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.
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 »
The petition of the day is:
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).
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.
Heffernan v. City of Paterson reduces to a simple question: is “[d]emoting a dutiful son who aids his elderly, bedridden mother” merely callous? Or, when based on an erroneous factual belief about what the dutiful son was doing, does it also violate the First Amendment? Writing for a six-person majority, Justice Stephen Breyer concluded it is unconstitutional, granting at least a temporary victory, and an opportunity for further litigation, to demoted police officer Jeffrey Heffernan. Dissenting, Justice Clarence Thomas, joined by Justice Samuel Alito, insisted Heffernan’s demotion was merely callous and perhaps “misguided or wrong,” but not unconstitutional.
The oral argument yesterday in Cuozzo Speed Technologies v. Lee did not clarify much about the case, but it did suggest that the Justices will not be composing a paean to the deftness of congressional drafting. All who spoke seem mystified that Congress could pass such an important piece of legislation with no attention to some of the most basic questions that it poses for the courts and agency that must implement it.
The case involves “inter partes review,” a new procedure for dealing with dubious patents adopted in the 2011 Leahy-Smith America Invents Act. Instead of waiting for a court to resolve a suit attempting to enforce a dubious patent, a competitor can take the patent straight back to the Patent and Trademark Office (PTO) and institute a proceeding to have the patent cancelled there. The statute creates a new entity in the PTO, the Patent Trial and Appeal Board (PTAB) to rule on them.
We are live-blogging this morning as the Court issues opinions. Join us.
Monday morning was IP day at the Supreme Court. The double bill began with a case about attorney’s fee awards in copyright cases (Kirtsaeng v. John Wiley & Sons) and continued with a case about standards for invalidating patents (Cuozzo Speed Technologies v. Lee).
Kirtsaeng is the latest in a series of cases in which the Justices have considered vague statutes that give district courts discretion to award enhanced relief in intellectual property cases. The particular statute here, Section 505 of the Copyright Act, provides that a trial “court may . . . award a reasonable attorney’s fee to the prevailing party.” In this case, the lower courts refused to award defendant Supap Kirtsaeng fees, even though he successfully repulsed the efforts of publisher John Wiley to sue him for copyright infringement. Both of the lower courts justified their denial of attorney’s fees by pointing out how reasonable the publisher’s suit had been: the particular legal question was sufficiently difficult to make it to the Supreme Court, where three Justices agreed with the publisher on the merits.
The question before the Justices yesterday was whether it fairly implements a statute that offers so little guidance to erect a general rule that ordinarily bars the imposition of fees if the losing party’s position was reasonable. Kirtsaeng argues that the rule improperly elevates one single factor in a statute that should permit a much more generalized consideration of whether a fee award furthers the purposes of the Copyright Act. Framed in those terms, the Justices expressed little sympathy for Kirtsaeng’s position, criticizing it in turn as either unduly vague or insufficiently predictable. The comments of Justice Samuel Alito are illustrative: “That’s an awfully hard task for district judges to perform – ‘what will further the purposes of the Copyright Act’ or ‘what is the most faithful to the Copyright Act.’ District judges are going to see that very differently, and there won’t be any consistency if that’s what they are required to do or authorized to do.”