Editor's Note :

Editor's Note :

We expect orders from the February 24 conference on Monday at 9:30 a.m. There is a possibility of opinions on Wednesday, March 1.

There were some special guests in the courtroom on Wednesday. Ivanka Trump, the daughter of President Donald Trump, was in attendance in the VIP section with one of her daughters and an adult friend or care-giver.

Trump was present for the oral argument in Kindred Nursing Centers L.P. v. Clark, a somewhat dry case about arbitration agreements between nursing homes and patients. Before the argument, however, Trump and her daughter got to hear the justices announce opinions in three cases, about service dogs for students with disabilities, patents for multicomponent inventions, and race considerations and the death penalty.

Ivanka Trump and daughter seated in the Supreme Court (Art Lien)

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Tuesday’s argument in McLane v. Equal Employment Opportunity Commission gave the justices an opportunity to consider in detail the role of federal district courts in policing EEOC subpoenas. Justice Stephen Breyer did so in the most clear terms: “I mean, that’s what judges are there for in the district courts,” he stated, implying that district courts should be given leeway in order to rein in agency fishing expeditions.

But much of the argument concerned whether the EEOC subpoena under review was a fishing expedition at all. In relevant part, that subpoena sought “pedigree information” – names and contact information for employees whom McLane required to take a strength test as a condition of employment – in connection with a charge that McLane’s use of the test constituted sex discrimination. The district court had held that the pedigree information was not yet relevant to the charge under investigation, but the U.S. Court of Appeals for the 9th Circuit applied de novo review to conclude that the district court construed “relevance” too narrowly, and that McLane should have been required to produce the information.

Allyson N. Ho for petitioner (Art Lien)

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

Posted in Live
 
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Wednesday round-up

By on Feb 22, 2017 at 6:53 am

The justices will hear oral argument this morning in Kindred Nursing Centers Limited Partnership v. Clark, which asks whether the Federal Arbitration Act pre-empts a state-law contract rule that requires a power of attorney to refer expressly to arbitration agreements before an attorney-in-fact can bind her principal to such an agreement. Ronald Mann previewed the case for this blog. Another preview comes from Liza Carens and Jenna Scoville at Cornell University Law School’s Legal Information Institute.

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Posted in Round-up
 
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Petition of the day

By on Feb 21, 2017 at 11:23 pm

The petition of the day is:

16-810

Issues: (1) Whether funds forfeited pursuant to a criminal conviction are deductible in cases in which such forfeited funds (in contrast with a simultaneously imposed punitive fine) are earmarked and used to compensate victims of the underlying criminal offense; and (2) whether the U.S. Court of Appeals for the Federal Circuit’s holding in this case that such forfeited funds are not deductible conflicts with the U.S. Court of Appeals for the 2nd Circuit’s holding in Stephens v. Commissioner of Internal Revenue and the U.S. Court of Appeals for the 1st Circuit’s holding in Fresenius Medical Care Holdings, Inc. v. United States.

 
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Last week the court released its calendar for the April sitting, the final two-week session in which the justices are scheduled to hear oral arguments during the 2016-2017 term. With a full calendar (and then some) for April, and three cases that were granted in January carried over to the fall, it was not altogether surprising that the justices granted only one new case when they returned from their winter recess today. That case, Class v. United States, raises an interesting question about a criminal defendant’s right to appeal after he has pleaded guilty. But perhaps the most noteworthy development on today’s order list was a lengthy and impassioned dissent, by Justice Sonia Sotomayor, from the court’s decision not to review a challenge to Alabama’s lethal-injection protocol.

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At today’s oral argument in Hernández v. Mesa, the latest chapter in a Mexican family’s effort to hold a U.S. Border Patrol agent liable for the fatal shooting, on Mexican soil, of their 15-year-old son, some of the justices appeared “sympathetic,” as Justice Stephen Breyer put it, to the family’s plight. But at the same time, even the justices who might be predisposed to support the family struggled to articulate a rule that would allow the family’s lawsuit to go forward without also permitting a wide variety of other – perhaps less sympathetic – cases, and they seemed frustrated by the family’s inability to identify such a rule. In the end, though, it’s not clear that the rule will matter, if the justices don’t agree that the Border Patrol agent can be sued in federal court at all.

Robert C. Hilliard arguing for petitioners (Art Lien)

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Argument transcripts

By on Feb 21, 2017 at 2:09 pm

The transcript in Hernández v. Mesa is available here; the transcript in McLane Co. v. EEOC is available here.

Posted in Merits Cases
 
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It has now been more than 12 years since the Supreme Court’s landmark opinion in United States v. Booker recast the federal sentencing guidelines as “effectively advisory.” In subsequent cases, the court has clarified and reiterated the breadth of district-judge sentencing discretion within an advisory-guideline system. But on February 28, the court will confront whether mandatory statutory gun-sentencing provisions may limit a district court’s post-Booker sentencing discretion. In Dean v. United States, the justices will decide whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.

Like many federal defendants, petitioner Levon Dean is not a particularly sympathetic character. In April 2013, Dean (along with various others, including his brother) robbed alleged drug dealers of drugs and other property in Sioux City, Iowa. In each of these robberies, Dean and his brother utilized a modified .22-caliber semiautomatic Mossberg rifle to threaten, intimidate and batter their victims.

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Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government’s effort to remove a lawful permanent resident for a “sex crime.”

360px-u-s-_immigration_and_customs_enforcement_ice_logo-svg

The facts of the case sound like an episode of “Law and Order SVU.” In 2000, Juan Esquivel-Quintana’s parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person “under the age of 18 years” when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years’ probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.

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