Editor's Note :

Editor's Note :

There is a possibility of opinions on Tuesday and Wednesday. We will begin live-blogging on Tuesday at 9:45 a.m.
On Tuesday the court hears oral argument in National Institute of Family and Life Advocates v. Becerra. Amy Howe has our preview.
Contributions to our online symposium on NIFLA v. Becerra are available at this link.

Petition of the day

in Coleman v. U.S., Cases in the Pipeline on Mar 19, 2018 at 8:04 pm

The petition of the day is:


Issue: Whether a district court is required to consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when determining a term of imprisonment for a defendant whose supervised release has been revoked pursuant to 18 U.S.C. § 3583(g).


Argument analysis: Legal questions, practical concerns at play in post-divorce life insurance case

in Sveen v. Melin, Featured, Merits Cases on Mar 19, 2018 at 5:39 pm

When Mark Sveen died in 2011, his life insurance policy still named his ex-wife, Kaye Melin, as the beneficiary – even though the couple had divorced four years before. Nothing in the Minnesota couple’s divorce settlement (which divided up, among other things, the all-terrain-vehicle and the snowmobile) addressed the fate of Mark’s insurance policy, and there was no other evidence – other than a statement from Kaye herself – of what Mark wanted to do about the policy. Under a state law passed in 2002, which provides that a divorce automatically nullifies the designation of a former spouse as the beneficiary of a life-insurance policy, the proceeds from the policy would go to Mark’s adult children, Ashley and Antone. Kaye challenged the law, arguing that it violates the Constitution’s contracts clause, which bars the states from enacting laws “impairing the obligation of contracts.” After an hour of oral argument today at the Supreme Court, it was not clear how the justices are likely to rule, but concerns about the practical effect of their ruling could sway them toward a decision in favor of Mark’s children.

Adam G. Unikowsky for petitioners (Art Lien)



Justices won’t block new congressional maps in Pennsylvania

in Featured, What's Happening Now on Mar 19, 2018 at 4:27 pm

One day before the filing deadline for the primary election, the Supreme Court rejected a request by Republican lawmakers in Pennsylvania to block a remedial plan adopted by the Pennsylvania Supreme Court from going into effect. The ruling means that the state’s 2018 congressional elections will likely go forward under the new maps, which could allow Democrats to pick up three or four more of the state’s 18 seats in the House of Representatives – which could in turn increase Democrats’ chances of taking back the House.

This was the second trip for Republican lawmakers to the Supreme Court in the last two months. In early February, they asked the justices to block a ruling by the Pennsylvania Supreme Court so that they could appeal the state court’s finding that the map violated the Pennsylvania constitution because it was the product of partisan gerrymandering – that is, the Republican-controlled state legislature had drawn it to obtain an advantage over Democrats. Justice Samuel Alito, who handles emergency appeals from the geographic region that includes Pennsylvania, denied that request on February 5 without even referring it to the full Supreme Court – a move that suggests that he did not regard the case as a particularly meritorious one.



Ask the author: Antonin Scalia – “The Justice of Contradictions”

in Book Reviews, Featured on Mar 19, 2018 at 3:15 pm

The following is a series of questions posed by Ronald Collins to Richard L. Hasen on the occasion of the publication of his book “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption” (Yale University Press, 2018, pp. 226).

Richard Hasen is the Chancellor’s Professor of Law and Political Science at the University of California, Irvine School of Law. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law.

Welcome, Rick, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book.

* * *

Question: You use the word “contradictions” in your title. What do you mean by that?

Hasen: Thanks to you and SCOTUSblog for this opportunity to talk about my new book, and for your great (but tough!) questions.

Justice Antonin Scalia was a jumble of contradictions. He said he had come up with jurisprudential theories to decide constitutional and statutory cases in ways that would increase the legitimacy of the Supreme Court, but his response to other justices who declined to follow his theories helped to delegitimize the court; he claimed these justices were acting as super-legislators and not judges. He said he wanted more civility in society and the law, but he used language in his opinions attacking other justices that was unprecedented in its nastiness. He was a Harvard law graduate who railed against Ivy League elites. There are many more examples of his contradictions in the book.



Argument transcript

in Merits Cases on Mar 19, 2018 at 2:14 pm

The transcript in Sveen v. Melin is available on the Supreme Court’s website.


Argument preview: Justices to consider yet another twist on tolling statutes of limitation for class-action filers

in China Agritech v. Resh, Featured, Merits Cases on Mar 19, 2018 at 1:15 pm

As the melting snow reveals the first buds of spring, the justices turn again to a subject perhaps all too familiar to them – statutes of limitation in class actions. You would think that the Supreme Court had resolved every possible variation on that topic (usually in favor of the defendants, at least in recent years), but China Agritech v. Resh brings a new variation on the ability of plaintiffs to use equitable tolling to file successive actions.

