Editor's Note :

Editor's Note :

On Monday morning we expect orders at 9:30. On Tuesday at 10 a.m. we expect one or more opinions in argued cases; we will be live-blogging at this link at approximately 9:45.

Petition of the day

By on Mar 27, 2015 at 10:20 pm

The petition of the day is:


Issue: Whether the minimum required culpability state for denying a bankruptcy debtor a discharge of a tax debt based on the debtor's participation in a disallowed tax shelter, and spending decisions in light of a known or potential tax debt is: (1) negligence (i.e., the debtor should have known better than to participate in the tax shelter or spend money on something other than a present or potential future tax bill), per the analysis of several circuits including the Tenth Circuit in In re Vaughn; (2) specific intent (i.e., the debtor must specifically intend for his spending to defeat the IRS's ability to collect a tax debt), per the Ninth Circuit's analysis in Hawkins v. Franchise Tax Board; (3) the mental state of knowingly (i.e., the debtor knows it is practically certain that his spending will put money beyond the reach of the IRS's collection efforts), in conformity with this Court's decisions equating willfulness with knowledge; or (4) some other mental state.


At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on the procedure to be used to determine if an individual is mentally disabled and thus cannot be given a death sentence.  In Brumfield v. Cain, arguing for the Louisiana death-row inmate will be Michael B. DeSanctis of the Washington, D.C., office of Jenner & Block LLP.  Representing the state warden will be Premila Burns of Baton Rouge, an assistant district attorney for the East Baton Rouge Parish.  Each lawyer will have thirty minutes of time.


Over the years, the Supreme Court has created a fairly short list of categories of individuals who cannot constitutionally be executed for their crimes.   The list includes juveniles, the mentally insane, anyone who commits a crime other than murder, and, most recently, an individual who is mentally disabled.  Although each decision in this series supposedly imposed a flat ban on a death sentence for the individual or the crime, the Court has struggled the most with clarifying the mental disability category.  It returns to that effort next week.

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This week at the Court

By on Mar 27, 2015 at 1:24 pm

On Monday the Court will hear oral argument in Brumfield v. Cain. The Court will also issue orders from the March 27 Conference.

On Tuesday the Court will hear oral argument in Kimble v. Marvel Enterprises and Commil USA, LLC v. Cisco Systems.  We also expect one or more opinions in argued cases; we will be live-blogging at this link at approximately 9:45 a.m.

On Wednesday the Court will hear oral argument in Bullard v. Hyde Park Savings Bank and Harris v. Viegelahn.

This is the final week of the March sitting.


Relist Watch

By on Mar 27, 2015 at 12:55 pm

John Elwood reviews Monday’s relisted cases.

After a customary mid-March break to allow all sentient life on Earth time to research and complete its brackets (history may view picking Villanova for the championship game as more Millard Fillmore than Abraham Lincoln), the Court is back in session, and so is the Watch.  Let’s take a look at how the unstoppable favorites and plucky underdogs did this week.

We start, as usual, with victors.   DIRECTV v. Imburgia, 14-462, pulled off an upset in double overtime.  After years of talking trash about whether an arbitration agreement requiring application of state law means state law before federal law has preempted provisions inconsistent with the Federal Arbitration Act, or after preemption, the Court will have to put its money where its mouth is.

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At its Conference on March 27, 2015, the Court will consider petitions seeking review of issues such as equitable tolling in habeas proceedings, First Amendment rights of students, and a court’s denial of a criminal defendant’s constitutional right to testify.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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Posted in Everything Else

Scalia whole picThe Originalist is playing at the Arena Stage in Washington, D.C. from now until May 3. John Strand, the playwright, was kind enough to answer a few questions:

Question: You say that Justice Antonin Scalia intrigued you because he’s “kind of a lightning rod.  Half the country thinks of him as a monster and half thinks of him as a hero.” When you set out to write the play, was the goal to create a biographical story about Justice Scalia, or to write an allegory about deep divisions?

Strand: As a playwright, I was intrigued by the character of Justice Scalia, but not with an unauthorized biography in mind. The Originalist is not a bio play, or a documentary, or a law lecture (for which I am utterly unqualified and no theater audience would tolerate, anyway). I wanted to use this combative, almost operatic figure to explore how two people on opposite sides of a political, social, and even legal spectrum can take a step toward one another, begin to listen, learn to hear and respect the other’s argument. Is there still a political “middle” and what does it cost to meet there?

