Justices release January calendar

By on Nov 17, 2017 at 4:10 pm

Today the Supreme Court released the calendar for its January sitting, which begins on January 8. The justices will kick off the new year with not one but two interstate disputes over water: Texas v. New Mexico, involving the apportionment of the waters of the Rio Grande River, and Florida v. Georgia, involving the allocation of the waters of the Apalachicola-Chattahoochee-Flint River Basin. Tuesday, January 9, the second day of the sitting, also features a common theme: the Fourth Amendment. In Byrd v. United States, the justices will consider whether a driver who is not included on a rental-car agreement has a reasonable expectation of privacy in that car, while in Collins v. Virginia they will consider whether the “automobile exception” to the Fourth Amendment allows a police officer to search a car parked on private property without a warrant. And on Wednesday, January 10, the justices will round out the first week of the sitting with Husted v. APRI, a challenge to Ohio’s efforts to keep its voter-registration lists up to date. Husted was originally scheduled for oral argument last week, but the case was rescheduled after one of the attorneys who was slated to argue the case became ill.

The justices resume oral arguments on Tuesday, January 16, after observing the Martin Luther King holiday on Monday, January 15. The four cases scheduled that week are:

Hall v. Hall (January 16): Whether the rule announced in Gelboim v. Bank of America – that a district court’s order dismissing the only claim in a case that is consolidated with other actions for pretrial proceedings in multidistrict litigation is final and appealable – applies to cases consolidated in single-district litigation.

Dalmazzi v. United States (January 16; consolidated with Cox v. United States and Ortiz v. United States): Challenges by servicemembers in the Air Force, who were charged with violating the Uniform Code of Military Justice, to the service by judges on the U.S. Air Force Court of Criminal Appeals concurrently with service on the U.S. Court of Military Commission Review.

Encino Motorcars v. Navarro (January 17): Whether service advisors at car dealerships are exempt from the overtime-pay requirements of the Fair Labor Standards Act.

McCoy v. Louisiana (January 17):  Whether it is unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection.

This post was also published at Howe on the Court.

In its conference of November 21, 2017, the court will consider petitions involving issues such as whether Congress possesses plenary power over Indian affairs and, if so, whether the plenary power expands the Indian commerce clause to authorize the displacement of state rights to territorial integrity; and whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2).

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When Chief Justice John Roberts takes his place in the middle seat on the bench, he is performing his most visible and widely known duty: presiding over the Supreme Court. But the chief justice also has a number of other roles, both within the judiciary and outside the court.

Roberts acted in one of those roles a month ago, when he named several new chairs of committees of the Judicial Conference of the United States, the policymaking arm of the federal judiciary. Consisting of the chief judges and one district judge from each of the federal circuit appeals courts, the Judicial Conference meets twice a year to review rules for the judiciary and to recommend positions on legislation that affects the federal courts. As “Chief Justice of the United States,” Roberts is the head of the entire federal judicial system. In this capacity he is the chair of the 26-member Judicial Conference, presides over the semi-annual meetings and appoints members to committees.

Chief Justice Roberts (Art Lien)

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Friday round-up

By on Nov 17, 2017 at 7:27 am

Briefly:

  • In the National Law Journal (subscription or registration required), Marcia Coyle reports that Fane Lozman “has been a thorn in the side of the city council of Riviera Beach, Florida, for more than a decade[, a]nd now—for the second time in five years—his legal battles with the city have captured the attention of the U.S. Supreme Court.”
  • At Bloomberg Law, Kimberly Robinson reports that “[a]n untimely recusal from Justice Elena Kagan has placed the U.S. Supreme Court’s ethics rules—or the lack of them—under fire again.”
  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and others urge the justices to review a challenge to a class-action settlement by a class member who asserts that her claim was diluted by the inclusion in the class of “members who have no real chance of recovery at trial,” calling on “courts [to] effectively police the class-action system to ensure that all citizens are afforded constitutional due process.”
  • In Take Care’s Versus Trump podcast, Charlie Gerstein and Jason Harrow “respond to a discussion on the Supreme Court podcast First Mondays regarding the government’s recent filing in the Hargan v. Garza abortion case.”

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Petition of the day

By on Nov 16, 2017 at 8:02 pm

The petition of the day is:

17-579

Issue: Whether a magistrate judge has the authority to dismiss a pro se plaintiff’s frivolous or meritless lawsuit when the plaintiff has consented to the magistrate’s authority under 28 U.S.C. § 636(c)(1), but the defendant has not yet been served.

Justice Breyer embarked on a NAFTA tour this past month.

