Coverage of the prospects for the new Supreme Court term that begins next week comes from Greg Stohr at Bloomberg, who previews the court’s “pared-down docket,” assesses the likelihood of court involvement in controversial areas such as transgender rights and immigration, and concludes that to “a large degree, the Supreme Court’s agenda will hinge on the results of the presidential election.” At The Hill, Lydia Wheeler offers another preview of the upcoming term, highlighting “five of the most interesting cases before the court.” Commentary on the court and the election comes from Bill Blum at Truthdig, who discusses some of the cases on the court’s “sparse roster” and warns that “the next president will have the power to reshape the nation’s ultimate judicial body, and with it, the power to redefine the meaning and application of the Constitution, not just for the next four or eight years, but for a generation or more.” In The Conversation, Eric Segall takes issue with the tendency of “most court watchers” to deplore the current eight-member Supreme Court as “an incomplete, divided legal institution,” arguing that “the longer we have an evenly divided court, the more likely it will be the justices will act more modestly, and take more heed of Hamilton’s warning that they exercise ‘judgment’ not ‘will.’”
The petition of the day is:
Issue: Whether it is fundamentally unfair and violates the Due Process Clause of the Fourteenth Amendment to require a capital habeas petitioner to bring a successive state habeas petition within six months of the discovery of previously unproduced evidence pursuant to Alabama Rule of Criminal Procedure 32.2(c), when Alabama Code § 6-5-440 would have simultaneously barred such a suit.
Sometimes one Question Presented can mask multiple issues. That seems to be the case with next Wednesday’s argument in Manuel v. City of Joliet, which is based on a federal Section 1983 claim filed by a man held in jail for 48 days on charges that the police allegedly knew to be false and that were later dismissed.
Title 42 U.S.C. §1983 has long provided a vehicle for federal courts to hear civil rights torts claims, and its complicated case law often turns on hoary common law tort doctrine from which Section 1983 sometimes borrows. Elijah Manuel describes his claim, for damages stemming from his allegedly false arrest through various court processes until all charges were dismissed 48 days later, as one for “malicious prosecution” (although he now seems to prefer “unlawful prolonged detention”). The primary question in this case is whether the Fourth Amendment or the due process clause of the 14th Amendment governs such a claim, a question similar to the question that six justices wrote separately about (none commanding a majority) some 22 years ago in Albright v. Oliver.
Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.
A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.
It’s the 1980s all over again – shoulder pads, synthesizers, bomber jackets and insider trading. But in 2016, the defendant in the biggest insider trading case of the year isn’t a high-profile Wall Street denizen like Ivan Boesky or “junk bond king” Michael Milken: The main character in this story is a Chicago grocery wholesaler named Bassam Salman. Even if Salman’s case lacks the glitz of other insider trading cases, though, both sides agree that the legal stakes in his case are high. Salman and his attorneys contend that, if his conviction for trading on third-hand information passed to him by an insider’s relative is allowed to stand, the federal government will essentially have free rein to prosecute whenever an insider passes on information to a friend or relative. The federal government counters that a ruling for Salman could exacerbate existing inequities in the stock market by making corporate insiders even more likely to pass on confidential information to friends and family. And lurking in the background is the broader issue, about which the justices have previously expressed concern, of overcriminalization – whether the federal criminal laws are being used to target conduct that Congress did not intend to make a crime.
As the beginning of the October 2016 Term approaches, court-watchers are engaged in previewing some of the cases on the Supreme Court’s docket. At Bloomberg Law, Kevin McGowan reports that although there is “just one labor-related item among the 31 cases granted review” so far by the Supreme Court for the new term, several pending requests for review raise important employment law issues. In the Constitutional Law Prof Blog, Ruthann Robson previews the “handful” of constitutional law cases on the Supreme Court’s docket for the upcoming term. Scott Graham reports for Law.com (subscription required) that with “four IP cases on the docket and several more knocking at the door of certiorari, the U.S. Supreme Court is poised for a banner year of patent, trademark and copyright decisions.” Chicago Tonight offers a discussion by former Supreme Court law clerks of the cases on the docket, notable petitions for review, and the effect on the court of Justice Antonin Scalia’s absence.
The petition of the day is:
Issue: (1) Whether, under section 35 of the Lanham Act, willful infringement is a prerequisite for an award of infringer’s profits for a violation of section 43(a), which prohibits trademark infringement through false representations regarding the origin, endorsement, or association of goods through the use of another’s distinctive mark; and (2) whether and to what extent the defense of laches may bar an award for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. Section 286—the same issue the court granted for plenary review in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC.
The justices of the Supreme Court normally return to the bench to hear the first oral arguments of the new term on the first Monday in October. But this year “First Monday” coincides with Rosh Hashanah, so oral arguments in the October Term 2016 won’t actually begin until Tuesday. In the second case that day, the justices will consider the plight of Lawrence Shaw, a California man who admits that he drained, without permission, another man’s sizeable checking account. His defense? He may have taken the money, but that doesn’t justify his federal conviction for bank fraud, because he didn’t mean to defraud the bank – which didn’t actually lose any money.
On September 29 at 5:30 p.m., the National Press Club will host a discussion between Michael Kramer and James Zirin, author of Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court.” More information about this event is on the National Press Club website.
- In The New Yorker, Jeffrey Toobin surveys the effect of Justice Antonin Scalia’s death on the cases decided at the end of last term and the implications for the court of a Trump or Clinton victory in November, concluding that the “hopes for a liberal Court will begin—or, just as certainly, end—with the results on Election Day.”
- In the National Law Journal, Anthony Franze and Reeves Anderson examine the influence of amicus briefs on last term’s Supreme Court cases, noting that “amici filed more than 860 briefs, participated in more than 90 percent of merits cases, and, more often than not, seemed to capture the justices’ attention.”
- At Empirical SCOTUS, Adam Feldman surveys the attorneys who have argued the largest number of close Supreme Court cases over the past six years and looks for patterns in the way the justices align with repeat attorneys, observing that “although there is some pattern in the voting alignments between attorneys and Justices, some predictable patterns did not play out as might be expected.”
- In the Harvard Business Review, Avinash Dixit and David McAdams apply game theory to the Merrick Garland nomination stalemate, identifying several “strategic obstacles” that make it likely make it likely “that Garland will not be confirmed as a Supreme Court justice during the Obama presidency, despite his qualifications as an accomplished jurist and consensus nominee.”