Editor's Note :

Editor's Note :

There is a possibility of opinions on Wednesday, March 1.
On Tuesday the court hears oral argument in Dean v. United States. Douglas Berman has our preview.

Petition of the day

By on Feb 27, 2017 at 11:23 pm

The petition of the day is:


Issue: Whether an individual or entity need only provide “material services” to a foreign state sponsor of terrorism in order to qualify as its “agency or instrumentality“ under the Terrorism Risk Insurance Act of 2002, or whether the individual or entity must satisfy a stricter definition based on majority ownership or control by the foreign state, such as the definition of “agency or instrumentality” set forth in the Foreign Sovereign Immunities Act.

This morning, the Supreme Court heard arguments in Esquivel-Quintana v. Sessions, a case that arose from the U.S. government’s effort to remove a lawful permanent resident for a “sex crime.” Judging from today’s argument, the justices appeared closely divided on the question of statutory interpretation before the court.

When Juan Esquivel-Quintana was 20 years old, he was convicted under California law for having consensual sex with his then-16-year-old girlfriend. An “aggravated felony” conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an “aggravated felony” to include the “sexual abuse of a minor.” Claiming that Esquivel-Quintana’s conviction constituted an “aggravated felony,” the U.S. government initiated removal proceedings against him, and the immigration court ordered him removed from the United States. The Board of Immigration Appeals dismissed his appeal from the removal order. Applying the Supreme Court’s seminal 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc.,the U.S. Court of Appeals for the 6th Circuit deferred to the BIA’s interpretation of “sexual abuse of a minor” and upheld the removal order. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana’s conviction was not an aggravated felony.

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This morning the Supreme Court issued orders from last week’s private conference. The justices added three new cases to their merits docket for the next term, but – like last week – the most interesting development may have come in a death penalty case in which the court denied review. A week ago, it was Justice Sonia Sotomayor, joined by Justice Stephen Breyer, who filed a dissent from the denial of certiorari in a challenge to Alabama’s lethal-injection protocol. Today, Breyer wrote alone in noting that he would have granted review in the case of a Louisiana death row inmate who challenged the constitutionality of the death penalty more broadly.

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Argument transcripts

By on Feb 27, 2017 at 2:27 pm

The transcript in Packingham v. North Carolina is here; the transcript in Esquivel-Quintana v. Sessions is here.

Posted in Merits Cases

At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were “incredibly important parts” of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even “structure their civil community life” around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from “a very large part of the marketplace in ideas.” Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.

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Monday round-up

By on Feb 27, 2017 at 7:23 am

Today the court hears oral argument in two cases. The first is Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment. Amy Howe previewed the case for this blog. Another preview, by Nicholas Halliburton and Natalia San Juan, appears at Cornell University Law School’s Legal Information Institute. Additional coverage comes from Steven Nelson at U.S. News and World Report, Steven Mazie in The Economist and Lauren Russell and Nina Totenberg at NPR. At The Marshall Project, Andrew Cohen discusses the case, noting that “just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent.”

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Posted in Round-up

This week at the court

By on Feb 26, 2017 at 12:01 pm

The court issued orders from its February 24 conference on Monday. It granted certiorari in three cases. On Monday the court also heard oral argument in two cases. There is a possibility of opinions on Wednesday at 10 a.m. The court will also hear oral arguments on Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their March 3 conference; our list of “petitions to watch” for that conference will be available soon.


Petition of the day

By on Feb 24, 2017 at 11:23 pm

The petition of the day is:


Issues: (1) Whether the Federal Arbitration Act or the “federal policy favoring arbitration” requires courts to discriminate in favor of arbitration agreements; (2) whether the FAA requires courts to preempt neutral state laws that merely have a disproportionate impact on the enforcement of arbitration agreements; and (3) whether, if the answer to either question above is “yes,” that violates basic principles of federalism.

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

Posted in Everything Else

Neil Gorsuch the Law Clerk

By on Feb 24, 2017 at 2:51 pm

The case in front of Neil Gorsuch presented “an interesting constitutional question,” as he put it.

“Does [due process] require a ‘nexus’ between the United States and a non-resident alien to apply to him extraterritorially a federal criminal statute?” wrote Gorsuch, who is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court. “I recommend denial.”

The case of Martinez-Hidalgo v. United States came before Gorsuch not in his current job as a federal appeals court judge but as one of dozens of cert petitions he analyzed as a Supreme Court law clerk during the October 1993 term.

Gorsuch, 26 years old at the time, was a law clerk serving Justice Anthony Kennedy as well as retired Justice Byron White.

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