Editor's Note :

Editor's Note :

On Monday we expect the court to issue additional orders from its September 26 conference at 9:30 a.m.

Petition of the day

By on Sep 30, 2016 at 11:11 pm

The petition of the day is:

16-104

Issue: (1) Whether the Sixth Circuit’s “unreasonable determination of fact” holding under 28 U.S.C. § 2254(d)(2) precluded the Tennessee Court of Criminal Appeals from relying on the same finding on the same record; (2) whether the Tennessee Court of Criminal Appeals erred in holding that police had probable cause to arrest the petitioner without giving weight to exculpatory facts known to the arresting officers; and (3) whether the Tennessee Court of Criminal Appeals erred in rejecting the petitioner’s County of Riverside v. McLaughlin claim where police held him without a probable cause hearing for the express purpose of “further investigation.”

How closely should courts scrutinize the purpose and effect of state legislation regulating abortion? Linda Greenhouse and Reva Siegel addressed that issue at length in an article published shortly before the Supreme Court struck down a Texas statute regulating abortion in Whole Woman’s Health v. Hellerstedt. Now that the court has spoken, they have written a follow-up essay explaining that the decision could “reshape the abortion conflict” by changing the way courts balance the benefits and burdens of state laws regulating abortion. Most significantly, they argue that the court’s decision casts constitutional doubt on a host of other types of abortion regulation, such as laws prohibiting the use of telemedicine for non-surgical abortions and laws requiring abortion providers to give state inspectors access to patient records.

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Friday round-up

By on Sep 30, 2016 at 8:15 am

Yesterday, the Supreme Court added eight cases to its docket for the upcoming term. Amy Howe covered the orders for this blog. Additional coverage comes from Matt Ford at The Atlantic and Lyle Denniston at Constitution Daily. At Empirical SCOTUS, Adam Feldman points out several notable ways in which the new grants add to the “emerging picture” of the next term.

Mark Walsh in Education Week reports on the grant in Endrew F. v. Douglas City School District, which involves “the level of education benefit a child must receive for a school district to have provided an appropriate level of service under the main federal special education law.” In The Denver Post, John Aguilar reports that the Colorado family who brought the case “were ‘shell-shocked and giddy’” about the court’s decision to review “their case, which has dragged on for half a dozen years.” ImmigrationProf Blog discusses Lynch v. Dimaya, a case asking whether the statutory definition of a “crime of violence” under federal immigration law is unconstitutionally vague. Ruthann Robson at Constitutional Law Prof Blog reports that the court “has added two notable First Amendment speech cases to its docket.” In his eponymous blog, Ross Runkel discusses McLane v. EEOC, a case involving the standard of review courts of appeals should use “when reviewing district courts’ decisions to quash or enforce EEOC subpoenas.”

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Petition of the day

By on Sep 29, 2016 at 11:09 pm

The petition of the day is:

15-8975

Issue: When a child protection services investigator is a government agent for purposes of the right to counsel guaranteed by the Sixth Amendment.

The official start to the Supreme Court’s new term will come on Monday, when the eight justices will convene for a non-argument session at 10 a.m. But the unofficial start came at 9:30 a.m. this morning, when the justices released an initial round of orders from their September 26 conference, which was the first conference to add new cases to their docket since late June. The justices granted only eight new cases today, five fewer than this time last year. And although the eight cases in which review was granted present some interesting questions (for example, a trademark case involving the musical group The Slants and a dispute over credit card surcharges), none of them involves particularly high-profile or divisive issues.

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Today the court granted review in the following cases.

  • Endrew F. v. Douglas County School District: What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.
  • McLane Co. v. EEOC: Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.
  • Nelson v. Colorado: Whether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.
  • Lee v. Tam: Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.
  • Expressions Hair Design v. Schneiderman: Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).
  • Goodyear Tire & Rubber Co. v. Haeger, consolidated with Musnuff v. Haeger: Whether a federal court is required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process.
  • Lynch v. Dimaya: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
  • Lewis v. Clarke: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

We expect the court to issue additional orders from its September 26 conference on Monday, October 3.

Posted in Merits Cases
 
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Thursday round-up

By on Sep 29, 2016 at 7:33 am

Coverage of the prospects for the new Supreme Court term that begins next week comes from Greg Stohr at Bloomberg, who previews the court’s “pared-down docket,” assesses the likelihood of court involvement in controversial areas such as transgender rights and immigration, and concludes that to “a large degree, the Supreme Court’s agenda will hinge on the results of the presidential election.” At The Hill, Lydia Wheeler offers another preview of the upcoming term, highlighting “five of the most interesting cases before the court.” Commentary on the court and the election comes from Bill Blum at Truthdig, who discusses some of the cases on the court’s “sparse roster” and warns that “the next president will have the power to reshape the nation’s ultimate judicial body, and with it, the power to redefine the meaning and application of the Constitution, not just for the next four or eight years, but for a generation or more.” In The Conversation, Eric Segall takes issue with the tendency of “most court watchers” to deplore the current eight-member Supreme Court as “an incomplete, divided legal institution,” arguing that “the longer we have an evenly divided court, the more likely it will be the justices will act more modestly, and take more heed of Hamilton’s warning that they exercise ‘judgment’ not ‘will.’”

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Petition of the day

By on Sep 28, 2016 at 11:02 pm

The petition of the day is:

16-213

Issue: Whether it is fundamentally unfair and violates the due process clause of the 14th Amendment to require a capital habeas petitioner to bring a successive state habeas petition within six months of the discovery of previously unproduced evidence pursuant to Alabama Rule of Criminal Procedure 32.2(c), when Alabama Code § 6-5-440 would have simultaneously barred such a suit.

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Sometimes one Question Presented can mask multiple issues. That seems to be the case with next Wednesday’s argument in Manuel v. City of Joliet, which is based on a federal Section 1983 claim filed by a man held in jail for 48 days on charges that the police allegedly knew to be false and that were later dismissed.

Title 42 U.S.C. §1983 has long provided a vehicle for federal courts to hear civil rights torts claims, and its complicated case law often turns on hoary common law tort doctrine from which Section 1983 sometimes borrows. Elijah Manuel describes his claim, for damages stemming from his allegedly false arrest through various court processes until all charges were dismissed 48 days later, as one for “malicious prosecution” (although he now seems to prefer “unlawful prolonged detention”). The primary question in this case is whether the Fourth Amendment or the due process clause of the 14th Amendment governs such a claim, a question similar to the question that six justices wrote separately about (none commanding a majority) some 22 years ago in Albright v. Oliver.

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Screen Shot 2016-09-28 at 11.50.52 AM

Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.

A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.

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