Judge Neil Gorsuch’s confirmation hearing began on Monday in front the Senate Judiciary Committee. ISCOTUS co-director Carolyn Shapiro is live tweeting much of the hearing, and you can follow her at @cshaplaw. ISCOTUSnow will also have regular posts throughout the week about the hearing. Monday’s session was devoted opening statements by the Senators and by Judge Gorsuch. Questioning will start on Tuesday.
This post addresses non-Gorsuch news. This week, the Supreme Court has oral arguments on Monday, Tuesday, and Wednesday and Conference on Friday. Monday morning, the Court issued its Orders List from its Conference this past Friday, but it granted no new cases.
On Monday the Court heard arguments in Howell v. Howell. Under a divorce decree, John Howell was required to pay his ex-wife half of his Military Rtirement Plan income. Subsequently, the VA found that he suffered from 20% disability due to a shoulder condition related to his service. As a result, he waived a portion of his retirement income to receive disability benefits instead. The state court ordered him to indemnify his ex-wife for the reduction in her income, but John argues that the federal law governing military retirement pay preempts this action. His disability caused a 20% reduction in his income, and in order to receive disability payments he had to take a cut in his retirement pay. The Court will have to determine if John is still required to pay his ex-wife the full portion of his retirement income agreed upon after their divorce even though that retirement income has been reduced due to his military service injury.
Also on Monday the Court heard argument in Murr v. Wisconsin, a case involving property rights and the Takings Clause of the Fifth Amendment. According to Ilya Somin of The Washington Post, this case “addresses a crucial question about when property owners are entitled to compensation under the Takings Clause.” The issue has to do with how to evaluate the burden of a regulatory taking when the property owner owns more than one parcel of land.
On Tuesday the Court will be hearing arguments in two cases involving big business. In Microsoft v. Baker, the plaintiffs sued Microsoft due to a defect in their Xbox 360, but the district court determined that a class action lawsuit could not take place because the defect affected only 0.4% of the video game consoles. The plaintiffs then dismissed their individual claims with prejudice and appealed the denial of class certification. The Ninth Circuit reversed. According to Law 360, Microsoft is arguing that the Court allowed the plaintiffs to do an “end-run around procedures” by allowing them to appeal a dismissal that they requested. On the other side, Professor Sergio Campos of the University of Miami School of Law noted that “class actions are often necessary because no class member has a stake sufficient enough to bring an individual lawsuit. Earlier this Term, Carolyn Shapiro discussed SCOTUS’s class action jurisprudence (and this case in particular) after Justice Scalia’s death, here.
Additionally on Tuesday the Court will hear arguments involving patents and the printer toner cartridge refill industry in Impression Products, Inc. v. Lexmark International, Inc. Lexmark has a program that allows customers a discount on printer cartridges if they return them to Lexmark when they are empty. Impression Products, Inc. acquired some of the cartridges abroad after a third party converted them to be re-used in violation of Lexmark’s return program. Impression Products resold them in the United States. Impression is arguing that they did not infringe upon the patent because Lexmark granted the authority to resell them when it initially sold them. The Court of Appeals found in favor of Lexmark by holding that their initial sale did not “confer authority” to Impression to resell them. According to Adam Liptak of The New York Times, this case will determine how much control patent-holders have over their products once they are sold. The Obama administration to had urged the Supreme Court to hear this case, arguing that the Court has held for 150 years that once a patented product is sold patent laws do not “constrain the subsequent use or resale of that article.”
On Wednesday the Court will hear County of Los Angeles v. Mendez, in which the plaintiffs, a homeless couple, allege that the police violated their Fourth Amendment rights when they entered the shed where the couple was staying without a warrant or announcing their presence. Plaintiffs were shot by the police because they had a firearm in the shed, and whether or not they were moving the gun or pointing it at the officers is contested. The Ninth Circuit held that the police violated the plaintiff’s Fourth Amendment rights. But as SCOTUSblog explains, the case involves complex issues of qualified immunity, causation, and provocation, in the context of complex and disputed facts, and the briefing at times seems to confuse the issues. The decision of this case will determine if Los Angeles County will have to pay the plaintiffs four million dollars in damages for their injuries.
Finally, on Wednesday the Court will hear arguments in Water Splash, Inc. v. Menon. Water Splash sued a former employee, a Canadian citizen residing in Quebec, in Texas state court. The respondent was served by mail and did not respond, leading the trial court to grant a default judgment. The Texas Court of Appeals reversed the judgment, citing The Hague Service Convention treaty. The Supreme Court will have to determine if the treaty authorizes service of process by mail. Law 360 analyzes the history of the case, here.
Finally according to U.S. News, President Trump has vowed to appeal his revised travel ban to the Supreme Court if necessary after the ban has been challenged in both Hawaii and Maryland. In Hawaii, U.S. District Judge Derrick Watson stated “the executive order was issued with a purpose to disfavor a particular religion,” and issued a TRO, but the Trump administration argues that the ban is needed for national security. A district court judge in Maryland has also concluded that the order is likely unconstitutional as it was “intended to be a ban on Muslims,” and imposed a preliminary injunction on certain portions of the order. The government has filed notice of appeal from the Maryland case, and will be appealing to the Fourth Circuit.