This morning the Supreme Court issued orders from last week’s private conference. The justices added three new cases to their merits docket for the next term, but – like last week – the most interesting development may have come in a death penalty case in which the court denied review. A week ago, it was Justice Sonia Sotomayor, joined by Justice Stephen Breyer, who filed a dissent from the denial of certiorari in a challenge to Alabama’s lethal-injection protocol. Today, Breyer wrote alone in noting that he would have granted review in the case of a Louisiana death row inmate who challenged the constitutionality of the death penalty more broadly.
At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were “incredibly important parts” of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even “structure their civil community life” around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from “a very large part of the marketplace in ideas.” Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law.
Today the court hears oral argument in two cases. The first is Packingham v. North Carolina, which asks whether a ban on social media use by sex offenders violates the First Amendment. Amy Howe previewed the case for this blog. Another preview, by Nicholas Halliburton and Natalia San Juan, appears at Cornell University Law School’s Legal Information Institute. Additional coverage comes from Steven Nelson at U.S. News and World Report, Steven Mazie in The Economist and Lauren Russell and Nina Totenberg at NPR. At The Marshall Project, Andrew Cohen discusses the case, noting that “just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent.”
The court issued orders from its February 24 conference on Monday. It granted certiorari in three cases. On Monday the court also heard oral argument in two cases. There is a possibility of opinions on Wednesday at 10 a.m. The court will also hear oral arguments on Tuesday and Wednesday, beginning at 10 a.m. each day. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their March 3 conference; our list of “petitions to watch” for that conference will be available soon.
The petition of the day is:
Issues: (1) Whether the Federal Arbitration Act or the “federal policy favoring arbitration” requires courts to discriminate in favor of arbitration agreements; (2) whether the FAA requires courts to preempt neutral state laws that merely have a disproportionate impact on the enforcement of arbitration agreements; and (3) whether, if the answer to either question above is “yes,” that violates basic principles of federalism.
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.
The court heard argument this week in:
The case in front of Neil Gorsuch presented “an interesting constitutional question,” as he put it.
“Does [due process] require a ‘nexus’ between the United States and a non-resident alien to apply to him extraterritorially a federal criminal statute?” wrote Gorsuch, who is President Donald Trump’s nominee to succeed the late Justice Antonin Scalia on the Supreme Court. “I recommend denial.”
The case of Martinez-Hidalgo v. United States came before Gorsuch not in his current job as a federal appeals court judge but as one of dozens of cert petitions he analyzed as a Supreme Court law clerk during the October 1993 term.
Gorsuch, 26 years old at the time, was a law clerk serving Justice Anthony Kennedy as well as retired Justice Byron White.
In April 2010, Lester Packingham’s traffic ticket was dismissed, prompting him to take to Facebook to celebrate. He posted that “God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!”
We have no way to know whether any higher powers read Packingham’s Facebook posts. But at least one mortal authority did: a Durham, N.C., police officer who had logged onto Facebook to see whether any registered sex offenders had been using the site. He found the post by Packingham, who had been indicted in 2002 on two counts of statutory rape of a 13-year-old and eventually convicted of taking “indecent liberties of a minor.” Packingham had been sentenced to 10 to 12 months in prison, which the judge suspended, and ordered to register as a sex offender.
Does the Supreme Court, the most trusted branch of the federal government, influence ordinary Americans’ opinions? When the Supreme Court upholds same-sex marriage, Obamacare or controversial immigration restrictions, does it increase public support for these policies? The answers to these questions are vitally important, because they shape the legitimacy of the court and the likelihood that court decisions will meet political resistance.
If Americans take cues from Supreme Court rulings when forming or updating their opinions on policy, this would suggest that initially unpopular policies may gain widespread public acceptance if they come before the court and are upheld. Exerting this kind of influence would enable the court to function as a “Republican schoolmaster” and as a vehicle for social change, as scholars from Robert Dahl in 1957 to Nate Persily in 2013 have suggested. Court decisions are less likely to be resisted by bureaucrats and politicians if those decisions are supported by a majority of the American public. Legal scholars have argued that this in turn could allow for greater judicial independence and for an effective system of checks and balances in American politics.