The Justices are now in their mid-term recess, setting us up for several weeks in which we will not get any new opinions or orders.  But before starting their break, the Justices gave us a parting gift:  three opinions in argued cases.  And the debate generated by one of those decisions in particular could well fill the time until the Justices return.  Let’s talk about them in Plain English.

In a Term in which the Court was not considering the constitutionality of the Affordable Care Act, Texas’s redistricting plans, and Arizona’s controversial efforts to regulate immigration, the Court’s decision in United States v. Jones might well have been one of the stars of the Term.  Even this year, though, it was one to watch.  The Court was considering the case of Antoine Jones, a nightclub operator who received a life sentence for his role in a drug-trafficking scheme.  To obtain evidence against him, the government had installed a GPS tracking device on his car without a valid warrant and then used the device to track his movements for nearly a month.  The U.S. Court of Appeals for the District of Columbia threw out Jones’s conviction, explaining that the use of the GPS device violated his right under the Fourth Amendment to be free of “unreasonable searches and seizures.”

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Posted in U.S. v. Jones, National Meat Association v. Harris, Reynolds v. U.S., Featured, Plain English

Less than a month after announcing that it would review the constitutionality of the Affordable Care Act, in December the Court removed any lingering shred of doubt that this will be a blockbuster Term by adding two more highly significant cases to its docket.  The first, Arizona v. United States, involves the famous Arizona immigration statute, S.B. 1070; courtwatchers began anticipating the case even before Arizona Governor Jan Brewer signed the law at issue in April 2010.  The second (which came to the Court in several petitions) involves the redistricting of Texas’s legislative districts.  Both cases, like the health care litigation, will require the Court to weigh in on the often controversial issue of the relationship between the states and the federal government.  The cases will also be decided as the 2012 political campaigns reach a fever pitch – putting the Court in the public eye in a way that it hasn’t been since its December 2000 decision in Bush v. Gore.

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Posted in Featured, Plain English

Oral arguments are over for the calendar year at the Court, and the Justices took the bench for the last time in 2011 on Monday morning to release their second opinion of the Term in a case that was briefed and argued on the merits.  In Judulang v. Holder, the Court returned to the complicated world of federal immigration law to hand a win to the immigrant and a rebuke to the government.

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Posted in Judulang v. Holder, Featured, Plain English

On Monday morning, at exactly ten o’clock, the Court released its list of orders resulting from the Justices’ private Conference at the end of last week.  That list contained, it is safe to say, one of the most highly anticipated set of orders in recent memory:  the Court’s announcement whether it would become involved in (and, if so, on what terms) the litigation over the constitutionality of the Patient Protection and Affordable Care Act (ACA) – also known more colloquially as, simply, “health care reform.”

The list lived up to its billing.  The Court granted review in three of the petitions that were currently pending before it, setting aside a whopping five-and-a-half hours of oral argument time in March to consider a broad range of questions relating to the Act.  We will break down the cases and the issues in Plain English, but we will start with a little bit of background first.

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Posted in Virginia v. Sebelius, Thomas More Law Center v. Obama, Nat'l Fed. of Ind. Business v. Sebelius, H.H.S. v. Fla., Fla. v. Dept. Health and Human Services, Liberty University v. Geithner, Featured, Health Care, Plain English

October was a busy month at the Court for merits cases:  it heard twelve oral arguments during its October sitting, and then kicked off its November sitting with two more arguments on October 31, the first day of that sitting.   However, this frenzy of activity apparently did not extend to adding new cases to its docket to be argued later this Term, an arena in which the Court continued to be parsimonious; its three October Conferences yielded only six new grants to add to the eight cases it granted in late September, after its long summer recess.  Let’s take a look at these new cases, in Plain English.  Continue reading »

Posted in Freeman v. Quicken Loans Inc., Blueford v. Arkansas, Kiobel v. Royal Dutch Petroleum, U.S. v. Alvarez, Elgin v. Dep’t of the Treasury, Mohamad v. Rajoub, Plain English

And they’re off!  Last week the Court officially began its new Term with oral arguments in seven cases.  I will discuss each of those cases in turn, but I want to start with the order list that the Court issued on Monday, October 3.  The Court’s first order list of the Term is unusual because the Court doesn’t generally grant review in any new cases, but on the other hand we don’t expect any; on September 27, the Court had already granted review in seven new cases from its Conference the day before, and it hadn’t held a new Conference since then.  Instead, this list was most interesting for the cases in which it denied review – including Williams v. Maryland and DeWeese v. ACLU, efforts to bring the issues of gun rights and the Ten Commandments, respectively, back before the Court – and for the five cases in which the Court called for the views of the Solicitor General.

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Posted in Douglas v. In. Liv'g Ctr. of S. Cal., Maples v. Thomas, Reynolds v. U.S., Featured, Plain English

This morning, the Court’s new Term will officially begin:  the Justices will take the bench to hear oral arguments for the first time in several months.  For many court watchers, though, the new Term got off to its unofficial start last Tuesday, when the Court released its first set of orders from the private meeting of the Justices that occurred on Monday, September 26.

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Posted in Featured, Plain English

We waited. And we waited.  And we waited some more.  And, as so often happens in big, controversial cases, our wait lasted a long time "“ over two hundred days.  Finally, on Monday, the last day of the Term, the Court announced its opinion in Brown v. Electronic Merchants Ass'n.  By a vote of seven to two, the Court struck down a California law banning the sale or rental of violent video games to minors, saying that such laws violate the First Amendment.   Because violent games like Grand Theft Auto and Mortal Kombat sell well, and because several other states have similar laws on the books, video-game companies breathed a sigh of relief.

The law, which video-game makers challenged even before it could go into effect, applied to video games that contain the "killing, maiming, dismembering, or sexually assaulting an image of a human being."  Violations of the law would have been punishable by a fine of up to one thousand dollars.  In defending the law, California pointed to studies showing that exposure to violent video games can cause children to become more aggressive over time. Continue reading »

Posted in Brown v. Ent. Merch., J. McIntyre Machinery v. Nicastro, AZ Free Ent. Club v. Bennett, McComish v. Bennett, Goodyear Lux. Tires, SA v. Brown, Featured, Plain English

We at the blog knew that the end of the Term was approaching quickly; even though we don't always know in advance what the Court's last day will be, it pretty much always wraps things up by the end of June.  With that in mind, we expected Thursday to be jam-packed with opinions, and it was:  the Court issued six of its ten remaining opinions, leading us to believe that on Monday the Chief Justice will announce that the Court will be in recess until October. Continue reading »

Posted in Freeman v. U.S., Bullcoming v. New Mexico, CSX Transportation v. McBride, Plain English

It is not every day that the Supreme Court issues an opinion that combines the fate of Anna Nicole Smith's estate with a constitutional ruling limiting the power of both Congress and of federal bankruptcy judges. And that ruling on Thursday was not even the most important in terms of its impact. We'll come back to Anna Nicole later, as we discuss three of yesterday's opinions in Plain English.

