Briefly Mentioned :

Briefly Noted :

The Supreme Court has dismissed Salt River Project v. Tesla Energy Operations from its merits docket, pursuant to Rule 46, because the parties have settled.

John Elwood reviews Monday’s relists.

All activity in Washington, D.C., may have ground to a halt because of snow, but the Supreme Court has entered a time of unparalleled productivity on the relist front.

The court first thinned the relist ranks this week by granting review in Nielsen v. Preap, 16-1363, which like the recently decided Jennings v. Rodriguez involves the attorney general’s authority to jail aliens who are inadmissible or deportable. That was the one bit of good relist news this week – for the federal government at least.

There was also one bit of decidedly neutral news on the relist front, as Oliver v. McDaniels, 17-682, was dismissed under Supreme Court Rule 46.1 by agreement of the parties. There, the commonwealth of Pennsylvania and the Philadelphia district attorney challenged the grant of habeas relief to a woman convicted of murdering her disabled stepson. The court had requested and received the record, making clear that at least one of the justices was taking a very close look at the case. Perhaps that was enough to nudge the parties together for settlement. And who knows – it may be that the arrival of a new Philadelphia district attorney and his new staff had something to do with the settlement.

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Thursday round-up

By on Mar 22, 2018 at 7:17 am

The Supreme Court issued two opinions yesterday. In Ayestas v. Davis, the justices held unanimously that the lower court had applied too demanding a standard in determining when the funding of services for a criminal defendant in a capital case is necessary. Steve Vladeck analyzes the opinion for this blog, and Subscript has a graphic explainer. For The Washington Post, Robert Barnes reports that “[t]he case returns to lower courts so that they can judge Ayestas’s request under the proper standard.”

In Marinello v. United States, the court held 7-2 that to convict a defendant of impeding the administration of the tax code, the government must prove that the defendant knew of or could have foreseen a tax-related proceeding. Subscript’s graphic explainer is here. At NPR, Nina Totenberg reports that the ruling “has made it harder for the federal government to prosecute people for obstructing IRS enforcement of the tax code.” NFIB suggests that a contrary ruling “would have opened the doors for prosecutions against businesses for engaging in completely legitimate practices simply because the government alleges that business might have had some improper motive.” Coverage of both Ayestas and Marinello comes from Chris Geidner at BuzzFeed News, who reports that “[t]he rulings came a day after the court ruled, at least temporarily, on the side of another criminal defendant — halting Missouri, on a 5–4 vote, from proceeding with the execution of Russell Bucklew.”

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Posted in Round-up

If the Supreme Court unanimously sides with a death-row inmate in a federal habeas case, chances are that the lower-court decision was clearly wrong, and the justices’ own disposition is remarkably narrow. So it was for the court’s ruling today in Ayestas v. Davis, a case about the standard that an indigent prisoner must meet in order to receive funding in support of a habeas petition for “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.” In a unanimous opinion by Justice Samuel Alito, the court held that the federal funding statute (18 U.S.C. § 3599(f)) means what it says — and that the U.S. Court of Appeals for the 5th Circuit erred in interpreting the “reasonably necessary” language to effectively require a prisoner to prove the likelihood of success on the merits in his habeas case before receiving such funding. Instead, “[i]n those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.”

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It was a tale of two arguments yesterday in Upper Skagit Indian Tribe v. Lundgren. The first half of the argument featured most of the justices offering scorching criticism of the idea that the tribe could be immune from state jurisdiction over off-reservation land; the second half featured the same group of justices complaining to counsel for the landowners that the argument in their favor was not ripe for decision.

The case is refreshingly simple. The Upper Skagit Indian Tribe purchased a parcel of land north of Seattle near the Canadian border; the land adjoins but is outside the tribe’s reservation. The Lundgren family has owned land just to the south of that parcel for many decades, and discovered shortly after the tribal purchase that a strip of the land that they have been occupying all those years (demarcated by a World War II-era fence) was included within the land sold to the tribe. When the tribe refused to sell the parcel to the Lundgrens, they filed a suit to “quiet” title, claiming that their use of the land for the last two generations had given them title to the strip by “adverse possession.”

