Before Tuesday’s oral arguments in American Broadcasting Companies v. Aereo, Justice Kennedy announced the Court’s much-anticipated decision in Schuette v. Coalition to Defend Affirmative Action, upholding Michigan’s state constitutional ban on the use of affirmative action by state universities.  Given the palpably tense atmosphere that accompanied Justice Sonia Sotomayor’s dissent from the bench in Schuette, you had the sense that the Justices were relieved to move on to easier – or at least less controversial – topics, like the David-and-Goliath battle that pits Aereo, the start-up that pulls TV programming off the airwaves on thousands of tiny antennas and streams it over the Internet to subscribers for a small fee, against the broadcast television industry, which argues that Aereo’s business model is a blatant violation of federal copyright laws that could sound the death knell for television as we know it.  (My preview of the oral argument is available here.)

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On Monday, April 28, the Court will hear oral arguments in Lane v. Franks on the First Amendment protections for a public employee who testifies in court.  There are two respondents — the previous and current presidents of the college in question – and they disagree with each other on the First Amendment question.  The Solicitor General will participate in the oral argument.


Central to the resolution of Lane v. Franks is the reach of Garcetti v. Ceballos, the Court’s latest pronouncement on the First Amendment rights of public employees.  Since Pickering v. Board of Education in 1968, the First Amendment has protected public employees from adverse employment actions when they are “speaking as a citizen” on a matter of public concern.  In Garcetti, the closely divided Court held that, when public employees make statements “pursuant to their official duties,” such speech is not protected by the First Amendment.  The employee in Garcetti was a deputy district attorney in Los Angeles who investigated a law enforcement officer’s affidavit in support of a search warrant and concluded it was false.  The prosecutor wrote a memo recommending the case be dismissed; his supervisors not only vehemently disagreed but also allegedly retaliated against him.  In an opinion by Justice Kennedy, the Court reasoned that when an employee is “simply performing his or her job duties,” there is “no relevant analogue to speech by citizens who are not government employees.”  Continue reading »


Was Congress legally sophisticated enough to distinguish between “statutes of limitations” and “statutes of repose” when it amended the “Superfund” legislation (known as CERCLA) in 1986?  At the oral argument in CTS Corp. v. Waldburger, some Justices confessed that the crucial distinction that CTS ascribes to Congress was complete news to them.   The case turns on whether the respondents – homeowners whose well water was polluted by toxics – are barred from suing CTS by a North Carolina law that requires suits to be brought less than ten years after the defendant’s last action.  The Fourth Circuit ruled that the North Carolina law was preempted because Congress did not intend to distinguish between statutes of limitations and statutes of repose when it tolled state statutes of limitations until after the victims of toxic exposure have discovered their injuries.

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On Wednesday, in White v. Woodall, the Court reversed a grant of habeas relief by the U.S. Court of Appeals for the Sixth Circuit.  Woodall’s underlying claim concerned the state trial court’s refusal to accommodate his request for a “no-adverse-inference” instruction at the punishment phase of his capital trial; Woodall did not testify at the punishment phase, and he had sought an instruction that would have acknowledged his right not to testify and forbade jurors from holding his choice not to testify against him “in any way.”  On appeal, the Kentucky Supreme Court affirmed.  But when Woodall pursued the claim on federal habeas, both the federal district court and the Sixth Circuit concluded that the Kentucky Supreme Court’s denial of relief amounted to an unreasonable application of clearly established federal law, thus permitting relief under Section 2254(d)(1) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Justice Scalia’s opinion for the majority is unusually harsh in its rejection of the Sixth Circuit’s decision, striking a tone more common to summary reversal opinions than merits decisions following briefing and argument.  Justice Scalia chastises the Sixth Circuit for “disregard[ing] the limitations” embodied in AEDPA, laments that “some federal judges find [those limits] too confining,” and warns that “all federal judges must obey” them. Continue reading »


Thursday round-up

By on Apr 24, 2014 at 9:19 am

Yesterday the Court issued decisions in two cases:  Paroline v. United States, involving restitution for victims of child pornography; and White v. Woodall, a habeas case.  Lyle Denniston covered the decision in Paroline for us; other coverage comes from Bill Mears of CNN and Jaclyn Belczyk of JURIST, while Tony Mauro profiles Stanley Schneider, the Texas lawyer who represented Paroline, for The National Law Journal (registration required).  Commentary on Paroline comes from Rick Hasen, who predicts at his Election Law Blog that Congress will step in to override the Court’s decision, “and probably relatively quickly,” and from Marci Hamilton, who proposes a possible fix at Hamilton and Griffin on Rights.  Kimberly Bennett summarizes the Woodall decision at JURIST, while at Crime and Consequences, Kent Scheidegger praises the Court’s opinion, writing that “[f]ederal habeas remains a safety net in case the state courts completely fail to do their jobs and are clearly wrong, but in all debatable questions the state court decision stands.  The law is an important step closer to that principle today.” Continue reading »

Posted in Round-up

Petition of the day

By on Apr 23, 2014 at 10:13 pm

The petition of the day is:

M&G Polymers USA, LLC v. Tackett

Issue: (1) Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold; and (2) whether, as the Sixth Circuit has held in conflict with the Second, Third, and Seventh Circuits, different rules of construction should apply when determining whether health-care benefits have vested in pure Employee Retirement Income Security Act (ERISA) plans versus collectively bargained plans.

Today’s transcripts

By on Apr 23, 2014 at 4:07 pm

The transcript in  CTS Corp. v. Waldburger is here.

The transcript in United States v. Clarke is here.


Posted in Merits Cases


Each individual — among hundreds and maybe thousands — found guilty of keeping and looking at images of a child being sexually abused must pay the victim something more than a “trivial” sum, but none of them can be required to pay for all that the victim has lost, the Supreme Court ruled Wednesday in a five-to-four decision.

The ruling in the case of Paroline v. United States, settling a dispute among lower courts on a mandatory law of restitution to victims of child pornography, refused to establish a specific formula for allocating the financial blame, telling federal trial judges to “do their best,” with a few suggestions for starting points.  Justice Anthony M. Kennedy wrote the majority opinion.

Justice Kennedy announces opinion of the Court (Art Lien)

Justice Kennedy announces opinion of the Court (Art Lien)

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John Elwood reviews Monday’s relisted cases.

We begin this week’s edition with speculation about a possible shift in Supreme Court practice that may launch scrutiny of Supreme Court relists from its current tidal eddy of obscurity into . . . well, a slightly larger but equally obscure eddy.  One swallow does not a summer make, but with apologies to Aristotle, Cervantes, and suchlike paragons of the Western Literary Tradition, a dozen hirundines in a row may at least suggest a warming trend.

Earlier this week I remarked that all of this week’s grants came from among the ranks of the relists, and noticed similar instances earlier this year.  But as the eagle-eyed Hashim Mooppan pointed out to me, the relist streak has been far longer and more consistent.  At the risk of being the guy who calls the no-hitter at the top of the second inning, OT2014 is currently an all-relist Term.

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At its Conference on April 25, 2014, the Court will consider petitions seeking review of issues such as the vesting of retiree health-care benefits in collective bargaining agreements, the liability of police officers who failed to stop a sexual assault, and certification of a civil RICO class action based on alleged fraud.

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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