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Posted in PLIVA v. Mensing, Stern v. Marshall, Sorrell v. IMS, Merits Cases, Plain English

If you read the blog regularly, you probably know that the Justices announce opinions in reverse order of seniority.  Some days, like Monday, that tradition leaves us on tenterhooks (because many Court-watchers believe that the Chief is writing that opinion).  And sometimes it means that the Court saves the best for last:  Monday, after announcing three important but less visible opinions, Justice Scalia (second in seniority only to the Chief) proclaimed, "The Court has decided the case of Wal-Mart v. Dukes." Continue reading »

Posted in Featured, Plain English

Wow!  If you were following the LiveBlog yesterday, you didn't even have time to refill your coffee cup in between the announcements of the Court's five "“ yep, that's right, five "“ opinions. If even if you weren't on the LiveBlog, here's the rundown in Plain English.

Many Court watchers were pretty excited on Thursday because we finally got a number of particularly interesting opinions.  Yesterday's biggest case? J.D.B. v. North Carolina, a case about kids and Miranda rights. Continue reading »

Posted in J.D.B. v. North Carolina, Davis v. U.S., Smith v. Bayer Corp., Bond v. U.S., Tapia v. U.S., Featured, Plain English

On Monday, the Court decided the last case argued this Term, Nevada Commission on Ethics v. Carrigan, proving once again that when a case is argued does not always determine when it is decided (a case in point:  we still anxiously await the violent video games case from November).  The case involved Michael A. Carrigan, an elected member of the City Council in Sparks, Nevada, who voted on a casino construction project in which his campaign manager was involved.  Although Carrigan disclosed his connection, he was censured by the Nevada Commission on Ethics, which concluded that he violated a state law prohibiting public officials voting on, or arguing for or against, any matter about which a reasonable person would have difficulty being impartial, in part because of a close relationship to someone affected by the vote.  [Disclosure:  I mooted John Elwood, counsel for petitioner in this case, but I had no other involvement in the case.] Continue reading »

Posted in Janus Capital v. 1st Deriv. Trdrs, Flores-Villar v. U.S., U.S. v. Jicarilla Apache N., Nevada Comm. on Ethics v. Carrigan, Featured, Merits Cases, Plain English

It's been a busy week at the Court, especially in terms of cases in which the Court's job was to interpret language in a statute or regulation.  In fact, although the general public usually thinks of the Supreme Court's work as mostly involving the Constitution, many of the Court's cases come to it because federal courts of appeals have interpreted federal statutes or regulations differently, leading to different applications of the law. Continue reading »

Posted in Sykes v. U.S., DePierre v. U.S., Microsoft v. i4i Limited Partnership, Talk America v. MI Bell Tel., Featured, Plain English

Even if you don't have a calendar handy, you can tell it's June. As I posted last week, June is the Court's "post-season"; as of the beginning of the week, there were still thirty-one merits cases outstanding, meaning that we could expect as many as ten opinions per week for each of the next few weeks.  Although the tally is unlikely to be perfectly even, the Court came out of the box swinging on Monday, issuing four opinions, including one in a heavily watched patent case.  Continue reading »

Posted in Featured, Plain English

It's officially June! If you are a baseball fan, you know all about the excitement of the post-season.  Because the Court concludes its oral arguments in April, May and June are the post-season for Court watchers.  Perhaps a bit surprisingly, the Court only issued two opinions this week, and no others are expected until at least next Monday.  That means that the next three weeks will be action packed; the Justices still have to issue opinions in thirty-one merits cases.  That's right, more than a third of the Term's cases are still undecided, at least from the public's perspective. Continue reading »

Posted in Plain English

I have been predicting for weeks that opinions were going to start coming down fast and furious, and this week has certainly proven me right (not that I was terribly prescient "“ that always happens at this time of year)!  This week, the Court issued opinions in six cases, including two of the Term's blockbusters, making law all over the map on issues such as prison reform, employment of undocumented workers, and state secrets.  What's more, this week is only the start; as Tom and Amy noted on the Live Blog, we still have not seen opinions in a few of the cases argued last fall, including those involving violent video games and gender discrimination in citizenship. Continue reading »

Posted in Chamber of Com. v. Whiting, General Dynamics Corp. v. US, Camreta v. Greene, U.S. v. Tinklenberg, Fowler v. U.S., Featured, Plain English

Remember what I've been saying for the last few weeks?  Late spring is not only beautiful in Washington, D.C., it's exciting, too "“ at least for Court watchers.  That's because the opinions for the cases argued earlier in the Term start rolling in fast and furious, and this week was a great example.  On Monday, the Court issued opinions in three cases, and over the next four or five weeks it still has to decide nearly half of the cases from the October Term 2010.  Hold on to your hats . . . .

This week's opinions also demonstrate what a wide variety of cases the Court hears.  We often refer to the Supreme Court as a court of "general jurisdiction" and the Justices as "generalists."  What does that mean?  Well, it means that the Court is not a specialty court "“ for example, it does not hear only family law or bankruptcy disputes, unlike some courts established for those specific purposes "“ and that every Justice participates in deciding every case, regardless of whether she is an expert in the area of law being considered.  That's an important reason why the parties file detailed briefs explaining the relevant legal concepts in a case: they are "briefing" the Justices on how the law in that substantive area works.  It's also a reason why amici, or "friends of the Court," weigh in; an "amicus brief" will often explain to the Court facts and statistics that might help in deciding the case, as well as the real-life ramifications of a particular decision.

But even though the three opinions of the week are about very different areas of law, they all got to the Court for one primary reason:  lower courts disagreed about a legal rule, and the Supreme Court stepped in to resolve the legal differences created by that disagreement.  In fact, this type of disagreement among the lower courts (usually among federal courts of appeals, and thus called a "circuit split") is the primary reason why the Court chooses to grant cert.

