Petitions of the week

By on Dec 18, 2018 at 10:14 am

This week we highlight petitions pending before the Supreme Court that address, among other things, when an “offer[] to sell” occurs under the Patent Act, the constitutionality of a court-martial of a retired military service member, and the correct legal standard for determining whether a lien is a “statutory lien” under the Bankruptcy Code.

The petitions of the week are:

18-306

Issues: (1) Whether the Constitution permits the court-martial of a retired military service member; and (2) whether, if so, the Constitution limits the jurisdiction of courts-martial in such cases to offenses that are related to the retiree’s military status.

18-307

Issues: (1) Whether Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act violates the Constitution’s separation of powers by creating the Bureau of Consumer Financial Protection as an independent agency that exercises expansive executive authority over private citizens but is led by a single director that the president cannot remove from office for policy reasons, is exempted from Congress’ power of the purse and accompanying congressional oversight, and has no internal checks or balances (such as those afforded by a deliberate multi-member commission structure) to mitigate this lack of accountability and restraint; (2) whether Humphrey’s Executor v. United States should be overturned; and (3) whether the appropriations clause, in conjunction with the Constitution’s separation of powers, permits Congress to create perpetual, on-demand funding streams for executive agencies that are unreviewably drawn from the coffers of other independent agencies.

18-560

Issue: Whether the Supreme Court should resolve a conflict among the courts of appeals over the correct legal standard for determining whether a lien is a “statutory lien” under the Bankruptcy Code.

18-600

Issue: Whether, under the Patent Act, an “offer[] to sell” occurs when the offer is actually made or when the offer contemplates that the proposed sale will take place.

Tuesday round-up

By on Dec 18, 2018 at 7:04 am

Briefly:

  • At Bloomberg Law, Jordan Rubin reports that “[p]rosecuting federal hate-crime charges after events such as mass shootings could get trickier if the U.S. Supreme Court rules for the defendant in a case getting more notice for its potential impact on President Donald Trump’s pardon power,” Gamble v. United States, which asks whether the Supreme Court should overrule an exception to the double jeopardy clause that allows a defendant to be prosecuted for the same crime in both federal and state court.
  • Pamela Wood reports for The Baltimore Sun that “[t]he Baltimore County government is asking the U.S. Supreme Court to reverse a lower court ruling in a long-running lawsuit over pensions — a ruling that would require the county to pay out millions of dollars to retired county workers unless it’s overturned.”
  • At The Atlantic, Garrett Epps takes a look at the justices’ order for additional briefing in Carpenter v. Murphy, which asks whether Congress has disestablished the boundaries of an Indian reservation in Oklahoma, affecting the state’s ability to prosecute major crimes in the affected area; he concludes that “[i]t’s tempting to say that it would take the wisdom of Solomon to resolve this dispute,” but that “[f]ear—even fear of gaping prison doors—is not usually a great basis for judgment.”
  • In the latest episode of First Mondays, Kate Shaw and others join Leah Litman “to take a deep dive into issues that regularly come up on the show.” 
  • At The World and Everything In It (podcast), Mary Reichard discusses the oral arguments in Timbs v. Indiana, in which the court will decide whether the Eighth Amendment’s excessive fines clause applies to the states, and Culbertson v. Berryhill, which involves a statutory cap on attorney’s fees in Social Security benefit cases.

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Last week the Trump administration asked the Supreme Court to block a ruling by a federal judge in San Francisco in a challenge to a new U.S. policy on asylum, announced last month as thousands of migrants moved from Central America towards the U.S. border. The rule would prohibit immigrants who enter the United States illegally along the southern border from seeking asylum, but U.S. District Judge Jon Tigar barred the government from enforcing the rule, so the government asked the Supreme Court to put that order on hold while the government appeals to the U.S. Court of Appeals for the 9th Circuit and, if necessary, the Supreme Court.

Today the immigration groups challenging the rule weighed in, counseling the justices to stay out of the dispute. The groups received a somewhat unexpected boost from a group of former Department of Justice officials who served in Republican administrations and filed a “friend of the court” brief that also urged the court to deny the Trump administration’s request.

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The following is a series of questions prompted by Stephanie Slater’s “Edward Terry Sanford: A Tennessean on the U.S. Supreme Court” (University of Tennessee Press, 2018). This is the first biography of a justice whose contributions to the Supreme Court in the 1920s were overshadowed in life by those of his more famous colleagues, including Justices Oliver Wendell Holmes and Louis Brandeis, and even in death, because he passed away on the same day as retired Chief Justice William Howard Taft. This work shines a new light on Sanford’s place in history and on the Taft Court.

