Weekly Roundup – April 17, 2015

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The Mormon Church, joined by several other religious organizations, has filed an amicus brief asking the Supreme Court not to recognize same-sex marriage as a constitutional right.

At SCOTUSblog, Michael Klarman provides an in-depth look at the history of the same-sex marriage movement and the evolution of constitutional law.

Chief Justice John Roberts and Justice Anthony Kennedy—the supreme rivalry that runs America?

In the New Yorker, Lincoln Caplan analyzes the history of the Court and the death penalty and argues that the Court is in a position to abolish it in an upcoming case.

A slightly imposing citizen showed up for jury duty in a Maryland court on Wednesday—that citizen being Chief Justice Roberts.

Since her retirement from the Court, former justice Sandra Day O’Connor has been working on what she calls her real legacy—a series of educational computer games known as iCivics, meant to teach children about civics, government, and the Constitution.

In The New York Times, Linda Greenhouse considers Justice John Paul Stevens’s legacy.

Justice Ruth Bader Ginsburg earns a spot on Time’s list of the 100 Most Influential People, with a profile written by Justice Antonin Scalia.

Weekly Roundup – April 10, 2015

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The Supreme Court will not hear an appeal from Alan Gross, a former U.S. government subcontractor who was imprisoned in Cuba for five years and is now seeking to sue the government for negligence.

Citing a violation of his Sixth Amendment right to counsel, George Huguely, who was convicted of second-degree murder, will take his case to the Supreme Court after his appeal was denied in Virginia.

In an address on Wednesday, President Obama commented on the King v. Burwell case, stating that it could be the “last gasp” of opponents fighting his health care legislation. He also urged the Court to consider the positive effect the legislation has had on the uninsured.

Adam Liptak reports on amicus briefs in the upcoming same-sex marriage case, submitted by both sides in the debate, asking the Court to consider the issue in light of laws from other countries. Liptak points out that the briefs are addressed mostly to one reader in particular—Justice Kennedy, who often cites to foreign law in his opinions.

Richard Socarides writes for The New Yorker on the coming Court ruling in the same-sex marriage case.

USA Today previews the upcoming Court case on lethal injection and highlights recent developments that point to a movement away from the death penalty in America.

Does U.S. law allow foreigners the right to sue companies under U.S. jurisdiction, even if the crimes committed occurred only partially within U.S. territory? The Court has the opportunity to take up the question next Friday as it considers a case involving the U.S. fruit company Chiquita, which has been convicted of sponsoring terrorism in Colombia.

Weekly Roundup – April 3, 2015

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.)

The Court ruled unanimously on Monday that the government’s use of a GPS tracking device on a person is a form of search and seizure, and thus a violation of the Fourth Amendment.

In a 5-4 decision on Tuesday, the Court ruled against developmental disability providers in Idaho, arguing that private companies cannot force Medicaid programs to raise reimbursement rates.

Should royalty fees go to a patent’s inventor even after that patent has expired? The Court appeared reluctant to go that route, which would overturn 50 years of precedent, in Tuesday’s Kimble v. Marvel.

In The New York Times, columnist Linda Greenhouse looks at the Supreme Court’s recent actions regarding the death penalty.

Fifteen states, including eight that allow same-sex marriage, filed a brief on Thursday urging the Court to uphold same-sex marriage bans.

Mary Bonauto, the attorney who won the nation’s first gay marriage lawsuit, will represent 35 petitioners from multiple states in the same-sex marriage case the Supreme Court will hear this month.

Passionate dissenting opinions can feel good in the moment, but they might also have a major, unintended consequence, according to Bloomberg’s Kimberly Ronbinson: bringing about the very thing the author is dissenting against.

NPR recounts the story of Maria Altmann, who fought her way to the Supreme Court in an effort to recover a Gustav Klimt painting of her aunt, which had been confiscated by the Nazis during World War II.

Predicting the Winners in Harris v. Viegelahn and Bullard v. Blue Hills Bank

The Supreme Court heard two bankruptcy cases on Wednesday. The first case, Harris v. Viegelahn, asks whether, when a debtor in good faith converts a bankruptcy case to Chapter 7 after confirmation of a Chapter 13 plan, undistributed funds held by the Chapter 13 trustee are refunded to the debtor (as the Third Circuit held in In re Michael), or distributed to creditors (as the Fifth Circuit held below).

Figure 1.

Slide1

As Figure 1 shows, the total question count favors the Respondent (Viegelahn), who received 12 fewer questions than the Petitioner (Harris).  The question count by Justice also favors the Respondent. Four Justices asked the Respondent fewer questions (Roberts, Scalia, Kennedy, Ginsburg).  Only two Justices asked the Petitioner fewer questions (Sotomayor and Kagan).  Justice Breyer asked each side the same number of questions.  Justices Alito and Thomas asked no questions.  Based on the question counts, I predict a victory for the Respondent (Viegelahn).

The second case, Bullard v. Blue HIlls Bank, asks whether an order denying confirmation of a bankruptcy plan is appealable.

Figure 2.

Slide2

As Figure 2 shows, the total question count favors the Respondent (Blue Hills Bank), which received 25 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Petitioner’s side had two attorneys arguing (which might inflate the question count somewhat), even the 12 question differential between just the Petitioner and the Respondent is significant (especially considering that Petitioner had 10 minutes less for oral argument).   The question count by Justice also favors the Respondent.  Five Justices asked the Respondent fewer questions (Roberts, Kennedy, Ginsburg, Breyer, Sotomayor).  Based on these numbers, I predict a victory for the Respondent (Blue Hills Bank).

Predicting the Winners in Commil v. Cisco and Kimble v. Marvel

The Supreme Court heard two oral arguments in patent cases on Tuesday.   I’m predicting the winners based on the method of counting up the number of questions.

The first case, Commil USA v. Cisco Systems, asks whether the Federal Circuit erred in holding that a defendant’s belief that a patent is invalid is a defense to induced infringement under 35 U.S.C. § 271(b).  Justice Breyer was recused.

Figure 1.

Slide1

As Figure 1 indicates, the total question count favors the Respondent (Cisco), which received 17 fewer questions than the Petitioner’s side (including the Solicitor General as amicus supporting the Petitioner).  Even discounting the fact that the Court might be inclined to ask both attorneys on the Petitioner’s side the same or similar questions (thus inflating the number of questions for the Petitioner’s side), I will go with a victory for the Respondent. It would be a rare recent affirmance of the Federal Circuit.

The second case, Kimble v. Marvel Enterprises, asks whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”

Slide2

As Figure 2 indicates, the total question count favors the Respondent (Marvel Enterprises), whose side (along with the Solicitor General supporting Respondent) received 8 fewer questions than the Petitioner.

The question count by Justice is more mixed.  Four Justices asked the Respondent’s side (with SG) more questions, but the margins were not great: Roberts (+5), Scalia (+2), Kennedy (+1), and Sotomayor (+1).  Three Justices asked the Petitioner’s side more questions: Ginsburg (+1), Breyer (+7), and Kagan (+11).  Justices Alito and Thomas asked no questions.

Even though the question count by Justice favors slightly the Petitioner, I predict a victory for the Respondent based on the total question count.