Editor's Note :

Editor's Note :

On Monday morning the court hears oral argument in Lucia v. Securities and Exchange Commission. Ronald Mann has our preview.
On Monday morning the court also hears oral argument in Pereira v. Sessions. Jennifer Chacon has our preview.
On Monday afternoon the court hears oral argument in Chavez-Meza v. United States. Susan Klein has our preview.

Briefly Mentioned :

Briefly Noted :

The Supreme Court will release orders from the April 20 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.

Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

Posted in Merits Cases
 
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SCOTUS Map: April 2018

By on Apr 20, 2018 at 12:30 pm

Could Justices Sonia Sotomayor and Clarence Thomas be the new Scalia/Ginsburg? At an April 3 lecture at Vanderbilt Law, Sotomayor mused that Thomas was the justice “with whom I probably disagree the most.” However, The Tennessean quoted Sotomayor as saying, “I can stand here and say that I just love the man as a person.” Additional coverage comes from Vanderbilt University News.

The next day, Sotomayor gave remarks at NYU Law’s new Guarini Institute for Global Legal Studies, sharing the stage with a former justice of the Constitutional Court of South Africa. NYU has coverage of the event and video online.

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Friday round-up

By on Apr 20, 2018 at 7:22 am

At AL.com, Kent Faulk reports that “Alabama on Thursday night executed 83-year-old Walter Leroy Moody for the 1989 pipe bombing death of a federal judge,” and that Moody “became the oldest inmate executed in the United States since the return of executions in the 1970s.” For The Washington Post, Mark Berman reports that “Moody unsuccessfully appealed to the U.S. Supreme Court on Thursday to stop the execution.”

Courtney Lollar analyzes Wednesday’s argument in Lagos v. United States, which asks whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under the Mandatory Victim Restitution Act, for this blog. At Law360 (subscription required), Jimmy Hoover reports that “[t]he federal government faced headwinds … while defending a roughly $16 million restitution order against a former trucking company CEO who defrauded General Electric Capital Corp., as various justices voiced skepticism that the CEO should have to pay GE’s pricey legal fees under a federal victim’s restitution law.”

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In its conference of April 20, 2018, the court will consider petitions involving issues such as whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause; and whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

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Petitions of the day

By on Apr 19, 2018 at 6:00 pm

The petition of the days are:

17-1284

Issue: Whether clearly established Eighth Amendment law permits prison officials to permanently deprive a prisoner in solitary confinement of outdoor exercise without a security rationale.

17-1289

Issue: Whether clearly established Eighth Amendment law permits prison officials to permanently deprive a prisoner in solitary confinement of outdoor exercise without a security rationale.

On Wednesday, April 25, the justices will take the bench for the final oral argument scheduled for this term. Fittingly, the case on their docket that day is one of the biggest of the year: Trump v. Hawaii, the challenge to the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries. The government contends that a ruling for the challengers would “hamstring” the president’s ability to conduct foreign relations and protect the national security; the challengers counter that allowing the so-called “travel ban” to stand will not only preclude over 150 million people, overwhelmingly Muslim, from coming to the United States, but it will also consolidate “breathtakingly vast” power in the executive branch.

The focus of the case is the order that Trump issued in September 2017, which limited travel from eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. That order followed two orders that are not directly before the Supreme Court next week, but that are also likely to play important roles in the oral argument.

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Relist Watch

By on Apr 19, 2018 at 3:38 pm

John Elwood reviews Monday’s relists.

April is a tricky time. By this late in the year, my skin is usually burned – although since I graduated from law school, that most often results from me setting the monitor contrast wrong. But there’s a new reason for my pallor this year. Under the new calendar – I’m talking here about the one that eliminated spring – it’s January 110th. On the plus side, I haven’t seen any mosquitoes yet.