* * *

Welcome, Stephanie, and thank you for taking the time to participate in this question-and-answer exchange for our readers.

QUESTION: In the opening paragraph of your final chapter, you quote a senator during the unsuccessful 1970 confirmation hearing for Judge G. Harrold Carswell: “I realize that men of limited capacity have served on the Court in the past. … For every Oliver Wendell Holmes, we can dredge up an Edward T. Sanford.” It remains largely true today that, as you write, “Sanford is essentially consigned to oblivion.”

“It is time for Sanford to emerge from obscurity,” you claim. Why?

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It’s an off week for the Supreme Court, so we’ve got another great ensemble cast to take a deep dive into issues that regularly come up on the show. Kate Shaw of Cardozo Law guest hosts with Leah Litman. Anne Joseph O’Connell joins us to discuss the appointment of Acting Attorney General Matthew Whitaker, and Richard Primus gives us the lowdown on different methods of constitutional interpretation.

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Monday round-up

By on Dec 17, 2018 at 6:51 am

At Bloomberg, Greg Stohr reports that “[t]he Trump administration is aggressively trying to take advantage of the U.S. Supreme Court’s new conservative majority, digging deep into the court’s rulebook to seek quick action on divisive issues.” Ariane de Vogue reports at CNN that “[t]he court, with its strong 5-4 conservative majority, is facing requests from an aggressive Trump administration to weigh in early on many of its most controversial policies in areas including immigration, LBGT rights, asylum and reinstating the citizenship question on the census.”

Devin Dwyer reports at ABC News that Supreme Court Justice Ruth Bader Ginsburg, speaking at a naturalization ceremony on Friday “in her first public remarks following a health scare last month, hailed immigrants as the ‘vanguard’ of an effort to remove ‘stains’ of discrimination from American society.” Additional coverage comes from Morgan Gstalter at The Hill.

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This week at the court

By on Dec 16, 2018 at 12:00 pm

The Supreme Court is between sittings.

The justices will meet next for their January 4 conference; John Elwood’s Relist Watch compiles the petitions likely relisted for this conference.

The calendar for the January sitting, which will begin on January 7, is available on the Supreme Court’s website.

 
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A week ago we posted a survey soliciting reader feedback (which can be found here). We received many responses, and we’re grateful to everyone who took the time to answer. We will be considering your responses and suggestions in the days ahead.

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Last month the Supreme Court announced that it would, for the second time, review a case from Virginia challenging the legislative districts drawn in 2011 for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – the idea that legislators relied too much on race when drawing the maps. Today Virginia legislators were back at the court, asking the justices to block proceedings in the lower court aimed at coming up with new maps for the 2019 election until the Supreme Court can rule on the dispute.

The Virginia case is one with which the justices are already very familiar. Last year, the court ruled that a lower court had applied the wrong legal standard when it rejected claims that 12 districts were the product of racial gerrymandering. The Supreme Court upheld one district, but it ordered the lower court to take a fresh look at the other 11 – and, in particular, at whether race was the primary factor used to draw those districts.

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Petitions of the week

By on Dec 14, 2018 at 9:34 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the applicability of the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act to certain suits; whether the establishment clause precludes courts from considering relevant, admissible secular evidence in ordinary trust and property disputes because the litigants are religious parties; and the jurisdiction of federal courts pursuant to Section 301(a) of the Labor Management Relations Act in a suit seeking relief for the violation of a collective-bargaining agreement.

The petitions of the week are:

18-530

Issues: (1) Whether, in ordinary trust and property disputes, the establishment clause precludes courts from considering secular evidence that is relevant and admissible under governing state law merely because the litigants are religious parties; (2) whether, in ordinary trust and property disputes, excluding secular evidence that is relevant and admissible under state law merely because the litigants are religious parties violates the free exercise clause by treating religious parties differently from—and, here, less favorably than—secular parties; and (3) whether, in ordinary trust and property disputes, federal courts sitting in diversity may disregard governing state substantive law and fashion federal common law merely because the litigants are religious parties.

18-580

Issue: Whether federal courts have subject-matter jurisdiction pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), over a complaint for intentional and negligent misrepresentation and declaratory relief, when the lawsuit seeks relief from claims that the plaintiff violated the parties’ collective-bargaining agreement.

18-575

Issue: Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation.

18-581

Issue: Whether the “commercial activity” exception to sovereign immunity in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), is inapplicable to suits challenging conduct inextricably intertwined with a sovereign act of expropriation.

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