After the Supreme Court justices met in Conference on October 26, the Court  called for the views of the Solicitor General in two cases. In Swartz v. Rodriguez, the Court is asking the Solicitor General to weigh in on issues relating to an implied remedy for damages and qualified immunity where a United States border patrol agent fired shots across the Mexican border amd killed a Mexican citizen. The Court considered these issues in an earlier case, Hernandez v. Mesa, which was argued in February 2017, but it did not resolve the legal issues. Instead, it remanded Hernandez to the lower court to reconsider in light of another decision, Ziglar v. Abbasi, narrowing the circumstances under which federal officials can be sued for constitutional violations. (ISCOTUSnow discussed Hernandez here and here, and Ziglar here.)  In the second case, Ariosa Diagnostics v. Illumina, the Court is asking the Solicitor General to weigh in on questions of law in circumstances in which a patent is voided because of someone else’s past disclosure of an invention to the Patent and Trademark Office.

The Court also denied review in a capital case, Townes v. Alabama, In Townes, two court reporters certified two different transcripts that differed by one word in the instructions, whether they “may infer his intent to kill” or “must infer his intent to kill.” The “may” instruction is constitutional, while the “must” instruction would have been a violation of Townes’ right to due process. Justice Sotomayor wrote a statement criticising the trial court’s failure to preserve the original recording of the jury instructions in Townes’ trial resulting in a capital murder conviction. She wrote: “Because Townes has not shown that the procedures below amount to constitutional error, I must vote to deny his petition for certiorari. I write separately because the trial court’s failure to preserve the original recording gives cause for deep concern.” Courthouse News has more on the case and Justice Sotomayor’s statement here. Criticism of the Court’s denial can be found here.

Finally, the Court granted cert in three cases. In Return Mail Inc. v. United States Postal Service, the Court is being asked to consider whether the government qualifies as a “person” under the Leahy-Smith America Invents Act (AIA), and can therefore petition to institute review proceedings under the AIA. In Mission Product Holdings Inc. v. Tempnology, LLC, the Court is being asked to consider whether a debtor-licensor’s rejection of a license agreement, which is a breach of contract under the Bankruptcy Code, terminates the rights of a licensee, when those rights would survive that breach under the relevant non-bankruptcy law. In United States v. Haymond, the Court is being asked to consider whether the 10th Circuit erred in holding the portions of 18 U.S.C. §3583(k) that required the district court to revoke Haymond’s ten-year supervised release and impose a 5-year sentence upon finding that he knowingly possessed child pornography by a preponderance of the evidence, are “unconstitutional and unenforceable.” The Court denied mandamus in two cases and denied cert in 210 cases.

Written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.