On October 11, Fordham Law School honored Justice Anthony Kennedy with the 2017 Fordham-Stein Prize, which is given annually to “an individual whose work embodies the highest standards of the legal profession.” According to Fordham News, the justice took the opportunity to say a few words about the promises and perils of the internet:

The cyber age is changing not only our technical world but how we think about who we are. And we’re not sure where this revolution is going. We must be careful not to allow this revolution to become what is known as the bypass age. We can’t allow the Internet to bypass the concept of who we are, what our heritage is, and what our destiny is. And that destiny and that heritage are to preserve and transmit freedom to the next generation.

On October 16, Justice Sonia Sotomayor sat for a Q&A session with Queens College students in Flushing, New York, where she lamented the lack of civic engagement today. “For me, I don’t think schools — whether they’re middle schools, high schools, colleges, and sometimes even law schools — are spending enough time inspiring their students … to take charge of their life and be aware of what civics is about.” The Queens Chronicle covered the talk.

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Thursday round-up

By on Nov 16, 2017 at 7:11 am

For USA Today, Richard Wolf reports that “[w]hen a Colorado ‘cake artist’ who refuses to serve same-sex weddings brings his case to the Supreme Court next month [in Masterpiece Cakeshop v. Colorado Civil Rights Commission], he’ll have a tight-knit fraternity of florists, bakers and memory makers in his corner,” hoping for “potential salvation” after “a nearly unbroken string of defeats at the hands of human rights commissions and local, state and federal courts.” At Take Care, Jim Oleske pushes back against the argument, made in an amicus brief on behalf of the baker, that civil rights laws like Colorado’s are “constitutionally vulnerable because the state is ‘discriminating between squarely opposite sides on a deeply divisive moral issue’ and taking sides in a ‘culture war’” over marriage equality.

Briefly:

  • Subscript offers a graphic explainer for Oil States Energy Services v. Greene’s Energy Group, a challenge to the constitutionality of the tribunal that conducts inter partes review, a process used by the U.S. Patent and Trademark Office to determine the validity of existing patents.
  • At The Economist’s Democracy in America blog, Steven Mazie explains why “a wrinkle in the free-speech dispute may spell trouble for another part of the pro-life agenda if California ends up on the losing side” in National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services, including contraception and abortion.

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Petition of the day

By on Nov 15, 2017 at 8:20 pm

The petition of the day is:

17-571

Issue: Whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit, and fee to the Copyright Office, as the U.S. Courts of Appeal for the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the 10th and, in the decision below, the 11th Circuits have held.

Status Quo Watch

By on Nov 15, 2017 at 3:18 pm

John Elwood reviews Monday’s relists.

Monday’s order list was a fitting one as the nation approaches the Thanksgiving holiday: It began with a flurry of excitement, followed by torpor.

The excitement came, of course, from the fact that the court granted review in three relisted cases, all of them raising interesting First Amendment questions: four-time relist National Institute of Family and Life Advocates v. Becerra, 16-1140 (presenting a challenge to a California law requiring crisis-pregnancy centers to provide visitors with certain notices); four-time relist Minnesota Voters Alliance v. Mansky, 16-1435 (involving a challenge to a Minnesota law banning political apparel at polling places); and one-time relist Lozman v. City of Riviera Beach, Florida, 17-21 (concerning whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law). There was excitement of a different kind in three-time relist Reeves v. Alabama, 16-9282, as Justice Sonia Sotomayor (joined by Justices Ruth Bader Ginsburg and Elena Kagan) dissented from denial of cert in a case involving whether a prisoner can make an ineffective assistance of counsel claim when trial counsel does not testify about his or her strategic decisions. With two cases related to National Institute of Family and Life Advocates now being held (A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153), the relist rolls have been trimmed by six cases.

But now things are slowing down. We’ve handchecked the entire docket and there are no new relists going in to Thanksgiving week.  So good news, everybody – we can use this coming week to do just what we ought to be doing this time of year: come together with our families and face the soul-crushing emptiness of our lives.

But seriously: Happy Thanksgiving to (both of) our readers!  Safe travels!

I am thankful for the help of Kevin Brooks and Kent Piacenti in compiling the cases in this post.

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Did the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to habeas review in some court in at least some circumstances — upending the last 50 years of precedent and federal legislation strongly suggesting otherwise. To be sure, Montgomery didn’t say so explicitly. The court held only that a state court sitting in habeas was required to give retroactive effect to the Supreme Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment prohibits the imposition of mandatory life sentences without parole for juveniles. But Vázquez and Vladeck argue that Montgomery‘s holding necessarily rests upon a constitutional right to post-conviction collateral review — even if the court failed to realize it at the time.

wide-shot with Kyle Duncan at lectern for petitioner

Courtroom during oral argument in Montgomery v. Louisiana (Art Lien)

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