On April 18 at 6 p.m. PDT, the bar association of San Francisco will host a panel discussion entitled “Trump, the Constitution and the Judiciary.” Topics will include Judge Neil Gorsuch’s nomination, the new solicitor general staff and the near-term prospects for Supreme Court litigation. Speakers will include Pamela Karlan, Rory Little, Aimee Feinberg and David DeGroot; Ben Feuer and Josh Patashnik will serve as moderators. More information about and registration for this event, which will be held at the bar association’s conference center, are available at this link.
Yesterday the court heard oral argument in two cases. The first was Turner v. United States, which involves the scope of the prosecution’s duty to disclose exculpatory evidence under the Brady rule in a 1984 Washington, D.C., murder case. Amy Howe analyzes the argument for this blog. Coverage comes from Robert Barnes and Keith Alexander in The Washington Post, who report that “the two former prosecutors on the Supreme Court — Justices Sonia Sotomayor and Samuel A. Alito Jr. — asked detailed questions about trial strategy, recanted testimony and the extended jury deliberations that came after the sensational six-week trial.” Additional coverage comes from Adam Liptak in The New York Times.
I think that neither the merchants nor the card networks will be jubilant about the Supreme Court’s narrow decision yesterday in Expressions Hair Design v. Schneiderman, which does little except prolong the litigation about the constitutionality of a New York statute that prohibits merchants from charging a surcharge to customers who use credit cards.
For many years, the statute (like a now-expired provision of the Truth in Lending Act that it copies) was largely irrelevant, because the rules of the major credit-card networks prohibited merchants from discriminating against customers who use their cards. Those rules have recently come under antitrust attack, and the networks have entered into settlements that remove those restrictions in many contexts. Thus, statutes like the New York statute are now the main constraint on merchant behavior in this context.
The petition of the day is:
Issue: Whether the Antiterrorism and Effective Death Penalty Act’s one-year limitations period tolls during state collateral review for the time between an adverse decision by a lower state court and the deadline for filing of an appeal when no timely appeal is filed.
The law of asset forfeiture has become intricate and complicated since Congress enacted and subsequently amended several forfeiture statutes, beginning in 1970. Some of those complexities were explored in Wednesday morning’s argument in Honeycutt v. United States. But as Assistant to the Solicitor General Brian Fletcher finally pointed out to the court, some 40 minutes into the argument, much of the discussion was “ancillary … [to] the question presented.” Perhaps the justices were tired from the preceding hour of argument in a difficult Brady case, or perhaps Honeycutt is truly one of the “easy” cases this term. But the court did not seem troubled or divided by Honeycutt’s argument that a defendant who did not obtain proceeds from a crime cannot be ordered to forfeit under a statute, 18 U.S.C. § 853(a), whose text requires forfeiture of “proceeds the person obtained.”
Most oral arguments at the Supreme Court focus heavily on principles of law. But today in Turner v. United States and Overton v. United States, the discussion focused instead almost exclusively on the facts – such as the size of the garage in which the body of 48-year-old Catherine Fuller was found and the scenarios that prompted two of the men who allegedly participated in Fuller’s murder to plead guilty and testify for the prosecution. The advocacy in the case was excellent all around, but the justices were curiously subdued, making it difficult to predict how they might rule on the question before them: whether the rights of seven other men who were convicted for Fuller’s murder (an eighth man died in prison) were violated by the prosecution’s failure to turn over evidence that might have cleared them.
It has been over three decades since Fuller was robbed, viciously beaten and sodomized in the District of Columbia’s H Street NE neighborhood. But all three lawyers who argued today displayed such an impressive command of the facts of the case that it sometimes seemed as if the crime had occurred in October 2016, rather than 1984, with the eight justices serving as a trial court.
In its conference of March 31, 2017, the court will consider petitions involving issues such as whether the Alien Tort Statute categorically forecloses corporate liability; whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment; and whether the U.S. Court of Appeals for the 10th Circuit incorrectly narrowed qualified immunity when it held that officers clearly lacked reasonable suspicion for the brief detention of a driver after a valid traffic stop until a drug detection dog arrived and alerted to the driver’s car.
We live-blogged this morning as the court released opinions. The transcript is available at this link.
Today the court will hear oral argument in two cases. First up is Turner v. United States, which involves the scope of the prosecution’s duty to disclose exculpatory evidence under the Brady rule. Amy Howe previewed the case for this blog. Alla Khodykina and Rachael Hancock at Cornell University Law School’s Legal Information Institute also provide a preview. The second argument today is in Honeycutt v. United States, which asks whether co-conspirators can be jointly and severally liable for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy. Rory Little had this blog’s preview. Andrew Maury and Scott Benjamin Cohen preview the case for Cornell.