Take Kentucky v. King, one of the cases decided this week.  In that case, the Court heard not only from the litigants (a criminal defendant and the state of Kentucky) but also from police organizations and many states, all of whom had an interest in how the case should come out.  As Orin Kerr explains in very Plain English, the case arose from an undercover drug bust.  Police officers followed a suspect into the breezeway of an apartment building and heard a door shut, but didn't see which of two apartments the suspect had entered.  When they smelled marijuana coming from one apartment, they assumed that the drug dealer had entered that apartment and knocked on the door.  No one came to the door, and the officers heard noises that caused them to think that evidence was being destroyed.  They therefore kicked down the door, where they found Mr. King (but not the drug dealer they were pursuing), along with marijuana and cocaine.  The Court has previously "held" (or established a rule that) police can enter and search homes without a warrant when there are "exigent circumstances" "“ what most of us would call an emergency — such as the likely destruction of evidence.  But what happens if "“ as King argued (and the Kentucky Supreme Court agreed) in this case "“ the police effectively "create" the emergency?  Does the "exigent circumstances" rule still apply?  And if it did, wouldn't that be a loophole?

Yesterday, in an opinion by Justice Alito, the Court said "no."  Unless the police threatened to do, or actually did, something that violated the Fourth Amendment, the "exigent circumstances" rule still applies.  In reaching this decision, the Court pointed out that occupants of a home have other protections against warrantless searches "“ for example, telling the police that they cannot enter.  If they fail to take advantage of those protections, it is their own fault.  In a dissent, Justice Ginsburg disagreed.  In her view, an exigency like the one here (a fear that the occupants would destroy the drug evidence if the police waited to get a warrant) was not a real one; after all, she commented, there would be no reason for the occupants to destroy the drugs unless they had reason to believe the police were coming (a fact to which the knock by police officers alerted them).

As Orin notes, both the majority opinion and the dissent are interesting reads.  If you are a Plain English reader because you are not a lawyer but are interested in how the Court does its work, take a gander both at Orin's post and at the opinions themselves.  The opinions, as Orin explains, go through the analysis step by step, try out different approaches to resolving the case, and settle on the one that seems most reasonable.   What's more, the case is also helpful for those who want to understand the Court's work.  That's because the Court almost certainly granted cert. in the case due to a very typical issue: different states were treating police-created emergencies differently for purposes of the exigent circumstances rule.  That makes it a great example of a case in which everyone involved "“ the parties, the states, the amici, and the Court "“ want resolution and consistency, so that no matter where a person lives (or a police officer works) the rule is the same.

In keeping with the idea that the Court deals with a large spectrum of issues, let's talk about the other two opinions from this week:  Schindler Elevator Corp v. Kirk and CIGNA Corp. v. Amara.  The first is about the intersection between two federal laws:  the False Claims Act and the Freedom of Information Act (FOIA).  How do they intersect?  Well, as in this case, sometimes plaintiffs want to sue under the False Claims Act "“ and in the government's name – using information or documents they have received from the government through a "FOIA" (pronounced FOY-a) request.    Here, Kirk sued an elevator company after it fired him, claiming that the company had submitted false claims for payment on its government contracts.  The problem, according to the Court's opinion?  Some of the evidence that served as the basis for his claim that the company had submitted false claims came from FOIA requests that his wife made to the Department of Labor.  The Court (once again resolving a circuit split on the point) held that the information he obtained through the federal agency constituted a "report" that disclosed public information; therefore a provision in the False Claims Act barring lawsuits based on  such reports might apply.  The upshot? If his suit is based on "allegations or transactions" in the reports (an issue the Second Circuit will now decide on "remand," or on the return of the case to that court), Mr. Kirk will not be able to bring his lawsuit, in part "“ a as Justice Thomas explained in the Court's opinion "“because his lawsuit was the kind of "opportunistic" case that the False Claims Act tries to discourage.

Finally, in CIGNA Corp. v. Amara, the Court delved into yet another area of law, ERISA law (a federal statute governing employee benefits).   Justice Breyer, writing for the Court, explained that, under ERISA, an employee whose employer gives her an incorrect explanation of her benefits must actually be harmed by that inconsistency before she can bring a claim.  Different federal courts of appeals had interpreted the statute differently, with a few requiring only that the explanation of benefits be inaccurate as to the actual plan benefits, and others requiring evidence of much greater harm.

Washington has been underwater this week, with a huge amount of rain and more in the forecast.  The law clerks might feel like they are underwater in a different way "“ the next four or five weeks are the last big opinion-writing push before the end of the Term.  But there's very little doubt that the work will get done "“ we'll almost certainly have opinions in the remaining argued cases by the last week in June.

Posted in Kentucky v. King, CIGNA v. Amara, Schindler Elvtr Corp. v. US ex rel. Kirk, Featured, Plain English

Do the Justices have spring fever?  After all, it's May, there are only about six weeks left in the Term, and the Court has yet to issue opinions in over half of the Term's merits cases.  Well, even though the Court has been somewhat  slow to issue opinions this Term (at this time last year, the Court had issued about forty-five opinions, while two years ago it had issued over fifty, as compared to thirty-nine so far this Term), it's not that far behind. 

But now that arguments are over for the Term, we should expect that the Justices are working hard to write, write, write "“ and, beginning on May 16, which is the next day that we expect opinions, we might well have several to peruse and analyze on each and every opinion day. 

This week, the Court decided only one case, one decided under its original jurisdiction.  What's that?  Well, the Constitution tells us that the Court may decide most cases under its appellate jurisdiction (or as a court of appeals, deciding cases that were first heard by the lower state and federal courts).  However, occasionally it will decide cases that start in the Supreme Court, which actually serves as a trial court.  Most of these cases involve situations where a state is suing another state, often over a boundary dispute or a conflict over shared waterways. 

And that's what we had in Montana v. Wyoming, a case about the Yellowstone Compact, a contract dictating how each state could use water from shared rivers.  Montana claimed that Wyoming had violated the contract "“ not because it was taking more water out of the river than it was allowed to by the contract, but because it had developed more efficient ways of using the water that it did take, so that there was less water to run off and return to the river for Montana to use later on.  But the Court disagreed in a seven-to-one vote (with Justice Kagan recused), agreeing with Wyoming that merely being more efficient about using the water was not the same as diverting more in the first place (a practice that would violate the contract). 

Justice Scalia, who has called dissenting one of his greatest pleasures, disagreed with his colleagues' reading of the contract.  He read the contract as referring to the total amount of water that Wyoming used (and thereby prevented Montana from using), not the amount that it originally took from the rivers.  As he often does, he based his analysis on a textual reading of the contract, arguing that the majority had not interpreted the contract provisions in the way it should have.