There is enough action on the relist front this week that I’ll keep preliminaries to a minimum. This week saw the departure of what I believe to be the second-most relisted case of all time, Sykes v. United States, 16-9604, which leaves after 17(!) relists. It and the thrice-relisted Brown v. United States, 17-6344, both challenged Armed Career Criminal Act enhancements that rested on Missouri second-degree burglary convictions. The Supreme Court sent both back to the U.S. Court of Appeals for the 8th Circuit for further consideration in light of that court’s recent en banc decision holding that Missouri’s second-degree burglary statue is not a “violent felony” for ACCA purposes.

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The issue before the Supreme Court in Lagos v. United States is the interpretation of a restitution statute applied in tens of thousands of criminal sentencing hearings each year. The Mandatory Victim Restitution Act requires courts to impose restitution for victims of a large swath of enumerated federal crimes. Under the MVRA, found at 18 U.S.C. § 3553A, the court must order a criminal defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” The court spent part of yesterday morning grappling with how to construe that language. The petitioners argued for a narrow reading of the statute, while the federal government took an expansive approach. In the absence of any specific legislative history giving guidance as to how to interpret these words, the justices appeared to lean somewhere between the two extremes.

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In yesterday’s oral argument in Washington v. United States, the Supreme Court debated the scope of tribal fishing rights under 19th century treaties between the United States and northwest Indian tribes. In particular, were the lower courts correct that hundreds of the state of Washington’s under-road culverts, which obstruct salmon passage to some extent, violate the treaties? The dispute is a long-running one — so much so that it dates back to Justice Anthony Kennedy’s service on the U.S. Court of Appeals for the 9th Circuit, prompting his recusal from the case.

The eight justices who did participate in the argument focused largely on the correct standard for violations of the treaties. (As I explained in my argument preview, the case also presented two other questions related to remedies, but these were scarcely discussed.) The state of Washington, represented at the podium by the state’s solicitor general, Noah Purcell, argued that the state would violate the treaties if “a state barrier is causing a large decline in a particular river and … it’s not justified by substantial compelling interests.” In contrast, the federal government and the tribes, represented by Allon Kedem and William Jay, respectively, argued that the treaties are violated by a “substantial degradation” of the salmon population. For much of the argument, the justices pressed each of the litigants to provide more clarity about their respective tests.

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Thursday round-up

By on Apr 19, 2018 at 7:26 am

For the Tribune News Service (via Governing), Bob Egelko reports on Sessions v. Dimaya, in which the court ruled on Tuesday that a portion of the criminal-removal provision in the Immigration and Nationality Act is unconstitutionally vague. At Slate, Mark Joseph Stern observes that Dimaya “marked the first time Justice Ruth Bader Ginsburg assigned a majority opinion in her nearly 25 years on the high court.” At Reason’s Volokh Conspiracy blog, Jonathan Adler notes that Justice Neil Gorsuch’s separate opinion concurring in part and concurring in the judgment, “and Justice Thomas’ dissent, are the opening salvos in what promises to be an interesting intra-originalist debate over the proper scope and application of the ‘void for vagueness’ doctrine, and the extent to which this doctrine is part of an originalist understanding of Due Process.” At The Daily Caller, Kevin Daley explains that “[t]hough the particulars of this case dictated a progressive result, [Gorsuch’s] rationale emanates from conservative legal theories that, if applied, would dramatically circumscribe the growing power of federal bureaucrats.” At The New Republic, Matt Ford remarks that Gorsuch’s vote to strike down the provision was “the answer [the administration] should’ve expected when Trump promised to put another Scalia on the court.” The editorial board of The Wall Street Journal agrees that “[t]hough … Gorsuch joined the four liberals on an immigration case, his logic would have made the late Justice proud.” At the Harvard Law Review Blog, Leah Litman observes that “[t]he impact of the Dimaya decision is potentially enormous,” and cautions that “[w]hether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.” At the Sentencing Law and Policy Blog, Douglas Berman notes that “it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.”

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