Much of the litigation in this area involves American Pipe and Construction Co. v. Utah, a precedent from the Burger era, when the Supreme Court was still enamored of the potential for class actions to reduce docket pressures. American Pipe established a rule of “equitable tolling,” a judge-made doctrine that extends the deadlines that otherwise would bar an action as untimely. Specifically, American Pipe permits the individual claimants who did not participate in an unsuccessful class action to file their own separate actions after the failure of the class proceeding. Importantly, American Pipe “tolls” (or suspends) the limitations period on the actions that the individuals could bring for as long as the class action is pending. (If you think you’ve read something on the blog recently about “tolling,” you’re probably remembering the fiercely discordant understandings of that word in the opinions earlier this year in Artis v. District of Columbia.) In this context, American Pipe leaves individual claimants an opportunity to pursue their claims separately after the failure of the joint proceeding, even if their filings come after the deadline established by the relevant statute.



Justices decline to weigh in on constitutionality of death penalty

in Nielsen v. Preap, Hidalgo v. Arizona, Azar v. Garza, Garco Construction Inc. v. Secretary of the Army, Featured, What's Happening Now on Mar 19, 2018 at 12:50 pm

Seven months after an Arizona inmate asked the Supreme Court to review the constitutionality of the death penalty itself, the court today declined to do so. The order denying certiorari in the case of Abel Hidalgo, who shot and killed two men as part of a murder-for-hire scheme in 2000, was accompanied by a 10-page statement by Justice Stephen Breyer, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. But Breyer’s statement focused on the second question raised by Hidalgo, who argued that the scheme that Arizona used to sentence him to death does not, as the Supreme Court has required, “genuinely narrow the class of persons eligible for the death penalty.”

Although 99 percent of first-degree murders in Arizona are eligible for the death penalty, Hidalgo contended, the Arizona Supreme Court ruled that the state’s scheme does not violate the Constitution because the necessary narrowing can be achieved in other ways – specifically, through the discretion given to prosecutors and the individual aggravating factors themselves. Breyer agreed with Hidalgo that “the Arizona Supreme Court misapplied our precedent,” but he nonetheless approved of the U.S. Supreme Court’s decision to deny review. Breyer explained that Hidalgo’s evidence regarding eligibility for the death penalty in Arizona was “unrebutted” and even “points to a possible constitutional problem.” But, he continued, because Hidalgo was not allowed to develop this evidence at a hearing in the lower court, the record now before the justices “is limited and largely unexamined by experts and the courts below in the first instance.” If another defendant develops empirical evidence on this question in the future, he concluded, that case will be “better suited for certiorari.”



Argument preview: Appealability, mandamus and mootness in the shadow of restraints on criminal defendants

in U.S. v. Sanchez-Gomez, Featured, Merits Cases on Mar 19, 2018 at 10:42 am

The Supreme Court declined to grant certiorari on the substantive constitutional issue in United States v. Sanchez-Gomez — the validity of a district-wide policy permitting United States marshals to place full restraints on defendants during most non-jury proceedings, even without a determination of cause to restrain the defendant. But the disputed nature of any constitutional right to be free from shackling hovers over the jurisdictional issues the court will resolve, with long-term consequences for appellate review and constitutional litigation challenging policies related to criminal proceedings.



OT2017 #18: “Legal Faux Pas”

in National Institute of Family and Life Advocates v. Becerra, Sveen v. Melin, First Mondays on Mar 19, 2018 at 9:31 am

Leah Litman returns to the co-host chair to join Ian for a look ahead at the March sitting. We preview National Institute of Family and Life Advocates v. Becerra, a case at the intersection of abortion and the First Amendment. We’ll also talk about Sveen v. Melin, a contracts clause case that will determine what happens to life insurance after divorce.

But before we get into those, we try something new– flagging a few interesting cert petitions that we’ll watch as they make their way through the court’s discussion lists. There are also birthdays and anniversaries to celebrate, as well as some key corrections to issue.


Monday round-up

in Round-up on Mar 19, 2018 at 7:04 am

Today the justices kick off the March session by hearing oral argument in Sveen v. Melin, which asks whether a state law that automatically nullifies the designation of a former spouse as a life-insurance beneficiary upon divorce violates the Constitution’s contracts clause. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Shelby Garland and Jonathan Kim preview the case for Cornell Law School’s Legal Information Institute. Kimberly Robinson and Jordan Rubin discuss Sveen at Bloomberg Law’s Cases and Controversies podcast. Counting to 5 (podcast) previews the three cases that will be argued this week, and The George Washington Law Review’s On the Docket blog offers previews of all the cases in the March argument session.

At the Associated Press, Mark Sherman reports on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that, among other things, requires licensed centers to post notices to inform patients about the availability of state-funded family-planning services, including abortion; he notes that although the “justices won’t be dealing with broader questions about the right to an abortion, the outcome could affect not only California’s law, but those in other states that have been shaped by anti-abortion groups.” The Associated Press also offers differing accounts from two women who visited crisis pregnancy centers. Additional coverage of NIFLA, which will be argued tomorrow, comes from Robert Barnes for The Washington Post, Richard Wolf at USA Today and Andrew Chung at Reuters. At The Federalist, Mark Miller argues that “[t]he First Amendment includes the right not to speak, but the FACT Act takes that right away.” At Jost on Justice, Kenneth Jost maintains that NIFLA “represents the third time this term that political conservatives have urged justices committed to an originalist interpretation of the Constitution to find in the Free Speech Clause meanings that James Madison and the other Framers could never have intended or contemplated.”


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