One more note about this case:  The opinion was Justice Thomas's fourth majority opinion of the Term.  Given that just a few weeks ago, Court watchers were noting that Thomas had yet to write any majority opinion, it's clear that Justice Thomas's chambers has been hard at work.  One interesting question:  does the fact that he has now written for the majority in four cases in a short time reflect assignments within his chambers; that is to say, did each of his four law clerks complete his or her (Thomas has one female and three male clerks this Term) first major assignment?  We'll never know; clerk workloads are closely guarded secrets, but we do know that the clerks typically spread out the work among themselves (or have the work distributed by their Justices), ensuring that no one clerk bears an overly burdensome load. 

I do not usually write about cert. grants, at least not until the cases are argued or decided.  But one of this week's grants was particularly interesting, so it warrants some comment.  In M.B.Z. v. Clinton, the Court will take up the issue of Jerusalem:  whether the United States should be neutral as to whether Israel can claim the city, whether U.S. citizens can request that "Israel" be listed as their birthplace if they were born in Jerusalem, and who gets to decide (the passport holder, the President, or Congress).  This is a long-running debate, but in 2002 Congress passed a law that required the State Department (if asked to do so) to list "Israel" as the place of birth on passports for U.S. citizens born in Jerusalem.   However, when President Bush signed the bill into law, he stated that the law was not mandatory, but instead only advisory. 

In granting cert., the Court asked the parties to address the question of whether the 2002 law (which essentially recognizes Jerusalem as the capital of Israel, a position that the executive branch has expressly declined to take) interferes with the executive power to set foreign policy.  Some commentators have noted that the Court's decision may affect relations between the United States, Israel, and the Arab regions sometimes known as Palestine. 

We are not expecting opinions next week, so I will post the next Plain English column two weeks from now.

Posted in M.B.Z. v. Clinton, MT v. WY and N.D., Featured, Plain English

Well, that's all she wrote.  In terms of oral arguments, at least,October Term 2010 has reached its end.  As I wrote last week, over the next two months, the Justices will only enter the courtroom to announce orders and opinions (of which there are still over forty coming down the pike). 

But before we get to our discussion of oral arguments, let's talk about arbitration, class actions, big business, and health care.  This week, the Court issued two opinions, including one in one of the Term's biggest cases, AT&T v. Concepcion.  As I explained when the case was argued back in November, the case concerned a cell phone contract that prohibited plaintiffs who had a dispute with AT&T from bringing class actions, or joining a group of plaintiffs together.  At issue in this case as well was the concept of arbitration, an alternative to formal trials that many litigants prefer because it is usually cheaper and faster than going through the court system.  With the Court split among traditional ideological lines, a "bare majority" of the Court (or five Justices) decided that, under the Federal Arbitration Act, contracts requiring plaintiffs to waive their rights to form a class in an arbitration proceeding are enforceable, because the federal law "preempted" (or trumped) California state law allowing such actions. 

Those interested in corporate rights were watching this case closely; many view the Court's holding as protecting businesses from class action suits in general, because companies can contractually require customers to submit to arbitration if a dispute arises, then add in a contract clause requiring all such arbitration proceedings to be brought individually, not as a class action.  In light of AT&T's promises that its arbitration process is easy and customer friendly, that approach may sound reasonable (and, in fact, such a provision has become fairly standard in consumer contracts).  But, as the dissenting Justices noted, class actions are a good way for individuals with small claims to seek compensation because it allows them to come together, bring one big lawsuit (depending on the number of plaintiffs, often worth a significant amount of money), and find an attorney to represent their interests "“ something that might be difficult, the dissenters commented, when (as here) an individual claim is for only around thirty dollars.   

Probably the other most notable moment of the week, at least in the news?  The Court's denial of cert.  in Virginia v. Sebelius, a challenge to the new federal health care law.  While a number of people have told me they are confused by this "“ after all, they've heard that health care is likely to reach the Court "“ Court watchers were not surprised.  Why?  Because disputes over the constitutionality of the law should properly proceed through the lower courts first.   After at least one federal court of appeals decides the issue, however, most people in the know agree that it is quite likely that the Court will indeed grant cert.  In other words, it's not that the Court doesn't want to hear the issue; it's that a case involving such a challenge has not fully made its way to Supreme Court review.   When it does, as Adam Liptak noted in the New York Times this week, Justice Kagan will probably participate in deciding the case (and, indeed, apparently participated in deciding whether to grant cert., as no recusal was noted in the order denying it); during her confirmation process, she said that she was only tangentially involved with any discussions involving the issue while she was Solicitor General. 

As I said earlier, oral arguments are over for the Term.  Over the last few months, however, I've gotten several questions from readers about why the Court even hears oral argument.  Do the arguments really make a difference?  Does a seasoned oral advocate (who presumably can perform better at the Supreme Court podium) have a better chance of convincing the Justices than a first-timer?  And don't the Justices really decide the cases based on the briefs (written documents attorneys file with the Court), or ideology, or some combination of the two?

In fact, many Justices have commented that oral arguments do make a difference, because they represent an opportunity to explore concepts and hypothetical situations that the lawyers just cannot fit into a fifty-page brief.  As I discuss in more depth here, most Justices acknowledge that they are sometimes on the fence about a case, and oral argument helps them make up their minds, especially to the extent that they can ask advocates questions about perceived holes or difficulties in a case. 

Not all Justices agree.   Justice Thomas has stated unequivocally that asking questions at oral argument is not helpful to him in deciding a case "“ but even he sees the value in listening to advocates explain their cases. 

As to the question about whether an experienced Supreme Court lawyer is more likely to win at the Court, the answer is certainly "yes."  That success rate, however, stems from many factors of which oral argument is only one; members of the Supreme Court "bar" (a small group of attorneys who argue regularly before the Court) are more savvy about Supreme Court strategy (including the types of arguments that are likely to appeal to the Justices) and are more likely to have excellent written advocacy skills, especially of a specialized type that is particularly persuasive to the Justices.  Finally, those elite lawyers who practice largely or mostly before the Court have the gift of time; because they focus so heavily on a few cases each Term, they can pour weeks, even months of preparation into a case, whereas most lawyers juggle many more cases and clients at a time. 

Now that we are entering the last several weeks of the Term, we are likely to see several opinions a week, especially in June.  I'll be here each week to discuss them all . . . in Plain English.

Posted in AT&T v. Concepcion, This week at the Supreme Court: In Plain English, Featured, Plain English

If you were watching the Court last week, you have probably heard and read more about the oral arguments that you have about last week's opinions.  After all, the arguments were in cases about issues like global warming, extended prison sentences, and patent protection; what's more, some of the nation's top advocates (Acting Solicitor General Neal Katyal and former Solicitor General Seth Waxman, among them) were at the podium. 

