Editor's Note :

Editor's Note :

On Monday, we expect orders from the June 22 Conference at 9:30 a.m. and the final opinions of the term at 10 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

This week at the court

By on Jun 25, 2017 at 12:09 pm

The court will release its order list from the June 22 conference on Monday. The court will also release its final opinions of the October Term 2016 on Monday.
 
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Petition of the day

By on Jun 23, 2017 at 10:22 pm

The petition of the day is:

16-1231

Issues: (1) Whether, as a matter of statutory or constitutional law, liability under 18 U.S.C. 875(c) requires an analysis of whether a reasonable person would be threatened by the communication, or whether it is instead sufficient to examine whether a particular recipient, whether reasonable or not, would have considered it threatening; and (2) whether an erroneous pre-trial holding that the defendant’s subjective mental state is not an element of the crime, followed by jury instructions and government argument to the same effect, can be harmless error.

 
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Under the doctrine of regulatory takings, government regulation that goes “too far” in burdening property rights counts as a taking under the Fifth Amendment, entitling the owner to “just compensation.” In deciding such claims, courts often must deal with a tricky preliminary question: How should they define the bounds of the property that the government has allegedly taken? That question, often dubbed “the denominator problem,” could be outcome-determinative. For example, a regulatory burden on a small pond may seem minor if the property interest is defined as the developer’s much larger contiguous holdings, but severe if the property is defined as the pond itself. The court has long maintained that the denominator analysis must focus on the “parcel as a whole,” but that cryptic instruction has left litigants and lower courts at sea.

The parties in Murr v. Wisconsin offered the court three very different approaches to the denominator analysis. The case is interesting, and challenging, because each test would vindicate a slightly different view of the takings clause. As described in my earlier post, the Murrs argued that  a “merger” provision in state and local law — which barred them from selling separately their two undersized, riverfront lots — was a taking of the one lot they wished to sell. The Murrs urged a bright-line denominator test, hinging on the lot lines of the parcel alleged to be taken. This test would typically make it easier for landowners to assert takings. The state, arguing against a taking, offered a different bright-line test based on state law taken as a whole; here, the state’s merger provision would set the denominator as both lots together. The state’s test would offer the greatest deference to state prerogatives in defining property. Finally, the county (and in a similar vein, the United States as amicus) offered a multi-factor approach that would provide the least predictability, but the most flexibility to determine the interests of justice in any given case.

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The justices are expected to take the bench on Monday at 10 a.m. to issue opinions in argued cases. There are six decisions still outstanding, involving everything from cross-border shootings to the death penalty and public funding for playgrounds at religious preschools. To be sure, there is no guarantee that we will actually get opinions on the merits in all six of these cases: Three of the remaining cases were argued before Justice Neil Gorsuch took the bench in April, creating a not-insubstantial possibility that the justices are deadlocked. With Gorsuch now on the bench, the justices could order reargument in those three cases, which would presumably take place next fall. But we will know much more by the end of Monday morning. In any event, here is a brief summary of each of the six cases, organized by the sitting in which they were argued.

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Yesterday the Supreme Court sent the case of a Bosnian Serb woman who was stripped of her citizenship for lying to immigration officials back to the lower courts. The justices rejected the government’s argument that Divna Maslenjak could lose her citizenship simply by making false statements, no matter how trivial. Instead, the court ruled, Maslenjak’s lies can only be held against her if they would have mattered to immigration officials. Today the justices gave another immigrant, Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though his odds of winning at trial were low and he was likely to be deported anyway.

Chief Justice Roberts with opinion in Lee v. U.S. (Art Lien)

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Fridays are rare days for Supreme Court opinions, with the last one coming two years ago when the same-sex marriage ruling in Obergefell v. Hodges (and one other decision) was announced.

But with nine cases left to decide on this second bonus opinion day of the term, it seems possible that the court is aiming to finish its work by Monday. We’ll have our answer a little later.

The bar section is about as empty today as it was yesterday, with a handful of advocates present. Todd Gaziano of the Pacific Legal Foundation is here, awaiting a decision in Murr v. Wisconsin, a PLF case involving the takings clause. Jordan Lorence of the Alliance Defending Freedom is here, likely awaiting the decision in Trinity Lutheran Church of Columbia v. Comer. Arthur Spitzer, the legal director of the American Civil Liberties Union of Washington, D.C., is here, as he often is at the end of the term.

Justice Kennedy with opinion in Murr v. Wisconsin; Justices Alito and Thomas absent from bench (Art Lien)

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We live-blogged as the court released opinions. The transcript is available at this link.

Posted in Live
 
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Friday round-up

By on Jun 23, 2017 at 7:25 am

As the Supreme Court term draws to a close, the justices have stepped up their output, holding an extra session yesterday to release opinions in three cases. Mark Walsh provides a “view” from the courtroom for this blog. At Crime and Consequences, Kent Scheidegger notes that the “theme out of the United States Supreme Court [yesterday was] materiality.”

The first decision was in Maslenjak v. United States, in which the justices held that the government cannot denaturalize someone for making false statements that did not affect the decision to make her a citizen. Amy Howe has this blog’s argument analysis. At Reuters, Lawrence Hurley reports that the justices “rejected the Trump administration’s stance that the government should be able to revoke citizenship of people for even minor misstatements in the citizenship application process.” Additional coverage comes from Lydia Wheeler at The Hill and Robert Barnes at The Washington Post. At The Narrowest Grounds, Asher Steinberg takes issue with Justice Samuel Alito’s concurring opinion, responding to two hypotheticals Alito employs to demonstrate that “materiality need not be causal,” but rather that “the illegal act … need only have a natural tendency to influence whether one obtains naturalization, regardless of whether it does.”

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Posted in Round-up
 
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Petition of the day

By on Jun 22, 2017 at 10:23 pm

The petition of the day is:

16-1070

Issues: (1) Whether equity jurisdiction allows a private plaintiff to obtain an injunction for non-compliance with the Airport Noise and Capacity Act of 1990 against an airport that does not receive federal funds or impose passenger facility charges; and (2) whether ANCA pre-empts noise and access restrictions by all airports, including the many thousands of small airports nationwide that do not receive federal funds or impose passenger facility charges.

The justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

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