The petition of the day is:
Issues: (1) Whether the due process clause of the Fifth Amendment permits the government to prosecute a defendant who lacks minimum contacts to the United States; and (2) whether foreign criminal defendants must voluntarily travel to the United States, and subject themselves to jurisdiction here, to challenge the government’s constitutional authority to hale them into court in this country.
John Elwood reviews the latest relists, with the musical assistance of a retired elf. Not that one.
I’m dreaming of some slight relists
Not like the ones we used to know
Where petitions prevail and readers fail
To gripe that we used this song before
Our story begins late at night at the desk of a sour law clerk named Ebenezer Scotus. (And who could blame Ebenezer for being sour, having been given one of those rare names that have been forever spoiled by previous users?) No matter how deep and persistent the circuit split, no matter how important and recurring the issue, no matter how ideal the vehicle, Ebenezer’s pool-memo recommendation was always the same: “Humbug! Deny!” But that evening in his cold, dark apartment, Ebenezer was visited by the ghost of the #AppellateTwitter lawyer he’d worked with years earlier. At first, Ebenezer thought the vision was just the price of his ill-advised decision to add french fries to his late-night burrito. But then the ghost came closer: He was hideous, old, and withered, and was shackled and dragging reams of rejected cert petitions. The ghost warned that Ebenezer would suffer the same fate if he did not heed three spirits who would visit him.
The justices logged 174 events in the 2016 calendar year, seven of which took place in December.
The Supreme Court justices had a light extracurricular schedule this December – with the exception of Justice Stephen Breyer, who remained active on the speaking circuit.
Yesterday the court released its argument calendar for the February sitting, which begins on Tuesday, February 21. Amy Howe reports on the schedule for this blog. Additional coverage comes from Lyle Denniston at his eponymous blog, who notes that the schedule once again “omits three cases that have been on hold since last January and, under normal timing, would have been heard weeks ago,” and that “appear to have been postponed repeatedly because the Justices have reason to think a decision in each may split the Court 4-to-4, settling nothing.”
At Bloomberg, Greg Stohr reports that Donald Trump is narrowing his list of potential Supreme Court nominees and “plans to move quickly, possibly even naming his nominee before he is sworn in on January 20.” In American Greatness, Mark Pulliam asserts that Trump’s future Supreme Court appointments are essential to his success as a “disrupter,” arguing that for “Trump to succeed in his mission to ‘drain the swamp,’ he has to bat 1.000 with his SCOTUS appointments—the equivalent of picking Scalia, Thomas, and Alito seriatim,” because only justices in that mold will “resurrect the long-neglected limits on federal government power that the United States Supreme Court abandoned during the 1930s, to enable the alphabet soup of New Deal agencies and legislation.”
The petition of the day is:
Issues: (1) Whether this court should resolve the circuit conflict over whether, for the purposes of the 100-plaintiff requirement for mass action jurisdiction under the Class Action Fairness Act, specifically 28 U.S.C. § 1332(d)(11)(B), jurisdiction is proper where multiple suits, each involving fewer than 100 plaintiffs, are proposed to be tried jointly and, when combined, encompass the claims of more than 100 plaintiffs, as the U.S. Courts of Appeals for the 7th, 8th and 9th Circuits hold, or whether mass action jurisdiction arises only if a single suit contains the claims of at least 100 plaintiffs, as the U.S. Court of Appeals for the 6th Circuit now holds; and (2) whether this court should resolve the circuit conflict over the time at which citizenship should be determined under CAFA’s exceptions to federal jurisdiction, where the courts of appeals use three different times for such determination—some courts determine jurisdiction at the time the complaint was filed, while others determine citizenship at the time the case became removable, and the 6th Circuit now determines citizenship at the time the cause of action arose.
The Supreme Court released the argument calendar for the February sitting today. Over a two-week period, the justices will hear oral arguments in seven cases on five different days, beginning on Tuesday, February 21. (Monday, February 20 is a federal holiday.) Only two of the five days – Tuesday, February 20 and Monday, February 27) – will feature two oral arguments; the remaining three days will feature only one argument per day.
Three cases that were granted in January 2016 – Trinity Lutheran Church v. Pauley, Murr v. Wisconsin and Microsoft v. Baker – are once again absent from the argument calendar. Under the court’s normal procedures, they likely would have been slated for oral argument by fall of this year. There has been no explanation from the court for the delay in hearing oral argument in those cases, but all three address hot-button issues that could easily give rise to a four-four tie in the wake of the death of Justice Antonin Scalia. The justices are almost certainly delaying the oral argument in the hope that a ninth justice will be appointed, hoping to avoid a tie vote that would leave the law unsettled.
A list of the cases on the February calendar, along with a brief description of the issue in the case, follows the jump. Continue reading »
The following is a series of questions posed by Ronald Collins on the occasion of the publication of “My Own Words” by Ruth Bader Ginsburg with Mary Hartnett and Wendy W. Williams (Simon & Schuster, 2016, pp. 400).
Welcome, Mary and Wendy, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of this remarkable book chock full of information about the life and times of Justice Ruth Bader Ginsburg.
Hartnett & Williams: Thank you so much, Ron, for this opportunity. Like most everyone who follows the Supreme Court closely, we are fans and close followers of SCOTUSblog.
Lately, the Supreme Court seems to be sending a message to the lawyers who practice before it: Do not ask the court to grant review of an issue and then try to change the subject.
In several recent cases, the justices have voiced frustration at what they think may be attempts to change the focus of arguments after the court has agreed to hear a case. If the justices believe the issues have shifted, they at the very least may admonish the lawyers. In more extreme circumstances, as happened recently, they may dismiss a case outright.
Linda Greenhouse warns in a column in The New York Times that the extremism of Donald Trump’s cabinet picks suggests that Trump may nominate “one of the most conservative of all federal judges,” William Pryor, to the court; she maintains that a filibuster of the nomination by Senate Democrats “may well succeed,” because the “executive branch selections are so off the wall … that objections to a high profile, lifetime, far-right appointment to the Supreme Court will tap into public sentiment that is now expressed as mere bafflement but soon enough will turn to real unease.” In a Bloomberg View column, Noah Feldman argues that the Senate’s refusal to consider the nomination of Chief Judge Merrick Garland to the Supreme Court has created “a new norm” in which the “Senate will confirm Supreme Court appointees only if the president and the Senate majority are of the same party.” At PrawfsBlawg, Howard Wasserman assesses “who within or around the Court comes out ahead and who behind in” the Garland nomination “debacle”; in the first category he points to Justice Elena Kagan, who “might have been the intellectual center of a liberal Court,” and he includes Chief Justice John Roberts, who “avoids the prospect of being a Chief regularly in the minority and assigning dissents rather than majority opinions,” in the second.
The petition of the day is:
Issue: Whether the due process clause permits a forum state to exercise specific personal jurisdiction over a nonresident defendant based solely on that defendant’s placing component parts into the stream of commerce by selling them to third parties who make finished products that foreseeably may come to the forum state.
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On December 1, Justice Stephen Breyer spoke with U.S. Chief Technology Officer Megan Smith at an evening salon hosted by the Institute for Education.
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