But we did have opinions in two important, although less visible, cases.  First, on Tuesday, the Court held by a vote of six to two (with Justice Kagan recused) that a state agency can sue state officials in the same state to get them to do something (although not for money).  In Virginia Office of Protection and Advocacy v. Stewart, the petitioner "“ an independent state agency "“ sued  state officials to obtain mental health records for people committed to state mental institutions; two people had died in the facilities, and another had been injured.  The agency wanted to investigate reports of wrongdoing within the institutions, but the state had refused to hand over the records voluntarily.    Ordinarily, the Eleventh Amendment protects states from being sued without their consent in federal court. 
The legal arguments in VOPA  revolved around a one-hundred-year-old case called Ex parte Young, in which the Court held that the Eleventh Amendment rule prohibiting lawsuits against the state did not extend to suits against state officials (a technical distinction to which the Ex parte Young dissenters angrily objected) "“ at least not when the lawsuit is filed to stop the state from violating federal law. 

Relying on Young, the VOPA majority held that the "identity of the plaintiff" is not important "“ in other words, although the dissenters were worried about a state agency suing a state official, comparing such an action to cannibalism, the majority held that Ex parte Young  allowed such suits.    

There are certainly concerns when cases like this arise, concerns related to the concept of federalism (which is the idea that states should be able to resolve the problems that arise within their boundaries on their own) and sovereign immunity (or the havoc that can result from a state and state officials spending their time defending against lawsuits instead of governing). 

But many see Ex parte Young as a critical case that keeps states in line, making sure that they comply with federal law.  The VOPA opinion extends the Ex parte Young doctrine just slightly, but enough so that state agencies can now participate in the effort to keep state officials acting legally.

The Court's second decision last week, in Sossamon v. Texas, also addressed a state's immunity from suit.  In this case, the Court had to interpret the Religious Land Use and Institutionalized Persons Act (RLUIPA), which (as it sounds) Congress passed to protect religious freedoms in land use and prisons.  Even though the language of the statute suggests that people can sue state  governments for money when they violate the statute "“ by providing that "appropriate relief" is available "“ the Court (in an opinion by Justice Thomas, with Justice Kagan recused) explained that the act of accepting money from the federal government did not amount to the kind of consent needed for the state to waive its immunity  from suit.  In other words, Harvey Sossamon, a devout Christian who sued for his right to worship in prison, could not get any money from Texas for the harm that he suffered in prison as a result of violations of RLUIPA. 

Mr. Sossamon argued that by accepting federal funds, Texas  had forfeited its Eleventh Amendment immunity; in other words, if it wanted federal funds, it also had to follow federal law and could be sued if it didn't.  He relied on a legal principle stemming from the Constitution's Spending Clause:  When a state receives federal funds, individuals (like Mr. Sossamon) may sue the state for money damages.  The only restriction?  The conditions must be clear.  Therefore, Sossamon turned, in part, on whether the phrase "appropriate relief" was clear enough that the states would know that they could be sued for money damages.  Unfortunately for Mr. Sossamon, the Court held that the phrase was not clear enough to warn states that they could be sued. 

The holding is a problem for plaintiffs like Mr. Sossamon, because under Ex parte Young and other Eleventh Amendment cases, they could only sue for what we call injunctive relief, which is an order from a court requiring state officials to do or refrain from doing something.  While Mr. Sossamon's case was in the court system, prison officials changed the rules requiring Mr. Sossamon and other prisoners to be restricted to their cells.  Therefore, Mr. Sossamon could no longer bring a lawsuit asking a court to order the prison officials to allow him out of his cell; that kind of lawsuit would be "moot," or improper, because he was no longer being harmed.  Under the Court's holding in his case, however, he cannot sue the state for money to compensate him for the years in which he was not allowed to worship.  In other words, the Court's opinion leaves him without a legal remedy. 

At this point in the Term, we expect the Court to be in session for about eight or nine more weeks; the Court usually announces its last opinions of the Term by the last week in June, and the Justices mostly leave Washington for the summer.  So what is going on behind the scenes?  Last week, I mentioned that the spring is prime opinion-writing season; after all, at this point, the Court still must decide forty-five cases out of its eighty-case docket.  But how does the opinion writing work?  Let's discuss.

As I explained last week, the Chief Justice assigns majority opinions for cases in which he is in the majority; the senior Justice in the majority assigns the others.  But no one assigns concurrences and dissents; each Justice decides on her own whether to "write separately."  A Justice may decide to write her own, separate opinion at Conference, if it becomes clear that she does not agree, at least in part, with the majority, or she may decide to do so later on, when draft opinions are circulated.

Those less familiar with the Court's procedures sometimes marvel at just how the circulation process occurs.  No emails here; instead, paper copies of the Justices' draft opinions are circulated by hand, with messengers wheeling carts through the Court's corridors.  The Justices and their clerks read the drafts and suggest revisions, sometimes indicating that a change in wording or tone would ensure their endorsement of the opinion.  While many of these revisions may be minor, some may be much more significant, suggesting wholly different analytical approaches to the issue before the Court.

But the "conversation" that occurs during circulation is critically important, because "“ as Justice Brennan often explained "“  the most important rule at the Court is that five votes decide any issue.  In other words, while a Justice may be reluctant to make changes to his draft opinion, he may need to do so to ensure a majority.  Justice Blackmun's papers, for example,  show that opinions often changed considerably between the first draft and the final form because the changes were necessary to "count to five," or secure a majority.  The goal is always to get the traditional, hand-written note (and, yes, the messenger usually still delivers it) that says, "Please join me" (meaning "please add my name to your opinion").

On the other hand, sometimes the circulation process works the other way.  Although it is less common, sometimes a Justice authoring a majority opinion will circulate a draft, then find herself unable to secure four other votes.  In that situation, she has two choices:  change the opinion to bring others on board, or turn her draft into a dissent. 

And speaking again of those concurrences and dissents, they serve a few purposes during the circulation process.  They may be sincere; a Justice may actually intend to announce and publish her separate opinion to express her views, even though they will not become law (except in very narrow circumstances beyond the scope of this discussion).  Or the separate opinion drafts may be strategic "“ a Justice's intent in circulating her opinion may be to convince others to adopt her views, in which case she will withdraw her separate opinion.  Finally, a Justice writing separately may attempt to turn her concurrence or dissent into a majority opinion, especially in a situation where the majority seems shaky. 

Circulation is a complicated process; so is oral argument.  In next week's post, I'll discuss the reasons for oral argument sessions and how the Justices consider oral argument in their analysis of a case. 

