Thursday round-up

By on Apr 26, 2018 at 7:29 am

Yesterday the Supreme Court wrapped up its last session of the term with oral argument in one of this term’s marquee cases, Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. Andrew Hamm rounds up early coverage of and commentary on the argument for this blog. At Fox News, Bill Mears reports that “[t]he last scheduled oral argument of the term appeared divided along the usual conservative-liberal lines.” For The Wall Street Journal, Jess Bravin and Brent Kendall report that “the ban appeared likely to survive the Supreme Court’s scrutiny …, after the government’s lawyer argued that current restrictions on entry from five Muslim-majority nations traced not from the president’s provocative campaign statements but the deliberate assessments of national-security professionals.” Another account of the argument comes from Michael Bobelian at Forbes.

At Vox, Dara Lind breaks down the argument, suggesting that Chief Justice John Roberts and Justice Anthony Kennedy “appeared most worried about the national security implications of striking down the ban — with the idea that this would limit some future president from doing what needed to be done to keep America safe.” Garrett Epps writes at The Atlantic that “[t]he two advocates put forward their cases as well as they can be made; how you assess them will depend on whether you see the case in terms of equality and religious liberty or … as a matter of danger, world conflict, and defense.” In an op-ed for Bloomberg, Noah Feldman maintains that “Justice Elena Kagan has a strategy to persuade swing Justice Anthony Kennedy to vote against the ban” – “to depict the case as a watershed moment in the court’s jurisprudence about bias — thus making it extraordinarily difficult for Kennedy to find himself on the wrong side of history.” At PrawfsBlawg, Howard Wasserman wonders “whether the lack of interest in the scope of the injunction hints at where the Court will come down on the merits.” Additional commentary comes from Will Rosenzweig at Hosts of Error and Scott Lemieux at Lawyers, Guns & Money.

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Petition of the day

By on Apr 25, 2018 at 6:00 pm

The petition of the day is:

17-1304

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.

Today the Supreme Court heard oral argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. Amy Howe has this blog’s analysis, which was first published at Howe on the Court. She reports that after over an hour of debate, “a majority of the court (and perhaps even a solid one) appeared ready to rule for the government and uphold the order in response to concerns about second-guessing the president on national-security issues.” Mark Walsh provides a “view” from the courtroom.

Additional early coverage of the argument comes from Mark Sherman of the Associated Press, Adam Liptak and Michael Shear of the New York Times, Robert Barnes, Ann Marimow and Matt Zapotosky of the Washington Post, David Savage of the  Los Angeles Times, Josh Gerstein and Ted Hesson of Politico, Mark Walsh of Education Week, Nina Totenberg of NPR, Lawrence Hurley and Andrew Chung of Reuters, Ariane de Vogue and Saba Hamedy of CNN, Greg Stohr of Bloomberg and Richard Wolf of USA Today.

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Oyez has posted the aligned audio and transcript from today’s oral argument in Trump v. Hawaii.

The aligned audio and transcripts for the other arguments heard this week will be posted on Friday.

 

 

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Occasionally someone will pose a question about Supreme Court practice to me that deals with an issue I haven’t examined. Recently I had one such interaction with John Elwood of Vinson & Elkins. John asked if I had looked at applications for extensions of time to file petitions for writs of certiorari. Because I hadn’t looked at this issue in any detail before, I decided to bring a quantitative understanding of the practice to this post.

Putting the material together to file a petition for a writ of certiorari to the Supreme Court is no small endeavor. Compounding the time involved, parties often bring on experienced counsel to take over cases pending possible Supreme Court review. With filing requirements creating specific parameters for when cert petitions must be filed, counsel may find themselves under the gun to file in a timely manner. To circumvent these requirements, counsel may request certain time extensions to file. This post takes a look at several aspects of these requests, namely: who files them, how the justices respond and what these applications for time extensions contain.

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It’s a warm but drizzly day in Washington as people line up for the last argument of October Term 2017. Some have spent a night or two in the public line, while the well-connected have tickets. Today, the latter will include one star of the Broadway stage, a few members of Congress and at least one senior White House official.

The first familiar face we spot in the courtroom today is Scott Keller, the Texas solicitor general, who argued his state’s redistricting case yesterday and is the counsel of record on the amicus brief of Texas and 14 other states (or their governors) in support of President Donald Trump’s proclamation restricting travel to the United States by nationals of certain countries.

The case, Trump v. Hawaii, is the only one for argument today.

Wide-shot of courtroom during travel ban argument, Solicitor General Noel Francisco at lectern (Art Lien)

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It has been nearly 15 months since President Donald Trump first issued an order that banned travel to the United States by nationals of seven countries, all of which have overwhelmingly Muslim populations. After lower courts blocked the government from enforcing both the original January 2017 order and a revised order that followed it in March 2017, Trump issued a new order last September. Today the Supreme Court heard oral argument on the legality of the September 2017 order, in one of the most anticipated sessions in recent memory. After over an hour of debate, a majority of the court (and perhaps even a solid one) appeared ready to rule for the government and uphold the order in response to concerns about second-guessing the president on national-security issues.

Solicitor General Noel J. Francisco (Art Lien)

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Argument transcript and audio

By on Apr 25, 2018 at 1:22 pm

The Supreme Court has posted the audio and transcript of today’s argument in Trump v. Hawaii.

 

Justice Kennedy questions lawyer (Art Lien)

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The second of yesterday’s two patent decisions was SAS Institute v. Iancu. As I explained in my post about Oil States Energy Services v. Greene’s Energy Group, both cases involve the process for “inter partes review” that Congress added to the Patent Act in 2012, a process under which a competitor (or, for that matter, anyone at all) can ask the director of the Patent and Trademark Office to reconsider a previously issued patent. If the director agrees to reconsider the patent, the Patent Trial and Appeal Board then conducts a trial-like proceeding adjudicating the validity of the patent. The Supreme Court held yesterday in Oil States that Article III permits Congress to allocate that responsibility to an executive agency rather than an Article III court. This decision, though, invalidates a major part of the administrative rules under which the board has been conducting those reviews.

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Wednesday round-up

By on Apr 25, 2018 at 7:12 am

This morning the Supreme Court ends its last session of the term with a bang when it hears argument in Trump v. Hawaii, a challenge to the latest version of the Trump administration’s entry ban. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Madelaine Horn and Conley Wouters preview the case for Cornell Law School’s Legal Information Institute. Subscript has a graphic explainer. Lyle Denniston takes a close look at the case at Constitution Daily. For The Washington Post, Robert Barnes reports that the justices will consider “whether President Trump’s travel ban is a necessary step to protect the country from terrorism or an illegal and unconstitutional fulfillment of campaign promises to ban Muslim immigrants.” Additional coverage comes from Nina Totenberg at NPR, Steven Mazie at The Economist’s Espresso blog, Richard Wolf at USA Today, and Bill Mears at Fox News, who reports that “[t]he case will be the first significant legal test so far of the president’s administration and could lead to a precedent-setting ruling on the limits of executive power, especially within the immigration context.” At Vox, Dara Lind breaks down the history of “the travel ban saga.” An episode of the Vox podcast Today, Explained focuses on the case. Commentary comes from the editorial board of the Boston Globe and Ian Millhiser at ThinkProgress.

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