Editor's Note :

Editor's Note :

Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.

Petition of the day

By on Jun 22, 2017 at 10:23 pm

The petition of the day is:

16-1070

Issues: (1) Whether equity jurisdiction allows a private plaintiff to obtain an injunction for non-compliance with the Airport Noise and Capacity Act of 1990 against an airport that does not receive federal funds or impose passenger facility charges; and (2) whether ANCA pre-empts noise and access restrictions by all airports, including the many thousands of small airports nationwide that do not receive federal funds or impose passenger facility charges.

The justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

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In a narrow and analytically useful opinion this morning, the Supreme Court ruled 7-2 that a courtroom closure error that is not raised until collateral attack via an ineffective-assistance claim does not require automatic reversal despite being labelled “structural” error. Instead, the defendant must show “prejudice” under a reading of Strickland v. Washington that five justices assume is correct. Justice Clarence Thomas filed a short concurring opinion, Justice Samuel Alito wrote an opinion concurring only in the judgment, and Justice Stephen Breyer filed a dissent joined by Justice Elena Kagan. Finally, Justice Neil Gorsuch joined Justice Anthony Kennedy’s majority opinion, Thomas’ concurring opinion, and Alito’s opinion that concurred only in the judgment. Perhaps unsurprisingly for a new justice, Gorsuch seems to want to be friends with as many of his colleagues as possible

Justice Kennedy with opinion in Weaver v. Massachusetts (Art Lien)

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This morning the justices upheld the convictions of seven men who had been convicted of the brutal beating, sodomy, and murder of Catherine Fuller, a District of Columbia mother of six, in 1984. Writing for the court in Turner v. United States, Justice Stephen Breyer concluded that even if the prosecutors had given the defense attorneys evidence that would have been helpful to the men, the jurors likely would have reached the same result.

Justice Breyer with opinion in Turner v. U.S. (Art Lien)

The Supreme Court rarely weighs in on cases that are “legally simple but factually complex.” This is in no small part because the relatively few cases that the justices review often make their way to the court after the lower courts have reached different decisions under the same legal principle, and the justices want to make sure that their opinions establish clear legal principles that can govern the thousands of cases argued in the lower courts each year. But “legally simple but factually complex” is exactly how Breyer described the issue before the court today.

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In 2000, Divna Maslenjak and her family came to the United States as refugees from the former Yugoslavia, fleeing the civil war in that country. Maslenjak became a U.S. citizen in 2007, but several years later she was stripped of her citizenship and deported – as was her husband – because immigration officials discovered that she had made false statements during her naturalization process. Maslenjak conceded that she had lied, but she argued that she should be able to keep her citizenship because her lies were not material – that is, that they would not have been important to the officials deciding whether to grant her citizenship application. But the federal government countered, and the lower courts agreed, that Maslenjak could lose her citizenship even if her lies did not play any role in the officials’ decision. Today the Supreme Court largely agreed with Maslenjak, holding that her lies can be held against her only if they would have mattered to immigration officials. But given the gravity of her lies, Maslenjak’s victory may not be enough to secure her return to the United States.

Justice Kagan with opinion in Maslenjak v. U.S. (Art Lien)

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“This is the single greatest witch hunt in Scotland’s history,” declared Deanne Maynard, counsel for the Weird Sisters. So began an evening of jokes perhaps best appreciated by a Washington, D.C., audience. Maynard battled former solicitor general Don Verrilli in the case of The Weird Sisters v. Kingdom of Scotland, based on Shakespeare’s “Macbeth.” The Sisters were challenging their death sentences for their alleged role in Macbeth’s murder of King Duncan before U.S. Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer and Judges Sri Srinivasan, David Tatel and Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit.

Deanne E. Maynard (Morrison & Foerster LLP), foreground; Donald B. Verrilli, Jr. (Munger, Tolles & Olson LLP) and Adele El-Khouri (Munger, Tolles & Olson LLP), background; at Shakespeare Theatre Company Bard Association’s 2017 Annual Dinner and Mock Trial. Photo by Kevin Allen.

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Today is the court’s first added day for opinions of the term, and it is coming much later than in recent terms, when opinion days were added in the second week of June.

This morning, around 9:30, I have reflexively walked into the Public Information Office looking for the orders list. But there is no orders list on a day such as this.

In the courtroom, as is typical for the first added opinion day, the bar section is almost empty. About a dozen members of the Supreme Court Bar will show up, joined by Acting Solicitor General Jeffrey Wall and Deputy Solicitor General Edwin Kneedler. Deputy Solicitor General Michael Dreeben, who is no doubt busy with his temporary assignment with the special counsel’s office, is not here.

Usually, when the justices are prepared to take the bench, they are preceded by several aides from the marshal’s office. Typically two, but more recently three, such aides emerge from the curtains and stand still for 10 or 15 seconds, a sign that the justices are about to appear. The aides, joined by a couple more who emerge from the curtains, then help push in the justices’ chairs after Marshal Pamela Talkin delivers the traditional cry.

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Hugh C. Hansen is a professor of law at Fordham University School of Law. He is the founder and director of the Fordham Conference on IP Law and Policy and the Fordham IP Institute. He submitted amicus curiae briefs in support of Simon Tam in both the U.S. Court of Appeals for the Federal Circuit and the Supreme Court.

Matal v. Tam is one of the most important First Amendment free speech cases to come along in many years. The result is not much of a surprise. For the record, on October 24, 2016, I tweeted: “TAM prediction: from doctrinal, policy, realist analysis + cert before 4 cir op = 2A ‘disparage’ violates 1st Amend; ‘scandalous’ reserved.” What was a surprise was how strongly all eight justices viewed the applicable free speech protection.

Justice Samuel Alito’s opinion meticulously addressed all arguments, making sure there were no loose ends to clutter future cases. His style was critical and even mocking. He left no doubts on the merits of the free speech issues. Justice Anthony Kennedy’s opinion took more of a Gordian knot approach. No need to worry about untying various threads and arguments; viewpoint discrimination allows us to just cut right through them. The purpose of both opinions appeared to be to make sure that there was no way around the Supreme Court’s conclusions in the future. The court also seemed to take offense at the government’s and amici’s arguments as to why there was no viewpoint discrimination. The opinions together amounted to a serious defeat for the government and its amici supporters.

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

Posted in Live
 
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The justices are expected to take the bench today at 10 a.m. to issue opinions in argued cases. There are 12 decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those 12 cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

Continue reading »

 
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