Speaking of oral argument, this week's arguments will feature Supreme Court veterans like David Boies, Tom Goldstein (of this blog), and John Elwood (also of this blog).  After that?  It's all opinions from then until the first Monday in October.

Posted in Sossamon v. Texas, Virginia Office v. Stewart, Featured, Plain English

From the public's perspective, things are relatively quiet at the Court right now, as it takes a break  before beginning its final group of arguments on April 18.  However, the Justices and their clerks are busier than ever:  the Court still has to issue opinions in forty-seven cases before the end of June, so they are likely writing, circulating, concurring, and dissenting like mad.

This week, therefore, I am going to touch on the two opinions that the Court issued this week, but also talk a little bit about how the Court does the work of deciding its cases.  Let's start there. 

Supreme Court arguments take place on Mondays, Tuesdays, and Wednesdays, usually about two weeks each month.  At the end of almost every week, the Justices meet in a private conference room for their Conference, during which they discuss (among other things) the cases that were argued that week (if any).  The Chief Justice leads the Conference, and the most junior Justice (currently Justice Kagan) takes notes.  The Justices go around the table and tell the group how they plan to vote and why; each Justice gets a turn to speak before any one Justice can speak twice. 

After all of the Justices have voted, someone is assigned to write the majority opinion.  If the Chief Justice is in the majority, he will assign the opinion either to an associate Justice who is also in the majority or to himself.  If the Chief Justice is in the minority, the senior Justice in the majority gets to assign the majority opinion instead.  Many factors go into deciding who writes an opinion:  it may concern a "pet" legal issue for a particular Justice (such as Justice Scalia and the Confrontation Clause); it may be that a particular Justice has not received a majority assignment for this sitting; it may be that a Justice has finished all of her current assignments and is ready for a new one.  And in some cases, the opinion may present a dry and technical issue that none of the Justices is particularly anxious to write about; when this happens, one of the junior Justices usually gets the assignment.  All of this we know, as the Chief Justice has spoken publicly about these factors. 

Of course, many Court watchers speculate that the Chief Justice and other assigning Justices use assignments strategically:  if they are hoping to encourage more Justices to join an opinion, or if they want to foster a particular line of analysis, they may choose to assign the majority to a particular colleague.  In fact, when Justice Stevens retired, many speculated that one great loss to the Court, particularly to the liberal wing, was the loss of his assignment power (as he was often the senior Justice in the majority when the Chief was in the minority).

Because opinions are usually spread out fairly evenly among the Justices, with each Justice writing about eight or nine majority opinions a Term, Court watchers can sometimes  predict who the author of an opinion will be and how the case will come out.  How?  Well, if most of the cases from a particular sitting have been decided, but one or two are still outstanding, we can look to see who has not written a majority opinion in a case from that sitting.  Usually, that Justice will be the author of the not-yet-issued opinion.  Looking back at the tenor of that Justice's questions during oral argument (as well as her history of decision-making in cases with similar legal issues), we can predict how she might have voted and where the majority will come out.

Is it a perfect science?  Absolutely not!  But because we do not get behind-the-scenes looks at the process (and even the law clerks and staff are not allowed at Conference), we have to make our best guesses.

All of that said, let's talk about this week's opinions.  Based on the factors I just discussed, Tom predicted that Justice Thomas would have an opinion on Monday, and he was correct.  The case was Cullen v. Pinholster, and it involved that favorite of all topics:  habeas corpus.  Several times over the past few weeks, I've explained that pretty much nobody understands habeas (with the exception of a very few lawyers who specialize in the area and (hopefully) judges who hear habeas petitions).  In this case, Scott Pinholster had been sentenced to death for murder, but federal courts had overturned his death sentence because he had suffered brain damage as a child.  However, Pinholster did not rely heavily on evidence concerning his disability at his trial, and he did not raise the issue before the state courts when he challenged the constitutionality of his conviction after his earlier appeals were unsuccessful.  When he reached federal court, however, he claimed that his trial counsel had been ineffective because he had not introduced enough evidence about his brain injury.  The federal court considered the new evidence, and that decision was the main issue before the Supreme Court. 

Justice Thomas, joined at least in part by six other Justices, wrote that the brain injury evidence had come up sufficiently at trial, and that the federal court could not consider evidence that the state court did not.  Moreover, said the majority, when it looked at the evidence that was before the state court, it concluded that Pinholster did not qualify for federal habeas relief. 

Whew!  That's tough stuff, and it is hard to hear "“ after all, many might say, a man who has significant disabilities should not receive the death penalty.  Why does it matter when he raised the mitigating evidence (or the evidence that proves him to be less culpable)?  Well, because the purpose of current habeas law is to try to prevent prisoners from endlessly challenging their convictions and detentions.  Decisions like the one in Cullen, say some, will encourage defendants to make their claims early on, which in turn will make the judicial system more efficient. 

Last, but not least, in Arizona Christian School Tuition Organization v. Winn, the Court held that taxpayers do not have "standing" to challenge tax credits for contributions to religious schools.  What is standing?  Well, to simplify the concept, it is a plaintiff's right to bring her case in federal court.  Federal courts will only hear cases when the person bringing the claim has actually been injured.  Taxpayers usually cannot show that they have personally been injured, and so they almost never can sue in federal court over government expenditures.  About forty years ago, however, the Court held that taxpayers could challenge government spending on religion.  While this case would seem to change that rule, Justice Kennedy, writing for the majority, explained that because Winn was about tax credits, not government spending, the facts were different enough to warrant a different result.  In her first dissent as a Justice, Justice Kagan disagreed emphatically, dismissing the majority's distinction as a mere formality; the opinion is interesting, even for non-lawyers, and it might be a good starting point for those interested in learning more about Court opinions.

Posted in Cullen v. Pinholster, AZ Christian Sch. Tuition Org. v. Winn, Featured, Plain English

The Court was in the news this week:  In the forefront of everyone’s mind, the big oral argument in the Wal-Mart v. Dukes case (more on that in a minute).  But aside from Wal-Mart, the Court also issued opinions in two other cases (unanimously reversing the Ninth Circuit yet again) and dismissed one case as improvidently granted.  Let's talk about them all.

First, if you are reading this entry, you are probably dying to discuss the Wal-Mart case.  If you read or heard anything about this case this week, you probably heard a popular sound bite:  the company is "too big" to be sued.  If you think that sounds strange "“ how can a company be too big to be sued? "“ you are right.  The issue in Wal-Mart is not that the company is too big, but that the class of plaintiffs may be.

