This morning at 9:30a.m. we expect additional orders from the Court’s December 6 Conference.
Following orders, the Justices are scheduled to hear two oral arguments: Air Wisconsin Airlines Corp. v. Hoeper, previewed for this blog by Christina Tilley, followed by Ray Haluch Gravel Co. v. Central Pension Fund, previewed for this blog by Howard Wasserman.
UPDATE: Sunday 7:51 a.m. Justice Ruth Bader Ginsburg has denied this challenge, without issuing an opinion.
A group of consumers seeking to block the imminent merger of American Airlines and U.S. Airways moved on to the Supreme Court Saturday evening, seeking an order to keep the creation of the nation’s largest airline from taking place next week. The application in Fjord v. AMR Corporation (docket 13A579) can be read here.
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At 9:30 a.m. on Monday, we expect additional orders from the Court’s December 6 Conference. (As Lyle reported the Court granted one new case from that Conference on Friday afternoon.) On Tuesday at 10:00 a.m., we expect one or more opinions in argued cases. We will begin live blogging at 9:45. This is the second week of the December sitting; the hearing list for this sitting is here.
At 10 a.m. Tuesday, the Supreme Court will hold ninety minutes of oral argument on two joined cases, testing the federal government’s authority to require states to take action to prevent their air pollution from fouling the air in neighboring states. Defending the Environmental Protection Agency’s authority will be Deputy U.S. Solicitor General Malcolm L. Stewart, with forty-five minutes of time. Arguing against the EPA will be Jonathan F. Mitchell, Texas’s state solicitor general, for state and local government parties, with twenty minutes, and Peter D. Keisler, of the Washington, D.C., office of Sidley Austin, for industry and labor parties, with twenty-five minutes. The cases are EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation.
It is an undeniable fact of nature that polluted air, made dirty in one place by human activity, is carried by the wind to other places. But it is a myth that the pollution is always scattered in only one direction — upwind to downwind. The scientific reality is that polluted air swirls around, in several directions, so it is not easy to figure out just where it came from.
That is the puzzle that Congress and the federal government have been trying to figure out for most of the history of the Clean Air Act, at least for the past half-century. The Environmental Protection Agency’s most recent effort to sort that out — never put into effect and ultimately nullified by a federal appeals court — is now up for review by the Supreme Court.
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The petition of the day is:
Issue: (1) Whether, when law enforcement officers provide Miranda v. Arizona warnings prior to conducting a voluntary, noncustodial interview, they must cease all questioning if the interview subject subsequently expresses a desire to stop the interview, or whether the officers may continue the questioning without violating any constitutional requirements; and (2) whether, if what concededly began as a voluntary, noncustodial interview by police arguably becomes a custodial situation, the fact of “custody” alone makes any subsequently obtained confession involuntary, or must a court employ a “totality of the circumstances” analysis, with custody simply being one factor.
Oyez has posted the argument audio in this week’s cases. The Court heard arguments this week in:
The Court has let the parties know that it has accepted their suggestion that the parties in the Hobby Lobby and Conestoga cases not be realigned for purposes of briefing. So the petitioners and respondents will file their briefs in the ordinary course. One important exception to the ordinary schedule — also proposed by the parties — is that amicus briefs supporting either party are due together on January 28, 2014.
Renewing its recent fascination with the kinds of inventions that can be patented, the Supreme Court on Friday agreed to clarify when an analytical method implemented by a computer or by a link on the Internet is eligible for monopoly protection. This was the only new case granted. The Court will be reviewing a widely splintered decision by the U.S. Court of Appeals for the Federal Circuit, in the case of Alice Corporation Pty. Ltd. v. CLS Bank International (docket 13-298). The en banc Federal Circuit found the method at issue ineligible for a patent, but a majority could not agree on a standard for making such decisions.
The case will provide a new test of the Patent Act’s most basic provision — Section 101, which broadly outlines what kinds of inventions are patentable. One of the long-standing exceptions to the types of inventions mentioned in that section is that an abstract idea can never be patented. That issue arises frequently these days, especially with rapidly developing technology in computer software. The Justices have dealt with that issue several times in recent years.
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