Editor's Note :

Editor's Note :

On Monday, we expect orders from the June 22 Conference at 9:30 a.m. and the final opinions of the term at 10 a.m.
Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.
The Supreme Court proceedings and orders in the legal challenges to the administration’s entry ban are available at this link.

Tuesday round-up

By on Jun 20, 2017 at 7:29 am

Yesterday the Supreme Court agreed to hear a high-profile partisan-gerrymandering case from Wisconsin, Gill v. Whitford. The justices also granted Wisconsin’s request for a stay of a lower-court ruling requiring the state to implement a new districting map by next fall. They summarily reversed an appeals court grant of habeas corpus relief to a criminal defendant in Jenkins v. Hutton, and they asked for the views of the solicitor general in a bankruptcy case. Amy Howe covers the orders list for this blog. At The Washington Post’s Volokh Conspiracy blog, Jonathan Adler notes that Jenkins continues a recent “trend” in which “the Supreme Court has repeatedly reversed the 6th Circuit in habeas cases, often without oral argument.”

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Posted in Round-up

In 2011, Simon Tam asked the U.S. Patent and Trademark Office to register the name of his band: The Slants. Tam and the band acknowledged that the term “slants” is often regarded as derogatory to people with Asian ancestors, but they had hoped to use it as their name to “reclaim” the term and erase its negative connotations. However, the PTO rejected Tam’s request, relying on a provision of federal trademark law barring the PTO from registering trademarks that may disparage other people, whether they are alive or dead. A federal appeals court agreed with Tam that this provision, known as the “disparagement clause,” violates the First Amendment. In a significant free-speech decision, the Supreme Court today upheld that ruling, holding that the disparagement clause “offends a bedrock First Amendment principle:  Speech may not be banned on the ground that it expresses ideas that offend.”

Justice Alito with opinions in Matal v. Tam (Art Lien)

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Petition of the day

By on Jun 19, 2017 at 10:14 pm

The petition of the day is:


Issues: (1) Whether Indiana’s Automatic Dialing Machine Statute creates a content-based restriction that cannot survive strict scrutiny under Reed v. Town of Gilbert, Arizona; and (2) whether the ADMS is a valid time, place and manner restriction.

Menu of today’s content

By on Jun 19, 2017 at 9:04 pm

Here is an overview of today’s case coverage:

7:12 a.m.: Amy Howe covered the federal government’s change in its position in the cases next term consolidated as Epic Systems Corp. v. Lewis. 

12:56 p.m.: Amy Howe covered the court’s grant in partisan-gerrymandering case Gill v. Whitford.

1:52 p.m.: Amy Howe analyzed the court’s opinion in Packingham v. North Carolina.

2:56 p.m.: Ronald Mann analyzed the court’s opinion in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County.

3:47 p.m.: Mark Walsh provided a “view” from the courtroom for today’s opinion announcements.

4:25 p.m.: Amy Howe analyzed the court’s opinion in McWilliams v. Dunn.

9:03 p.m.: Amy Howe analyzed the court’s opinion in Ziglar v. Abbasi.

We are also hosting a symposium on the court’s ruling in Matal v. Tam, formerly known as Lee v. Tam. Our first contribution is by Caleb Trotter.

Posted in Everything Else

During the almost 16 years since the September 11 attacks, litigation challenging the treatment of Middle Eastern men who were in the United States illegally at the time of the attacks and were detained for immigration violations has continued to wind its way through the courts. Several of those detainees, who are the plaintiffs in Ziglar v. Abbasi (along with two other related cases) filed a lawsuit against a group of federal officials: former U.S. attorney general John Ashcroft, former FBI director Robert Mueller, and James Ziglar, a former commissioner of the Immigration and Naturalization Service, and the wardens at a detention center where the men were being held. The detainees alleged that the federal officials knew that the detainees did not have any ties to terrorism but still held them in “unnecessary and punitive conditions of confinement.”

Justice Breyer dissents in Ziglar v. Abbasi (Art Lien)

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Caleb R. Trotter is an attorney at Pacific Legal Foundation, which filed an amicus brief in support of Simon Shiao Tam in the U.S. Supreme Court.

Simon Shiao Tam is the leader and bass player of the Portland, Oregon-based dance rock band, The Slants. Tam, an Asian-American, formed his band in 2006 and recruited other Asian-Americans to join in order to provide an interesting and entertaining platform for discussing discrimination against Asian-Americans. In 2011, Tam sought to register The Slants as a trademark with the United States Patent and Trademark Office. But the government refused to register the mark, on the ground that The Slants disparages “persons of Asian descent.”

Section 2(a) of the Lanham Act states that trademarks that “disparage” persons, living or dead, may be denied registration with the federal government. After the government rejected registration of The Slants, Tam appealed to the Trademark Trial and Appeal Board. The appeal board acknowledged that Tam was not attempting to disparage persons of Asian descent, and was wresting “ownership” of the term from those with negative intentions. But because many Asian-Americans find the band’s name objectionable regardless of intent, the board affirmed the government’s denial of registration. Tam then sought judicial review of the denial as a violation of the First Amendment.

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When an inmate being held in a state prison believes that his conviction or sentence violated the U.S. Constitution, he can go to federal court to seek relief – a process known as “habeas corpus.” But once he is in federal court, it is not enough for the inmate to show simply that the state court’s decision against him was wrong. Instead, he has to show that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” It’s a deliberately high bar, which inmates are rarely able to meet – especially in the Supreme Court, which most often agrees to review a case precisely because the lower courts have reached different conclusions about the same legal question, suggesting that the law is not clearly established.

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It’s back to business for the court today after the excitement of last Thursday’s special session for the investiture of Justice Neil Gorsuch. Retired Justice John Paul Stevens, who was present for the investiture, is back in the courtroom this morning, taking a seat next to Reporter of Decisions Christine Fallon.

Going into today, there are 17 pending merits decisions, and some uncertainty about whether the court will add an additional opinion day or two this week. We’ll get an answer at the very end of today’s session.

All nine justices take the bench on time this morning, in contrast to the delayed start to the investiture, which may have been caused by the various pictures and other behind-the-scenes activities involving President Donald Trump and first lady Melania Trump.

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The court’s decision this morning in Bristol-Myers Squibb v. Superior Court of California could hardly surprise anybody who noticed the court’s near-unanimous ruling last month in BNSF Railway Co. v. Tyrrell, which reaffirmed the justices’ commitment to the limitations on state-court jurisdiction announced a few years ago in Daimler AG v. Bauman. The issues in these cases are so closely related that it would have been remarkable if the court had not reversed the decision of the California Supreme Court.

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In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

Justice Kennedy with opinions in Ziglar v. Abbasi and Packingham v. North Carolina 

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