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Petition of the day

By on Mar 21, 2018 at 6:15 pm

The petition of the day is:


Issues: (1) Whether an assignee of an accrued claim who is not a legal or beneficial owner of a copyright has standing to sue for infringement, as the U.S. Court of Appeals for the 5th Circuit ruled in Prather v. Neva Paperbacks, Inc., or does not have standing as the U.S. Court of Appeals for the 9th Circuit ruled in Silvers v. Sony Pictures Entertainment, Inc.; (2) whether an unequivocal transfer of copyright ownership, together with accrued claims, is effective to give the transferee the statutory right to sue as legal owner of the copyright, even when the purpose of the transfer is to facilitate an infringement action; and (3) whether “beneficial owner,” which the Copyright Act does not define, extends to an assignee of accrued claims who has pre-existing interests in the copyright and is injured by infringement.

The Supreme Court is slowly plodding through the 2017 term. The court began the term at a historically sluggish pace, and although the justices have picked up the pace in certain areas, other signs point to the possibility that the court’s output this term will continue at the same rate.

First, looking at the court’s signed decision output since the 1946 term, the trend is clearly downward.

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At SCOTUSblog, we try to provide the public with access to as much comprehensive information about the Supreme Court as we can. Many of our efforts focus on case coverage and commentary, whether through our own reporting and analysis, online symposia of outside contributors or links in our daily round-ups to content available elsewhere on the internet.

In addition to case reporting, we think it’s important to offer readers quantitative data about the court. Statistical analysis opens up a different perspective on the court than can be gained from looking at cases individually. For this reason, we maintain a statistics page about the present term and publish annual stat packs. Publisher Tom Goldstein’s stat packs predate SCOTUSblog and go back to the October 1995 term.

To expand our ability to provide sophisticated empirical analysis of the Supreme Court, we’re partnering with Adam Feldman of the Empirical SCOTUS blog. Over the past two years, Feldman has taken the lead in providing the public with in-depth empirical analysis of contemporary and historical Supreme Court issues. His work ranges from examining Supreme Court attorneys, the justices, and other actors who make the Supreme Court work as an institution to analyzing decisions and oral arguments.

Our partnership will be simple: Feldman will continue blogging at Empirical SCOTUS as before, only now he’ll offer us his work for cross-posting on our site. In his first post, he’ll look at the pace of cert grants, decisions and arguments so far this term.

Feldman has a law degree from U.C. Berkeley’s Boalt Hall School of Law and practiced law as a trial lawyer for three years before starting a Ph.D. in Political Science from the University of Southern California. He has 11 published or forthcoming articles in law and peer-reviewed journals and is completing a postdoctoral fellowship through Columbia Law School.


In the pre-dawn hours this morning, the website of the Office of Personnel Management delivered the news about whether an impending snowstorm in the Washington area would close executive-branch agencies.

“FEDERAL OFFICES in the Washington, DC area are CLOSED,” the notice said.

But anyone who has been paying attention knows that the OPM does not rule the Supreme Court’s decision on whether to open on a day such as this. And, indeed, with opinions and one oral argument scheduled, the court decides to carry on.

“The Supreme Court building is open to the public from 9 a.m. to 4:30 p.m.,” the court’s website announces matter-of-factly, mentioning the one oral argument and that the court “may announce opinions,” with no particular acknowledgment of the weather.

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Argument transcript

By on Mar 21, 2018 at 1:37 pm

The transcript in Upper Skagit Indian Tribe v. Lundgren is available on the Supreme Court’s website.

Posted in Merits Cases

The oral argument in Cyan, Inc. v. Beaver County Employees Retirement Fund was notable for the repeated expression by the justices of frustration at the “gibberish” Congress provided in the Securities Litigation Uniform Standards Act of 1998. I suggested in my post about the argument that it would be surprising if they went so far as to hold that the language has no meaning at all. But yesterday’s opinion by Justice Elena Kagan for a unanimous court comes pretty close to doing precisely that; a plain-language summary of this opinion would simply state that “if Congress wants to make any important changes to litigation of federal-law securities cases in state courts, it is going to have to be a lot more specific than it has been to date.”

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