Petition of the day

By on Oct 23, 2017 at 8:20 pm

The petition of the day is:

17-449

Issue: Whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996. But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition. Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter. Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion. And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

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As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute – i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners – requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims. Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

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Monday round-up

By on Oct 23, 2017 at 7:11 am

For The Washington Post, Robert Barnes reports that Chief Justice John Roberts has met with criticism for suggesting during the oral argument in partisan-gerrymandering case Gill v. Whitford “that forcing the court to make … decisions” about “when normal politics became unconstitutional bias” “would put the justices in a no-win position and tarnish the reputation that they — he — had worked hard to burnish.” At the Post’s Volokh Conspiracy blog, David Post hopes that the court does not rely on its relative lack of expertise in statistical analysis to “abdicate its responsibility” in Whitford “to craft some meaningful and manageable measures of partisan interference with the electoral process.”

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This week at the court

By on Oct 22, 2017 at 12:00 pm

On Friday the justices will meet for their October 27 conference; our list of “petitions to watch” for that conference will be available soon. The calendar for the November sitting, which begins on October 30, is available on the Supreme Court’s website.

 
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Petition of the day

By on Oct 20, 2017 at 8:20 pm

The petition of the day is:

17-441

Issue: Whether, or in what circumstances, a plaintiff adequately pleads a “continuing violation” of the antitrust laws, sufficient to satisfy the statute of limitations, by alleging continuing sales during the limitations period when the alleged price-fixing conspiracy was formed outside the limitations period.

In Texas v. White in 1869, Chief Justice Salmon Chase famously wrote for the Supreme Court that the “Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” Chase’s opinion rejecting state secession may seem today like a foregone conclusion, an unsurprising legal corollary to the Union’s victory on the battlefield.

For the court-watchers of the 1860s – #AppellateQuillPens – the ruling was much less obvious, especially given its author. Just one year previously, Chase had avoided reaching this holding in a different case – Jefferson Davis’ trial for treason. Chase maintained in both cases that he was following only the dictates of logic. In a lecture sponsored by the Supreme Court Historical Society, law professor Cynthia Nicoletti told a different story that suggests Chase had more personal motivations.

Professor Cynthia Nicoletti lectures on Chief Justice Salmon Chase (Art Lien)

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Friday round-up

By on Oct 20, 2017 at 6:53 am

Briefly:

  • Subscript offers a graphic explainer on Wilson v. Sellers, which asks whether a federal court in a habeas case should “look through” a summary state-court ruling to review the last reasoned state-court decision.
  • At The Federalist, Margot Cleveland suggests that this week’s most significant Supreme Court order concerned an administrative-law case the justices’ didn’t take, and that “Monday’s order in Scenic America [v. Department of Transportationprovides the first evidence that [Justice Neil] Gorsuch intends to challenge Chevron deference and that he possesses the gravitas necessary to sway his colleagues.”
  • At The American Prospect, Dorothy Samuels weighs in on Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[g]ranting business owners exemptions from anti-discrimination laws based on their religious beliefs would be a radical development, extending a new constitutional right.”
  • At SportsHandle, Brett Smiley looks at the NCAA’s brief in the New Jersey sports-betting case, Christie v. National Collegiate Athletic Association.

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Petition of the day

By on Oct 19, 2017 at 8:20 pm

The petition of the day is:

17-432

Issue: Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

Thursday round-up

By on Oct 19, 2017 at 7:02 am

Briefly:

  • At Lawfare, Anthony Bellia and Bradford Clark, the authors of scholarship cited by Justice Neil Gorsuch during last week’s oral argument in Jesner v. Arab Bank, which asks whether corporations are liable under the Alien Tort Statute, point out that the court has never considered “whether permitting a suit solely between aliens under the ATS would violate Article III,” and suggest that “[d]oing so in Jesner would obviate the need to resolve other more difficult questions (such as corporate liability) that are not necessary to decide the case.”
  • In an op-ed for The New York Times, Jennifer Daskal explains why the court’s recent decision to review digital-privacy case United States v. Microsoft Corp., which asks whether the government can gain access from email providers to data that is stored overseas, “is a clarion call for Congressional action.”
  • At Take Care, Robert Post unpacks the Department of Justice’s amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, arguing that “[t]o key heightened First Amendment scrutiny to the expressive properties of human action,” as DOJ does in supporting the baker, “is … to risk stretching the First Amendment to encompass everything, which means that it will protect nothing.”
  • At The National Law Journal (subscription or registration required), Marcia Coyle looks at incoming Apple general counsel Kate Adams’ formative experience as a law clerk to retired Justice Sandra Day O’Connor.

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