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Posted in Everything Else

Friday round-up

By on Mar 27, 2015 at 6:38 am


  • On Wednesday, the Court heard oral arguments in the challenge to an EPA rule that restricts the release of mercury and other pollutants from power plants. Writing for The Economist, Steven Mazie recaps the issues in the case and the oral argument.
  • In an interview at the blog of the Harvard Law and Policy Review, Virginia Solicitor General Stuart Raphael discusses the amicus brief that his state filed in the challenges to state bans on same-sex marriage.
  • At Cato at Liberty, Walter Olson weighs in on Wednesday’s opinion in Young v. United Parcel Service, in which the Court sent the case of a female UPS driver who became pregnant back to the lower court for it to reconsider its ruling.
  • At the blog of the National Conference of State Legislatures, Lisa Soronen looks at Wednesday’s opinion in the Alabama redistricting cases, in which the Court sent a Republican plan for state legislative districts back to the lower court for further consideration.
  • At Slate, Cristian Farias discusses Monday’s oral argument in City and County of San Francisco v. Sheehan, in which the Court is considering the duties that law enforcement officers owe to the mentally disabled and ill under the Americans with Disabilities Act.

A friendly reminder:  We rely on our readers to send us links for the round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

Posted in Round-up

Petition of the day

By on Mar 26, 2015 at 10:20 pm

The petition of the day is:


Issue: Whether the dormant commerce clause permits a local law that directly conscripts out-of-state manufacturers to enter the locality and to assume all costs and responsibility for collecting and disposing of unused medicines from local residents, for the avowed purpose of shifting the costs of this traditional government function from local taxpayers and consumers to foreign producers and consumers.

spiderman string shooterIt’s patent day at the Court on the last day of March, with a pair of arguments in patent cases. First up is Kimble v. Marvel Enterprises. You should be forgiven if the style of the case leads you to expect a copyright or trademark case involving one of Marvel’s characters. But no. This is a patent case, involving a patent for a toy, which could be (and has been) used for a Spider-Man toy that allows children to shoot foam string in the way that Spider-Man might shoot a web.

The parties fell into a dispute when Marvel (the deep-pocket defendant) made such a toy, having previously met with Kimble (the inventor). After several years of litigation, the parties settled. In the settlement, Kimble conveyed the patent to Marvel, in return for royalties of three percent of product sales. Perhaps because Marvel is more accustomed to litigation about copyright and trademark issues, Marvel’s counsel (like Kimble’s) apparently was unaware of the Supreme Court’s 1964 decision in Brulotte v. Thys Co., holding that a patent-holder cannot collect royalties after the patent expires.

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An opinion on opinions

By on Mar 26, 2015 at 10:55 am

When the curtain rose for oral argument in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, on November 3, everyone thought the issue was whether a statement of opinion that turns out to be false gives rise to liability when it is included in a registration statement in connection with a stock offering under the Securities Act of 1933. The defendant Omnicare argued that liability could attach only if the opinion was not genuinely held by the speaker at the time. The plaintiff pension fund argued that falsity was enough because the 1933 Act creates a scheme of absolute liability that does not require any showing of scienter on the part of the registrant.

When the curtain came down following the argument, I predicted that the court would find a way to affirm the holding by the Sixth Circuit that an opinion can be a fact for 33 Act purposes, and that scienter is not required, but that the Court would find some way to hold that the particular statements at issue in Omnicare were voluntary statements of opinion that should be viewed as outside the ambit of strict liability.

In its decision issued on Tuesday, March 24, the Court appears to have decided another case entirely, holding (1) that opinions themselves are not facts and cannot provide the basis for 33 Act liability as such (unless not genuinely held by the speaker at the time), but (2) that a statement of opinion is actionable as an omission if it implies that the speaker had a reasonable factual basis for the opinion when the speaker had no such grounds for the statement. (Then again, it is not up to the parties to define the legal issues.) The Court’s opinion was delivered by Justice Elena Kagan, and concurrences were filed by Justice Antonin Scalia and Justice Clarence Thomas. In short, the decision was virtually unanimous. Continue reading »

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