Let me explain.  Wal-Mart, as a giant company, employs a lot of people, many of them  women.  Many women who work at different Wal-Mart stores across the country have complained that Wal-Mart paid them less than men with similar qualifications and job responsibilities and failed to promote them at the same rate as men.  In other words, they argue that Wal-Mart makes a company practice of gender discrimination.

Now, there are two possible ways that these women could sue.  The first way would be for each individual woman to bring her own independent lawsuit.  Of course, there are two significant problems with that approach:  First, the courts could be overwhelmed with lawsuits, all making similar arguments; second, many women who work at Wal-Mart probably cannot afford to hire an attorney to sue a corporate giant with an in-house legal department and the funds to pay as many lawyers as necessary.  Enter the class action, a legal device that would join all of the women together into one lawsuit brought by one set of lawyers who would eventually be paid out of any money that the women receives; after the lawyers are paid, the women would each get their share of the rest.  One more detail you should know about "classes":  any potential plaintiff is free to "opt out" of the class, meaning that she could choose to bring her own suit if she so desired.

So, what's the problem?  Doesn't the class action seem like the obvious way to go for both sides?  The women do not have to figure out how to make their own individual claims, and the company doesn't have to spend years defending against them all.

But here's the thing:  Wal-Mart knows that if the case doesn't go forward as a class action, there is a good chance that it will never have to defend against most of the individual claims, for exactly the reasons we just discussed.

Wal-Mart's strategy, then?  Try to convince the courts that the case is not appropriate for a class action and that therefore the class of women should not be "certified."

Here's the second thing you need to understand:  Plaintiffs do not just get to decide that they want to form a class.  There are legal requirements that govern when a class action is appropriate.  Those rules give Wal-Mart ammunition, because the company can argue that the plaintiffs as a group do not meet those requirements.  In this case, Wal-Mart's central argument is that class certification is not appropriate because the women's claims do not have enough in common.

Which brings us back around to where we started:  Wal-Mart says that the class is too big, so big that it is impossible for all of the women in the class to have the same kinds of claims.  Because a court, in deciding the class claim, would not be addressing each individual woman's damages head-on, each woman should bring her own case.  The women disagree, saying that although they worked at different stores across the country, they suffered the same kinds of harms, harms that stemmed from corporate policy.

As you've probably read in the news, the oral argument did not seem to go well for the women plaintiffs.  Several Justices asked questions that seemed designed to highlight the differences among the potential members of the class and their claims.  While the Court probably will not issue its decision until sometime in June, it seems likely that it might hold that the women may not form one large class to bring their case (with several ways of reaching that decision, including the possibilities that the Court will say that no class action is appropriate under these circumstances or that several smaller classes are the way to go).

Meanwhile, the business world will be watching the case closely, as will lawyers who regularly represent plaintiffs in class actions.  The Court's holding will have huge ramifications for the future of class actions, and each side therefore has a strong interest in how the case comes out.

Moving on to this week's opinions!  Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines:  Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority's decision.  Indeed, the facts of Connick are pretty upsetting and powerful:  Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable.  He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed.  The catch?  Prosecutors never told Thompson's lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case.  Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.

So it is no surprise that Thompson and the dissenting Justices were upset with the majority's holding in Connick.  Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee's actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors.  But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson's lawyers.  Connick should have been able to see that his office's failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered "“ including many years on death row and several near executions.

In the second of this week's opinions, the Court decided Astra USA, Inc. v. Santa Clara County, holding that health care centers that primarily serve the poor cannot sue drug companies for overcharging them.  Only the Department of Health and Human Services, which has the contract with the drug companies in which the drug companies agree to limit the prices for the drugs that they sell to the health care centers, can bring a lawsuit.  Probably the most significant item of note about this decision is that it continues an almost uninterrupted trend this Term of the Court reversing the Ninth Circuit unanimously.

Last but not least, this week, the Court "dismissed as improvidently granted" the case of Tolentino v. New York.  In this case, like in most "DIGs," the Court did not reveal why it changed its mind about cert., but it happens every Term at least once or twice.  A "DIG" generally occurs, however, because the Court realizes that it should not have granted cert. in a case, usually because the litigation in the lower courts did not proceed in a way that would have properly resulted in the case going to the Supreme Court (a so-called "procedural" problem).   Therefore, the Court cannot properly decide it, and it dismisses the writ of certiorari, affirming the decision of the court below.  While the Court is compelled to DIG if the case is not properly before it, the Justices may well regret the fact that they cannot decide the case, because the issue and the facts in the case interested them (something especially true in this case, in which the defendant claimed that because he had been illegally pulled over by the police, his identity and driving record that were obtained as the result of the stop should be excluded from evidence).

April is the last month for oral arguments at the Court; from April until late June, the Justices concentrate on writing opinions.  For the next three months, then, the opinions will be coming down fast and furious "“ and I'll explain them all in Plain English.

Posted in Tolentino v. New York, Astra USA v. Santa Clara County, Connick v. Thompson, Wal-Mart v. Dukes, Featured, Merits Cases, Plain English

As I discussed two weeks ago when explaining recent Supreme Court opinions, some cases just do not grab the public's attention in the way that others do.  Perhaps that is because their facts seem unlikely to occur in the ordinary world; perhaps it is because the legal theories and arguments are dense, to say the least.  But some cases do really resonate with ordinary Americans, and not just because they are Court headliners.  No, they are probably meaningful to the general public because the disputes, the problems, the legal issues at stake have happened in the course of very ordinary lives, lives that took a dramatic turn when a problem occurred.

Continue reading »

Posted in Matrixx Initiatives v. Siracusano, Kasten v. Saint-Gobain, Featured, Plain English

There were no oral arguments at the Court last week, but the Court remained busy, issuing three opinions.  Even though many Supreme Court cases make headlines, most do not, because they only affect a small segment of the population.  Last week's opinions were a case in point:  they dealt with fairly narrow issues, some of which are not of enormous interest to the general public.  That said, the decisions are still important not only because the parties involved needed their disputes resolved, but also because the cases clarify key areas of federal law.

For example, let's start off with Milner v. Department of the Navy, in which the Court held that an exemption in the Freedom of Information Act (FOIA) precluding the disclosure of certain records only applies to human resources and employee relations issues.   Here, the Court said that because maps of the Navy's explosive storage facilities did not fall under the exception, the Navy was wrong when it refused to disclose such maps to Milner, who lived near a Navy base in Washington State.  Narrow?  Yes.  But the Court felt that it needed to step in and decide this case because federal appellate courts had disagreed about the meaning of the exception (called "Exemption 2").  Indeed, if you review the Supreme Court rules (great Sunday afternoon reading), you'll find that one of the Court's priorities is to resolve so-called "circuit splits" like this one.  Why?  Because the Court wants to make sure that federal law is the same whether you live in Montana or Massachusetts; when the lower courts disagree, it's the Court's job to be the final arbiter.

