Editor's Note :

Editor's Note :

We expect additional orders from the December 2 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday.
On Monday the court hears oral arguments in Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. Amy Howe has our preview.

Petition of the day

By on Nov 24, 2016 at 11:23 pm

The petition of the day is:

16-493

Issue: Whether the “on sale” bar found in Section 102(b) of the Patent Act applies only to sales or offers of sale made available to the public, as Congress, this court, and the United States have all made clear, or whether it also applies to non-public sales or offers of sale, as the U.S. Court of Appeals for the Federal Circuit has held.

Petition of the day

By on Nov 23, 2016 at 11:23 pm

The petition of the day is:

16-595

Issues: (1) Whether Alabama’s advisory jury death sentencing scheme, which is in all relevant aspects the same as the Florida scheme reviewed in Hurst v. Florida, violates the Sixth Amendment; (2) whether Hurst and the Sixth and Eighth Amendments require, at least, a unanimous jury recommendation for a sentence of death, as the Florida Supreme Court held on remand in Hurst; and (3) whether the U.S. Supreme Court’s decision in Hurst applies retroactively to the petitioner’s case, and the cases of other condemned inmates sentenced under unconstitutional capital sentencing laws, where the new rule announced in Hurst implicates the fundamental right to a fair trial and substantially enhances fact-finding procedures.

 

Should a single district court judge issue a nationwide injunction against the federal government? That question was front and center in the aftermath of the Supreme Court’s tie vote in United States v. Texas, which left in place a nationwide preliminary injunction barring the Obama administration from granting a temporary reprieve from removal to certain unauthorized immigrants. Would-be beneficiaries of President Barack Obama’s initiative have filed lawsuits in Illinois and New York, arguing that the injunction should not apply outside the states that were parties to the lawsuit. The propriety of nationwide injunctions has come up recently in other contexts as well. Over the past few months, district courts have issued nationwide injunctions barring implementation of the Labor Department’s “persuader rule” and the Education Department’s transgender bathroom policy. Did these courts overstep their bounds?

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alejandrorodriguez

In recent years, the U.S government has aggressively used detention of immigrants as a tool for enforcing the immigration laws. Immigration detention became national news in 2014 when the Obama administration detained tens of thousands of Central American women and children fleeing violence in their native lands.

In Jennings v. Rodriguez, the court will consider the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. This case is a class-action challenge to lengthy immigration detentions without any opportunity for release on bond.

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Wednesday round-up

By on Nov 23, 2016 at 7:38 am

In Slate, Lara Bazelon suggests that Donald Trump’s “ability to turn the Supreme Court into a rubber stamp for the right wing rests on two unknowns: whether he will have the opportunity to make a second appointment to replace a member of the court’s liberal wing and, if so, whether Chief Justice John Roberts is willing to march in lockstep with four conservative ideologues.” Advice and Consent (podcast) features a discussion about whether Senate Democrats might register their dissent over Republican treatment of Chief Judge Merrick Garland by filibustering a Trump nomination. At his eponymous blog, Lyle Denniston reports that a New Mexico lawyer whose attempt to force the Senate to act on the Garland nomination was rejected by a federal trial court for procedural reasons has appealed that decision to the U.S. Court of Appeals for the District of Columbia Circuit; the lawyer “has not been demanding a specific outcome on the Garland nomination, but he is seeking an up-or-down vote in the post-election Senate session.”

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Petition of the day

By on Nov 22, 2016 at 11:49 pm

The petition of the day is:

16-473

Issue: Whether the Employee Retirement Income Security Act of 1974 permits a cause of action for indemnity or contribution by an individual found liable for breach of fiduciary duty.

ofmiceandmen

In 2002, in Atkins v. Virginia, the Supreme Court ruled that the Constitution’s prohibition of cruel and unusual punishment bars the execution of individuals who are intellectually disabled. The court did not, however, provide detailed guidelines on how states should determine whether someone is intellectually disabled, leaving that job to the states. Twelve years later, in Hall v. Florida, the justices struck down a Florida rule that created a bright-line cut-off for intellectual disability that excluded anyone with an IQ score above 70. The court made clear that its decision in Atkins did not give states “unfettered discretion to define the full scope of the constitutional protection” for the intellectually disabled. Rather, the court emphasized, the legal determination of who is intellectually disabled should be “informed by the medical community’s diagnostic framework.” Next week, in the case of a Texas death-row inmate, the justices will return to the question of what form that legal definition should take – and, in particular, how up-to-date the standards used to determine intellectual disability must be.

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Tuesday round-up

By on Nov 22, 2016 at 7:33 am

In The Washington Post, Robert Barnes answers three common questions about the Supreme Court in a Donald Trump administration, noting, among other things, that judicial ethics experts say “federal laws would not prohibit Trump from nominating” his sister to the court. At Empirical SCOTUS, Adam Feldman looks at the records of past Supreme Court justices with experience only on state courts and federal trial courts, and concludes that “Trump may well feel most secure with the appointment of a prior federal court of appeals judge,” noting that “there appears little predictive capacity for how a judge will decide on the Supreme Court based on non-federal court of appeals lower court experience.”

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Petitions of the day

By on Nov 21, 2016 at 11:23 pm

The petitions of the day are:

16-476

Issue: Whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.

16-477

Issue: Whether a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States and Printz v. United States.

Most lectures organized by the Supreme Court Historical Society take place in the courtroom – literally and, in terms of their content, figuratively. The lecturer may provide some context for landmark cases – bakeries in New York or slaughterhouses in New Orleans – but those locales aren’t where the action happens. Last Wednesday, in contrast, the justices who figured in University of Wisconsin professor Brad Snyder’s story didn’t set foot in their former chamber until the final minutes of Snyder’s lecture. Instead, the audience met Justice Oliver Wendell Holmes in his summer home in Beverly Farms, Massachusetts; Justice James McReynolds in heated debate with (future justice) Felix Frankfurter over dinner at a Washington row house; Justice Louis Brandeis arguing on his front porch in pajamas; Justice Harlan Fiske Stone on a remote island off the coast of Maine, reachable only by chartered fishing boat; and Chief Justice William Howard Taft on the phone in Point-au-Pic, Quebec. This was the summer of 1927, and the justices were on recess. Nicola Sacco and Bartolomeo Vanzetti, however, alleged anarchists and convicted murderers, were pleading for their lives. After six years of appeals, their execution date approached.

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