Editor's Note :

Editor's Note :

There is a possibility of opinions on Tuesday at 10 a.m. We will begin live-blogging at 9:45 a.m.
On Tuesday the court hears oral argument in Abbott v. Perez. Amy Howe has our preview.
On Tuesday the court also hears oral argument in Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. Amy Howe again has our preview.

Petition of the day

By on Apr 23, 2018 at 6:33 pm

The petition of the day is:


Issues: (1) Whether exculpatory evidence that is inadmissible can be material under Brady v. Maryland; and (2) whether a court evaluating the materiality of suppressed evidence under Brady against a confession should take into account a post-trial judicial finding that the defendant was an intellectually disabled child.

The U.S. solicitor general’s office is particularly busy during this final week of argument, with the government appearing in each of the six cases being argued.

Today, the justices will hear three cases in which the federal government is a party. The first is Lucia v. Securities and Exchange Commission, about whether that agency’s administrative law judges are “officers” of the United States under the Constitution’s appointments clause. That argument will—arguably—be the most interesting of the day, veering from Montesquieu to President Chester Arthur to the Warren Commission that investigated the death of President John F. Kennedy.

The second case is Pereira v. Sessions, which presents a more technical question about whether the government can stop the clock on an undocumented alien’s accrual of residency time by issuing a notice to appear for removal proceedings that omits key information.

But it is the third case—a rare post-lunch argument—that has reporters and others hanging around. That is not so much because of the question presented in Chavez-Meza v. United States, about whether federal district judges must provide more of an explanation for their sentencing decisions in certain circumstances, as because of who will argue on behalf of the government.

Deputy Attorney General Rod Rosenstein, the second-ranking official in the Department of Justice and someone who has been in the news of late, has chosen this case to participate in the tradition of having the attorney general or other high-ranking department official deliver a Supreme Court argument.

Deputy Attorney General Rod J. Rosenstein (Art Lien)

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When the justices started their last week of arguments this morning with Lucia v. Securities and Exchange Commission, they were well aware of the implications the decision holds for the administrative state. Because the case presents a constitutional challenge to the method by which civil-service administrative law judges are appointed, it raises the possibility that the justices might (in the words of Justice Stephen Breyer) “driv[e] wedges of dependence into what was to be since Chester Alan Arthur a merit-based civil service.”

The problem comes from the Constitution’s appointments clause, which requires that all “officers” of the United States be appointed by the president, by the “courts of law,” or by the “heads of departments.” As Chief Justice John Roberts emphasized repeatedly during the argument, the clause reflects the concern of the Constitution’s drafters with “accountability” – the idea that some readily identifiable official could be held accountable for the selection of any “officer” of the United States. There is considerable tension between that principle, which necessarily ties all who qualify as constitutional “officers” to political appointees, and the principles that undergird the Administrative Procedure Act’s conception of administrative law judges, who are established by design as a base of activity independent from political influence.

Mark Perry for petitioners (Art Lien)

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Argument transcripts

By on Apr 23, 2018 at 4:12 pm

The Supreme Court has posted transcripts of today’s oral arguments:

Lucia v. Securities and Exchange Commission (case page at this link)

Pereira v. Sessions (case page at this link)

Chavez-Meza v. United States (case page at this link)



Posted in Merits Cases

This morning the Supreme Court added two new cases, consolidated for one hour of oral argument, to its docket for next term. Today’s grants mean that the justices will once again grapple with the Armed Career Criminal Act, which requires longer sentences for repeat offenders who commit crimes with guns and have been convicted of either violent felonies or serious drug crimes. The statute defines a violent felony as a crime that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The ACCA does not specifically define what constitutes a “burglary,” but nearly 30 years ago the Supreme Court defined the term to include crimes involving illegal or unauthorized entry into a “building or structure” with the intent to commit a crime. In United States v. Stitt and United States v. Sims, the justices will consider whether the burglary of a “nonpermanent or mobile structure” – such as a mobile home, trailer or tent – that is adapted for someone to stay in it overnight qualifies as a “burglary” for purposes of the ACCA. The cases will almost certainly be argued in the fall.

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OT2017 #22: “Cf. Everything”

By on Apr 23, 2018 at 10:03 am

We’re live at the University of Akron School of Law to preview the Supreme Court’s final—and perhaps its most important—sitting of October Term 2017. Come for our predictions on the travel-ban case, Trump v. Hawaii. Stay for Ian’s rant on interstate egg regulation, Dan’s second thoughts on #GorsuchStyle, a radical proposal for habeas reform, and a whole lot more—including a recap of the court’s biggest opinion of the term so far, Sessions v. Dimaya. We also fill you in on the court’s slightly-less-exciting opinions in United States v. Microsoft and Wilson v. Sellers, discuss some interesting relists and take some great audience questions—including one by a Volokh Conspirator who makes a surprise appearance (listen ’til the end to find out who!).

Monday round-up

By on Apr 23, 2018 at 7:26 am

Today the Supreme Court kicks off its last week of oral arguments this term with arguments in three cases. The first is Lucia v. Securities and Exchange Commission, which asks whether SEC administrative law judges are “officers of the United States” within the meaning of the appointments clause. Ronald Mann previewed the case for this blog. Leonardo Mangat and D.E. Wagner preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer for the case. For The Wall Street Journal, Dave Michaels and Brent Kendall report that “[i]f the justices rule for Mr. Lucia, it could invalidate the penalties against him and give a leg up to a handful of other defendants who similarly disputed the hiring process for SEC judges [, which] also could encourage challenges from defendants who grappled with administrative law judges at other federal agencies.” At Bloomberg, Margaret Newkirk and Greg Stohr report that “[s]iding with [Lucia]—and against the SEC’s long-standing position—will be the Trump administration,” and that the case “amounts to a broadside aimed at the 1,900 administrative law judges (ALJs) who help federal agencies enforce laws and are a key part of the administrative ‘deep state’ that Trump has vowed to dismantle.” At Law360 (subscription required), Daniel Walfish analyzes Lucia’s “practical significance for pending and future cases, and the Trump administration’s unusual bid to weaken the independence of ALJs.” In an op-ed for the Washington Examiner, Philip Hamburger argues that “[t]here is … no reason for the justices to strain the Constitution to approve the SEC’s indirect appointment method.”

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Posted in Round-up

This week at the court

By on Apr 22, 2018 at 12:00 pm

The Supreme Court released orders from the April 20 conference on Monday. The justices added two cases to their docket for next term, United States v. Stitt and United States v. Sims, consolidated for one hour of argument. The justices also called for the views of the solicitor general in EVE-USA Inc. v. Mentor Graphics Corp.

There is a possibility of opinions on Tuesday at 10 a.m.

On Monday the justices heard oral argument in Lucia v. Securities and Exchange Commission, Pereira v. Sessions and Chavez-Meza v. United States.

On Tuesday the justices will hear oral argument in Abbott v. Perez and Animal Science Products Inc. v. Hebei Welcome Pharmaceutical Co. Ltd.

On Wednesday the justices will hear oral argument in Trump v. Hawaii.

On Friday the justices will meet for their April 27 conference; our “petitions to watch” for that conference will be available soon.


Petition of the day

By on Apr 20, 2018 at 6:30 pm

The petition of the day is:


Issue: Whether a conviction under a state criminal statute whose plain terms sweep in more conduct than a corresponding federal offense can be a categorical match with that federal offense.

Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

Posted in Merits Cases
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