Editor's Note :

Editor's Note :

There is a possibility of opinions on Wednesday, January 18, at 10:00 a.m. We will begin live-blogging at this link at 9:45 a.m.
On Wednesday the court hears oral argument in Lee v. Tam. Amy Howe has our preview.
On Wednesday the court also hears oral argument in Ziglar v. Abbasi. Amy Howe has our preview.

Next Tuesday’s argument in Midland Funding v. Johnson brings the justices to the sordid world of consumer debt collection. In that world, a small group of relatively large “debt buyers” have come to amass portfolios that include the past-due obligations of millions of consumers, representing billions of dollars of unpaid obligations. The problem comes from the reality that a large share of that debt is not legally collectible because the statute of limitations (typically six years) has expired. The debt has value (at least to the extent of several cents on the dollar) because of the possibility that the debt buyer ultimately will persuade the consumer to make some payment on the obligation even though the opportunity for legal enforcement has passed.


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The U.S government targets noncitizens with criminal convictions for removal from the United States. These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history. On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal. In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana – now legal in many states – did not mandate removal. Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

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There are some oral arguments in which it becomes apparent that the court made a mistake in granting certiorari. Monday’s argument in Lewis v. Clarke is one of those cases. As described in my argument preview, the case involves a car accident in Connecticut in which the defendant was an employee of an Indian tribe, which asserted a defense of sovereign immunity. The case exposes some interesting problems in the court’s jurisprudence regarding sovereign immunity generally, the characterization of claims for sovereign immunity purposes and the scope of Indian tribe immunity. But the oral argument leaves the impression that the court may have bitten off more than it can chew. Given the absence of a ninth vote, the most likely result is a punt.

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If there was a single moment at Monday’s oral argument in Nelson v. Colorado during which the likely outcome of the case became clear, it may have been Chief Justice John Roberts’ statement, just under halfway through Colorado Solicitor General Frederick Yarger’s argument, that “you keep talking about compensation. The issue is restitution.” Although the Chief Justice’s statement was hardly one of the funnier moments in an often chuckle-filled 56-minute argument session, it cut to the heart of the dispute between the petitioners, Shannon Nelson and Louis Alonzo Madden, and the respondent, the state of Colorado.

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Tuesday round-up

By on Jan 10, 2017 at 6:32 am

Today the court will hear oral argument in two cases. The first case on the agenda is Expressions Hair Design v. Schneiderman, a First Amendment challenge to a New York law that allows merchants to give discounts to customers who pay in cash, but prohibits the imposition of surcharges for customers who use credit cards. Ronald Mann previewed the case for this blog. Another preview comes from Liza Carens and Jenna Scoville at Cornell’s Legal Information Institute.

Next up is Goodyear Tire & Rubber Co. v. Haeger, which explores the limits of a court’s inherent power to impose sanctions for bad-faith conduct during discovery. Howard Wasserman had this blog’s preview; Michelle Korkhov and Anna Marienko at Cornell also preview the case.

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Posted in Round-up

Petition of the day

By on Jan 9, 2017 at 11:23 pm

The petition of the day is:


Issues: (1) Whether the Eighth Amendment’s requirement of individualized sentencing for a child who confronts a sentence of life in prison is satisfied by the possibility that a future parole board may exercise its discretion to release him early; and (2) whether the imposition of a mandatory life sentence on a child convicted on a joint venture theory, without any individualized sentencing consideration, violates the Eighth Amendment’s prohibition of cruel and unusual punishment.


None of the eight justices currently sitting on the U.S. Supreme Court served on state supreme courts before being nominated to the court. But that could change soon, as several of the potential nominees on the lists released by President-elect Donald Trump hail from state supreme courts – including Joan Larsen, a justice on the Michigan Supreme Court.

The 48-year-old Larsen has solid conservative bona fides and mixes roots in the heartland – she received an undergraduate degree from the University of Northern Iowa – with serious Washington-insider credentials. After graduating first in her class from Northwestern University’s law school (like retired Supreme Court Justice John Paul Stevens before her), Larsen clerked for Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit and then for Justice Antonin Scalia on the Supreme Court.

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Last Tuesday the nomination of Chief Judge Merrick Garland, pending since March 16, 2016, formally expired with the start of the 115th Congress. As a result, Donald Trump will have the opportunity upon his inauguration next Friday to fill the vacancy created almost a year ago by the death of Justice Antonin Scalia.

While still campaigning for president, Trump released two lists from which he is expected to choose his nominee for the open seat. Of the 21 names on Trump’s lists, the blog will profile nine judges frequently mentioned by journalists and commentators as front-runners for the nomination: Judge William Pryor, Judge Steven Colloton, Judge Raymond Gruender, Judge Neil Gorsuch, Judge Diane Sykes, Judge Thomas Hardiman, Judge Raymond Kethledge, Justice Thomas Lee and Justice Joan Larsen.

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Argument transcripts

By on Jan 9, 2017 at 3:20 pm

The transcript in Nelson v. Colorado is here; the transcript in Lewis v. Clarke is here.

Posted in Merits Cases

Update at 12:27 p.m.: This post has been expanded to include a discussion of the cases in which the court called for the views of the solicitor general.

Returning to the bench this morning for the first time in the new year, the Supreme Court issued additional orders from last week’s conference, but it did not add any new cases to its merits docket. The justices did, however, issue a summary ruling that sent a lawsuit against three New Mexico police officers back to the lower courts for another look. In that unsigned decision, the court reiterated that there is a high bar for allowing lawsuits against government officials to go forward. The justices had considered the case of White v. Pauly at five conferences before issuing today’s unsigned, eight-page ruling. The case arose when police officers Michael Mariscal and Kevin Truesdale, investigating accusations of “road rage” and drunk driving against Daniel Pauly, went to Pauly’s home, where they attempted to speak with him. When a third officer – Ray White – arrived, someone inside the home yelled “We have guns,” and shots were fired at the officers. White fired at Samuel Pauly, the suspect’s brother, who had pointed a gun in White’s direction, killing him.

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