The Court issued orders from its April 22 Conference on Monday. It granted review in two cases. On Tuesday the Court released its opinion in Heffernan v. City of Paterson. The Court also heard oral arguments on Monday, Tuesday, and Wednesday. The calendar for the April sitting is available here. On Friday the Justices will meet for their April 29 Conference; our list of “petitions to watch” for that Conference is available here.


Oral argument audio and transcripts from this week’s oral arguments at the Supreme Court are available on Oyez. The Court heard arguments this week in:

United States v. Texas
United States v. Bryant
Universal Health Services v. Escobar
Birchfield v. North Dakota
Encino Motorcars v. Navarro

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The Mills Legal Clinic of Stanford Law School is seeking a new instructor for the Supreme Court Litigation Clinic. The instructor will participate in all activities of the clinic, including: supervising students on case research and brief writing; delivering seminar-style instruction on the Supreme Court and elements of appellate advocacy; and identifying and scrutinizing opportunities for the clinic to become involved in new cases. The clinic instructor will be required to be at Stanford full-time while the clinic is running and to be available as needed during other time periods. The anticipated start date for this position is August 2016.

More information on the position and on Stanford’s Supreme Court Litigation Clinic is available here.

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Friday round-up

By on Apr 22, 2016 at 10:57 am

Monday’s oral argument in United States v. Texas, the challenge to the Obama administration’s deferred-action policy for some undocumented immigrants, continues to dominate coverage of and commentary on the Court.  C-SPAN Radio will air the oral argument today at 3:30 p.m. and Saturday at 6 p.m.  In The Daily Signal, Josh Siegel reports on comments by Texas governor Greg Abbott, who predicts that the Court will deadlock in the case.  At Immigration Prof Blog, Peter Margulies responds to some of the arguments and commentary on work-authorization regulations, while Josh Blackman and Cristina Rodriguez discuss the case in a podcast for the National Constitution Center.  And in Fortune, Kevin Johnson suggests that Texas’s lawsuit is “little more than a political gambit.”  Continue reading »

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Petition of the day

By on Apr 21, 2016 at 11:00 pm

The petition of the day is:


Issue: (1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed; and (2) whether execution of a condemned individual more than three-and-one-half decades after the imposition of a death sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment.


The last argument of the week brought the Justices a dispute under the Fair Labor Standards Act (FLSA), Encino Motorcars v. Navarro. The case involves service advisors at car dealers – the employees who meet with the customers to discuss what services the customers should buy. Because many of those advisors are paid a salary, rather than commissions, the only basis for exempting them from the FLSA is a provision that exempts any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” The provision obviously covers those who sell cars and those who fix them, but its application to those who sell services is not nearly so clear.

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Thursday round-up

By on Apr 21, 2016 at 8:51 am

Yesterday the Court issued opinions in several argued cases.  Andrew Hamm rounded up early coverage and commentary for this blog.  In Bank Markazi v. Peterson, the Court upheld a statute which directs that Iranian assets go to terror victims and their families.  Lyle Denniston covered the ruling for this blog, with other coverage coming from Tony Mauro of The National Law Journal (subscription or registration may be required), who reports that, before yesterday’s ruling, Justice Sonia Sotomayor and Chief Justice John Roberts had “never been the only two dissenters in a case.”  Commentary on the ruling comes from Howard Wasserman at PrawfsBlawgContinue reading »

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“I’m not talking law, I’m talking practical facts,” Justice Stephen Breyer told Kathryn Keena, a Minnesota county attorney, about two-thirds of the way through today’s seventy-one-minute oral argument in Birchfield v. North Dakota.  The issue before the Court was, of course, a legal one:  can a state, without a warrant, make it a crime for a driver suspected of driving under the influence to refuse to take a test to measure the alcohol in his blood?  Three men from Minnesota and North Dakota contend that the states cannot, because it would violate their rights under the Fourth Amendment to be free from unreasonable searches.  But as Breyer’s statement demonstrates, the Justices today were far more interested in the facts, even as the lawyers in the case sometimes struggled to provide them to the Court’s satisfaction.  And although for a while it looked like the Justices might be ready to rule in the states’ favor, it was one fact – that breath tests are normally not administered at the side of the road, but instead at the police station – that might in the end make all the difference.

Kathryn Keena, Asst. Dakota County Attorney

Kathryn Keena, Assistant Dakota County Attorney (Art Lien)

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Menu of today’s case coverage

By on Apr 20, 2016 at 7:49 pm

Here is an overview of today’s case coverage:

11:40 a.m.: Lyle Denniston previewed next week’s arguments in McDonnell v. United States.

12:39 p.m.: Lyle analyzed today’s opinion in Bank Markazi v. Peterson.

1:35 p.m.: John Elwood compiled a Relist Watch for this Friday’s Conference.

2:21 p.m.: Amy Howe analyzed today’s opinion in Harris v. Arizona Independent Redistricting Commission.

3:21 p.m.: Ronald Mann analyzed yesterday’s arguments in Universal Health Services v. U.S. ex rel Escobar.

5:13 p.m.: Rory Little previewed next week’s arguments in Dietz v. Bouldin.

5:46 p.m.: Lyle covered today’s filed briefs in Zubik v. Burwell.

6:51 p.m.: Douglas Berman analyzed today’s opinion in Molina-Martinez v. United States.

Posted in Everything Else

In my preview of Molina-Martinez v. United States a few months ago, I suggested that petitioner Saul Molina-Martinez’s attorney would face an uphill battle trying to convince the Justices to adopt a presumption of prejudice as part of plain-error review when a sentence was based on an erroneous guideline range not noticed until appeal. Consequently, it was not surprising that the Supreme Court’s ruling today in Molina-Martinez v. United States did not formally adopt such a presumption; indeed, the Court expressly stated that “courts reviewing sentencing error cannot apply a categorical rule” when conducting plain-error review under Federal Rule of Criminal Procedure 52(b). But while not adopting a presumption of prejudice formally, the majority opinion authored by Justice Anthony Kennedy came pretty close to adopting such a rule functionally, and now it ought to be easier for defendants in the Fifth Circuit (and elsewhere) to have Federal Sentencing Guidelines errors addressed for the first time on appeal.

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