Editor's Note :

Editor's Note :

On Tuesday, we expect the Court to issue orders from its May 26 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. We will begin live-blogging at 9:25 a.m.

It’s a sure sign that the end of the Term is drawing closer:  briefs filed by the Office of the Solicitor General, at the Court’s invitation, expressing the views of the United States in cases in which the Court is considering whether to grant review.  Submitting the briefs in mid- to late May gives the Justices an opportunity to consider them and decide whether to grant review in the cases before their summer recess.  On May 23 and 24, the federal government filed five such briefs, recommending that certiorari be granted in three cases.  (In a brief filed on May 20, the government also recommended that the Court grant review in Fry v. Napoleon Community Schools; I discuss that case in more detail in a post on my own blog.) Continue reading »

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This week at the Court

By on May 29, 2016 at 12:00 pm

On Tuesday, we expect orders from the May 26 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. On Thursday, the Justices will meet for their June 2 Conference; our list of “petitions to watch” for that Conference will be available soon.


Petitions of the day

By on May 27, 2016 at 11:10 pm

The petitions of the day are:


Issue: (1) Whether the Court of Appeals, in finding that Respondents’ Fifth Amendment claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality where Respondents challenge the actions taken in the immediate aftermath of the attacks of September 11, 2001 regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of the September 11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers; (2) whether the Court of Appeals, in denying qualified immunity to Petitioner Ziglar erred: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar’s specific conduct was at the time clearly established, instead defining the “established law” at the high level of generality that this Court has warned against; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law; and (3) whether the Court of Appeals erred in finding that Respondents’ Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal , and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar’s liability, but fall short of stating plausible claims.


Issue: (1) Whether the judicially inferred damages remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, should be extended to the novel context of this case, which seeks to hold the former Attorney General and Director of the Federal Bureau of Investigation (FBI) personally liable for policy decisions made about national-security and immigration in the aftermath of the September 11, 2001 terrorist attacks; and (2) whether the former Attorney General and FBI Director are entitled to qualified immunity for their alleged role in the treatment of respondents, because it was not clearly established that aliens legitimately arrested during the September 11 investigation could not be held in restrictive conditions until the FBI confirmed that they had no connections with terrorism; and (3) whether respondents’ allegations that the Attorney General and FBI Director personally condoned the implementation of facially constitutional policies because of an invidious animus against Arabs and Muslims are plausible, as required by Ashcroft v. Iqbal, in light of the obvious alternative explanation—identified by the Court in Iqbal—that their actions were motivated by a concern that, absent fuller investigation, the government would unwittingly permit a dangerous individual to leave the United States.


Issue: (1) Whether, as the Second Circuit held, the judicially implied cause of action for damages against individual officials recognized in Bivens v. Six Unknown Named of Federal Bureau of Narcotics, extends to detentions of foreign nationals after the September 11 attacks; (2) whether qualified immunity was property denied, notwithstanding the specific circumstances confronted by petitioners—including the FBI’s terrorism designations for respondents—because the Constitution “clearly” prohibits any “condition of pretrial detention not reasonably related to a legitimate governmental objective,” or imposed “because of . . . race, ethnicity, religion, and/or national origin;” and (3) whether the allegations against Hasty and Sherman (the Warden and Associate Warden at the Metropolitan Detention Center)—such as the assertion that they “knew” the FBI’s terrorism designations for respondents were wrong but imposed otherwise mandatory confinement conditions because they had discriminatory intent—are sufficiently plausible to state a claim under Ashcroft v. Iqbal.


In 1875, Chae Chan Ping left San Francisco for China with a certificate promising him re-entry upon his return. Congress had recently banned new laborers from China, but it had made an exception for previous residents who held certificates like Ping’s. While Ping was gone, however, Congress expanded the ban to include even certificate-holding previous residents – a complete surprise to Ping when he arrived back in San Francisco twelve years later. Ping’s lawsuit, the Chinese Exclusion Case, would go before the Supreme Court in 1889 and, as Polly Price argued in a recent lecture sponsored by the Supreme Court Historical Society, provide a foundation for immigration case law in the Progressive Era.

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Relist Watch Redux

By on May 27, 2016 at 11:00 am

John Elwood reviews Monday’s relisted cases.

