction of the Supreme Court’s decision in Pepper v. United States—holding that a judge can adjust sentencing guidelines downward if the defendant is rehabilitated after his initial sentencing—with a series of Eighth Circuit opinions that limit the district court’s discretion. Dean was given a 400-month sentence for possession of a firearm in furtherance of a violent crime under the Hobbs Act after robbing two drug dealers at gunpoint. Had he not been convicted under the Act, his sentence would have been 84-105 months.

In other news this week, the Supreme Court clerk’s office reprimanded the attorneys who submitted several amicus briefs filed in support of the school district in Gloucester County School Board v. G.G., the case about transgender student’s bathroom access. The caption on those briefs referred to G.G. as “her,” rather than “him.” (Because G.G. is a minor, his formal party status is “G.G., by his next friend and mother, Dierdre Grimm,” which is how the caption of the case reads in the Supreme Court.) These caption changes were not errors; they are consistent with the amici’s views about the case. Mark Joseph Stern, who covers legal and LGBTQ issues for, noticed the miscaptioned briefs and brought them to the Clerk’s Office’s attention.

Return to ISCOTUS midweek for the latest news on Judge Gorsuch in our weekly installment of The Gorsuch Report.


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