At 10 a.m. Tuesday, the Supreme Court will hold ninety minutes of oral argument on two joined cases, testing the federal government’s authority to require states to take action to prevent their air pollution from fouling the air in neighboring states. Defending the Environmental Protection Agency’s authority will be Deputy U.S. Solicitor General Malcolm L. Stewart, with forty-five minutes of time. Arguing against the EPA will be Jonathan F. Mitchell, Texas’s state solicitor general, for state and local government parties, with twenty minutes, and Peter D. Keisler, of the Washington, D.C., office of the Sidley Austin law firm, for industry and labor parties, with twenty-five minutes. The cases are EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation.
It is an undeniable fact of nature that polluted air, made dirty in one place by human activity, is carried by the wind to other places. But it is a myth that the pollution is always scattered in only one direction — upwind to downwind. The scientific reality is that polluted air swirls around, in several directions, so it is not easy to figure out just where it came from.
That is the puzzle that Congress and the federal government have been trying to figure out for most of the history of the Clean Air Act, at least for the past half-century. The Environmental Protection Agency’s most recent effort to sort that out — never put into effect and ultimately nullified by a federal appeals court — is now up for review by the Supreme Court.
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The petition of the day is:
Issue: (1) Whether, when law enforcement officers provide Miranda v. Arizona warnings prior to conducting a voluntary, noncustodial interview, they must cease all questioning if the interview subject subsequently expresses a desire to stop the interview, or whether the officers may continue the questioning without violating any constitutional requirements; and (2) whether, if what concededly began as a voluntary, noncustodial interview by police arguably becomes a custodial situation, the fact of “custody” alone makes any subsequently obtained confession involuntary, or must a court employ a “totality of the circumstances” analysis, with custody simply being one factor.
Oyez has posted the argument audio in this week’s cases. The Court heard arguments this week in:
The Court has let the parties know that it has accepted their suggestion that the parties in the Hobby Lobby and Conestoga cases not be realigned for purposes of briefing. So the petitioners and respondents will file their briefs in the ordinary course. One important exception to the ordinary schedule — also proposed by the parties — is that amicus briefs supporting either party are due together on January 28, 2014.
Renewing its recent fascination with the kinds of inventions that can be patented, the Supreme Court on Friday agreed to clarify when an analytical method implemented by a computer or by a link on the Internet is eligible for monopoly protection. This was the only new case granted. The Court will be reviewing a widely splintered decision by the U.S. Court of Appeals for the Federal Circuit, in the case of Alice Corporation Pty. Ltd. v. CLS Bank International (docket 13-298). The en banc Federal Circuit found the method at issue ineligible for a patent, but a majority could not agree on a standard for making such decisions.
The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The Justices have dealt with that issue several times in recent years.
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Jordan Steiker is the Judge Robert M. Parker Chair in Law and the Director of the Capital Punishment Center at the University of Texas School of Law.
The Supreme Court is still wrestling with the significance of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in terms of limiting the role of federal courts in reviewing constitutional claims adjudicated on their merits in state courts. Section 2254(d) permits relief only if a state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In yet another AEDPA case, White v. Woodall, the U.S. Court of Appeals for the Sixth Circuit reversed the death sentence of a state inmate who was denied a “no-adverse-inference” instruction when he chose not to testify at the punishment phase of his capital trial. The dissenting judge on the panel insisted that Supreme Court decisions protecting the right against self-incrimination had not clearly established a defendant’s right to such an instruction in the particular circumstances of this case. Moreover, she claimed that if denying such an instruction amounted to error, the error should have been deemed harmless. The state presented both of these arguments on certiorari, asking the Court to reinforce the limitations AEDPA imposes on federal habeas enforcement of constitutional norms.
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At the Constitutional Accountability Center’s Text and History blog, Tom Donnelly provides six reasons to “keep an eye on” next week’s oral arguments in EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation, a challenge to the EPA’s interstate air pollution rule. As Lyle Denniston reported yesterday for this blog, the Court has expanded the oral argument time for the consolidated cases, from sixty to ninety minutes total. Continue reading »
The petition of the day is:
Issue: (1) Whether the Third Circuit is correct in its view that the “single event or occurrence exception” to “mass actions” under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(11)(B)(ii)(I), applies when the record merely “demonstrates circumstances that share some commonality and persist over a period of time” such as forty years of alleged releases by different owners, of different materials by different mechanisms – or the Ninth Circuit is correct in its view that it applies only in “cases involving a single event or occurrence, such as an environmental accident;” and (2) whether the Third Circuit incorrectly assigned the burden with regard to such an exception to the petitioner.