It’s the Friday before Memorial Day, which means if you’re reading skimming this post, you’re probably experiencing an interminable wait in an airport security line, wearing a neck pillow, and actively loathing the family of four ahead of you. If you’re looking for another outlet for your misanthropy, you’ve come to the right place. The Elite Eight added a fab five new relists to this week’s tally, meaning you’ve got a lot of absent-minded scrolling ahead of you as you inch your way to the body scanners. Take solace in the fact that you’ll get to your destination . . . eventually. (I say having reached my Final Destination for the weekend.)

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Friday round-up

By on May 27, 2016 at 6:57 am

Coverage relating to the death of Justice Antonin Scalia and the nomination of Chief Judge Merrick Garland to succeed him comes from Mike DeBonis of The Washington Post, who reports that a Utah newspaper mistakenly published Sen. Orrin Hatch’s op-ed on his meeting with Garland before the meeting took place.  Commentary comes from a podcast at Advice and Consent and from Ed Kilgore, who in New York suggests that Donald Trump’s release of a list of potential nominees “might allow conservatives paranoid about past SCOTUS ‘betrayals’ by Republican presidents and/or anxious to push their particular candidates and constitutional theories to insist on other candidates — and presidents — in the future.”  Continue reading »

Posted in Round-up

Petition of the day

By on May 26, 2016 at 11:10 pm

The petition of the day is:


Issue: (1) Whether insurance fraud investigators are covered by the administrative exemption from the Fair Labor Standards Act’s overtime-pay requirement, 29 U.S.C. § 213(a), as the Sixth Circuit has held in conflict with the Fourth Circuit’s judgment below; and (2) whether an exemption to the Fair Labor Standard Act’s overtime-pay requirement must be narrowly construed and established by clear-and-convincing evidence, as the Fourth Circuit held, in conflict with fundamental principles of statutory construction and the decisions of every other court of appeals.

SCOTUS Map: April and May 2016

By on May 26, 2016 at 3:25 pm

April and May were busy months for the Supreme Court Justices, as they crossed the country to adjudicate moot courts, deliver commencement speeches, and give remarks at judicial conferences.

Justice Samuel Alito and Justice Elena Kagan both traveled to New York in early April to serve as judges for moot court finals. Alito sat on the judges’ panel for the annual Irving R. Kaufman Memorial Securities Law Moot Court Competition at Fordham Law School on April 3, while Kagan helped adjudicate the final argument in the Orison S. Marden Moot Court Competition at New York University School of Law on April 4. While at NYU, Kagan also participated in a question-and-answer session, which The New York Times covered. Kagan complimented Chief Justice John G. Roberts for his leadership after Justice Antonin Scalia’s death: “I give great credit to the chief justice, who I think in general is a person who is concerned about consensus building, and I think all the more so now.”

SCOTUS Map April 2016

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When is retirement not really retirement? Just ask Justices David Souter, Sandra Day O’Connor, and John Paul Stevens.

The three Justices may have retired from the Supreme Court but not from public life. All three remain actively involved and visible in various ways, although they have left behind the steady review of Supreme Court petitions, the weekly conferences among the Justices, and the grind of work in Washington, D.C.

The three remain active in different ways. Souter sits regularly on the U.S. Court of Appeals for the First Circuit in Boston. Stevens is a frequent speaker at legal and judicial conferences. O’Connor is actively involved in promoting civic literacy among young people.

Since the death of Justice Antonin Scalia on February 13, as the Court operates with only eight Justices, there has been more interest in the whereabouts and activities of the three retirees. Before March 16, when President Barack Obama nominated Judge Merrick Garland to fill the vacancy, there were even calls in a few quarters for O’Connor to return to hold the seat until the next president fills the vacancy with a long-term appointment. However, the Republican senators refusing to act on Garland’s nomination were no more likely to move O’Connor’s nomination.

What are the three retired Justices doing with their free time?

Continue reading »


Thursday round-up

By on May 26, 2016 at 7:01 am

In the ABA Journal, Mark Walsh analyzes the Court’s recent decision in Luis v. United States, in which the Court held that the pretrial freeze of a criminal defendant’s untainted assets violates the Sixth Amendment right to counsel of choice.  Commentary on the ruling comes from Dan Himmelfarb and Travis Crum, who in The National Law Journal (via the Mayer Brown website) suggest that the Court’s opinion “leaves a number of questions unanswered.”    Continue reading »

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