Editor's Note :

Editor's Note :

On Monday we expect the Court to issue orders from its April 29 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. We will begin live-blogging at 9:25 a.m.

Thursday round-up

By on Apr 28, 2016 at 6:37 am

Yesterday the Court heard oral arguments in the challenge by former Virginia governor Bob McDonnell to his fraud convictions.  Molly Runkle rounded up early coverage for this blog, which included Lyle Denniston’s report for us.  I covered the oral argument for my own blog, with other coverage coming from NPR’s Nina Totenberg.

On Tuesday, the Court issued its decision in Heffernan v. City of Paterson, holding that, when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee can challenge that demotion even if the employer’s actions are based on a factual mistake about the employee’s behavior.  Coverage comes from NorthJersey.com, with commentary from Lisa Soronen at Appellate Practice Blog. Continue reading »

Posted in Round-up
 
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In its Conference of April 29, 2016, the Court will consider petitions involving issues such as whether, for federal habeas purposes, California’s procedural rule generally barring review of claims that were available but not raised on direct appeal is an “adequate” state-law ground for rejection of a claim; the appropriate test to determine when a feature of a useful article is protectable under Section 101 of the Copyright Act; and whether execution of a condemned individual more than three-and-a-half decades after the imposition of a death sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

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This morning the Court heard oral argument in McDonnell v. United States, the challenge by former Virginia governor Robert McDonnell to his fraud convictions. Lyle Denniston covered the argument for this blog, while Mark Walsh has our “view” from the Court.

Other early coverage of the argument comes from Pete Williams of NBC News, Lydia Wheeler of The Hill, Ariane de Vogue of CNN, Adam Liptak of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin of The Wall Street Journal, Robert Barnes and Laura Vozzella of The Washington Post, David G. Savage of the Los Angeles Times, Josh Gerstein of Politico, Greg Stohr of Bloomberg, Cristian Farias of The Huffington Post, and Sam Hananel of the Associated Press.

Early commentary comes from Amitai Etzioni for Huffington Post, Mark Joseph Stern of Slate, and Rick Hasen at his Election Law Blog.

 
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It’s the last day of oral argument for the Term, and the Court has one big case to deal with: McDonnell v. United States, about whether “official action” under the relevant federal fraud statutes is limited to exercising actual government power, or pressuring others to exercise such power, and related questions.

The petitioner, former Virginia governor Robert F. McDonnell, was convicted of various counts of “honest services” wire fraud, conspiracy to obtain property of official right, and obtaining property under color of official right. He was sentenced to twenty-four months in prison, but is free while this appeal is pending.

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Analysis

When a government criminal case looks like it may collapse from more than one legal weakness, maybe the only challenge to the Supreme Court is to pick the one that limits the damage for prosecutors.   That was the prospect on Wednesday as the Court — in the final hearing of the current Term — spent an hour pondering ways that it could scuttle the high-profile public corruption verdict against former Virginia governor Robert F. McDonnell — as he and his wife sat silently in the second row of spectators.

With Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Anthony M. Kennedy energetically taking apart the verdict — and, with it, the laws used by the prosecution — the prospect of imminent prison for McDonnell appeared to have visibly lifted.  At a minimum, a new trial for him seemed in store, but there also was a more significant chance that the Court would make it considerably harder to build a new case against him and, in general, to prosecute other public officials for doing favors for benefactors.

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Argument transcript

By on Apr 27, 2016 at 1:09 pm

The transcript in McDonnell v. United States is here.

Posted in Merits Cases
 
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Here’s a question for you, Supreme Court fans. What’s more intimidating than arguing before the United States Supreme Court? Answer: explaining to a Supreme Court Justice that she doesn’t understand one of her own majority opinions. Yet that was precisely the situation Assistant to the Solicitor General Nicole A. Saharsky found herself in during Tuesday morning’s oral argument in Mathis v. United States. And she did not blink.

The Justice was Elena Kagan, and the majority opinion she authored was in Descamps v. United States. In Descamps, the Court ruled, by a vote of eight to one, that a federal district court could not use something called the “modified categorical approach” (MCA) to unlock the facts underlying a California burglary conviction in order to determine whether it was a “violent felony” under a federal three-strikes statute. The MCA could not be used, Justice Kagan explained, because the California burglary statute was “indivisible” – that is, it contained a single unitary set of elements.

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Wednesday round-up

By on Apr 27, 2016 at 6:19 am

Today the Court will hear oral arguments in the challenge by former Virginia governor Bob McDonnell to his fraud convictions.  Lyle Denniston previewed the case for this blog; other coverage comes from NPR’s Nina Totenberg, David Savage of the Los Angeles Times, and law student Ben Einhouse for Cornell’s Legal Information Institute.  Commentary comes from Garrett Epps, who in his column for The Atlantic argues that the “disgraced ex-governor is asking the Court to expand the First Amendment—already stretched beyond recognition by its application to the open use of money in politics—into a safeguard for any elected officeholder canny enough to disguise ever-so-slightly the exchange of money for favors.” Continue reading »

Posted in Round-up
 
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Petition of the day

By on Apr 26, 2016 at 11:00 pm

The petition of the day is:

15-1251

Issue: Whether the precondition in 5 U.S.C. 3345(b)(1) on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, requiring that a person who is nominated to fill a vacant office that is subject to the Federal Vacancies Reform Act may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy, applies only to first assistants who take office under subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under subsections (a)(2) and (a)(3).

 
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In what reads like a brisk fifty-two-minute argument this morning, the Justices seemed inclined – but not certain – to accept, in Dietz v. Bouldin, some limited authority for federal judges to recall a “discharged” jury. Such a ruling, however, seems likely to be hedged with “not this case” qualifiers, in a manner akin to case-by-case development of the common law. “Only a short time later,” “no actual or even probable prejudice,” and “be more careful in criminal cases” seem likely candidates for limitation.

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