Milner is also a great example of another of the Court's primary jobs:  statutory interpretation.  As I explained last week, courts use "tools of construction" to interpret ambiguous terms in statutes.  Here, because the adjective "personnel" plainly referred to human beings, the Court held,  the federal government had erred in interpreting it more broadly.  The Court also considered legislative intent, or Congress's purpose in passing FOIA, and noted that Congress wanted government to be transparent, a goal that was circumvented by interpreting the term too broadly.

In another difficult and somewhat obscure area of the law, the Court also issued an opinion about deadlines for filing habeas petitions in Wall v. Kholi.  As I explained here, most experienced lawyers do not understand habeas; the rules are numerous and dense, designed to preclude most challenges to terms of imprisonment, and they are hard to decipher.  Most lawyers do know that habeas rules are strict, strict, strict, denying relief to the vast majority of defendants.  But the Court has been a bit more lenient than usual in recent habeas cases, and Wall was no exception.

Critical to the concept of habeas is "tolling," or stopping the habeas clock (which usually ticks on quickly and mercilessly).  Tolling is important because, when allowed, it gives a defendant more time to bring a habeas claim.  In Wall, the Court held that when Kholi asked a Rhode Island court to reduce his sentence, that request properly "tolled" his federal habeas claim; otherwise, his time to petition the federal court would have run out.  In holding that tolling is proper upon a “properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim,"  the Court agreed with the intermediate appellate court that his state claim was not a direct appeal but instead was "collateral."   Collateral review tolls the statute, the Court said, opening the doors for other defendants to wait out their state claims before filing federal habeas petitions.

But the case that made the most headlines this week was definitely Skinner v. Switzer,  As Lyle explained here on Monday, habeas was also relevant in this case, which involved an effort by Hank Skinner, a Texas death-row inmate, to have DNA evidence recovered from a crime scene tested.  The Court agreed with Skinner (whose trial attorney did not seek to have all available evidence tested) that defendants can file lawsuits under federal civil rights laws to have DNA evidence tested; they are not, as the state argued, required to rely only on federal habeas laws (which, as I explained above, would be more restrictive).  But the Court and many commentators emphasized that even if, as a matter of fairness, Mr. Skinner could sue to have the DNA tests run, he would not necessarily win that suit; indeed, under prior Court holdings, he probably would not.  Still, as the three dissenting Justices commented, it certainly seems likely that many inmates will sue under a civil rights theory "“ figuring that they have nothing to lose "“ making this a case that will cause the federal trial courts to sit up and take notice.

Posted in Milner v. Dept. of the Navy, Wall v. Kholi, Skinner v. Switzer, Everything Else, Featured, Plain English

What a week at the Supreme Court!  Through six arguments and six opinions, the Court addressed such important legal issues as the First Amendment, criminal sentencing, the constitutional rights of criminal defendants, appeals by veterans, and corporate privacy.    What's more, several opinions made legal history in what some view as some of the most important cases of the Term so far.

Most of the attention from this week's opinions has been on Snyder v. Phelps, and not all of the commentary has been positive.  Why?  Because in one of the two or three big First Amendment cases of the Term, the Court held that even extremely repugnant speech "“ political picketing at a military funeral "“ is protected by the Constitution if it addresses publicly important issues.  So what's the fuss?  Haven't we known that for a while that speech we do not like is protected (think pornography, videos of animals being killed, white supremacist mantras)?  Well, some members of the public have criticized the decision, arguing that we should honor our soldiers and agreeing with Justice Alito that a funeral should be private, not a bully pulpit for extreme political views.

While it's true that the facts of this case are particularly disturbing (the church members involved chose a fallen soldier's funeral service to picket, claiming that U.S. soldiers deserve to die because our society is so perverted), most legal experts agree that the decision in this case is probably right.  That's because the Court has held time and again that the First Amendment was designed to protect speech that we do not like; after all, we wouldn't need to worry about speech that's more palatable.  In other words, the uglier the message, the more we turn to the First Amendment to protect it "“ with some limits, of course (like child pornography and obscenity).

Still, as many have noted, there is always a downside to freedom of speech "“ once the Court declares that a certain kind of speech is protected, such hurtful messages are likely to multiply.  That may be the case here:  the church involved has promised to send more protesters to more military funerals, and other groups are likely to follow.

The Court's decision in Michigan v. Bryant, a Confrontation Clause case, also caused a bit of a stir, but not necessarily from the public.  No, the distressed party here was Justice Scalia, who disagreed emphatically with Justice Sotomayor's opinion for the Court, which held that statements made out of court during an emergency are admissible as evidence in a future trial.  The case involved a victim who died from a gunshot wound; while he was bleeding to death and waiting for an ambulance, he told police that "Rick" (apparently referring to the defendant, Richard Bryant) had shot him.

Bryant was the latest in a long string of cases involving the Confrontation Clause, a provision in the Sixth Amendment that guarantees criminal defendants the right to confront witnesses against them.  In a landmark 2004 case called Crawford v. Washington, Justice Scalia wrote for the Court in explaining that the Confrontation Clause means what it says:  witnesses who want to testify against a criminal defendant have to do so in court and subject themselves to cross-examination.  The problem?  Often, witnesses (like victims of domestic violence, for example) are unavailable or unwilling to come to court.  That's when prosecutors like to use statements that they made at the scene of the crime.  The Crawford line of Confrontation Clause cases makes clear that the Constitution prohibits such out-of-court statements, even though evidentiary rules allowed juries to hear them under some circumstances.

So why is Justice Scalia mad?  One reason is that many consider the Confrontation Clause to be "his" doctrine:  he has written most of the majority opinions concerning the Clause over the last several years.  In his view, this was an easy case (in fact, he said so explicitly in his dissent), and Justice Sotomayor and the majority got it wrong.  The statements that the victim made in Bryant should not have been admissible, because the police were investigating a crime when the victim said that Bryant had shot him.  Because they were in the course of an investigation, the intent of the police in eliciting the accusation was "testimonial," or intended for use at a future trial; they were not trying to get the victim to help them find a killer on the loose.

One last note about the Confrontation Clause "“ the movement led by Justice Scalia to enforce the clause on its plain terms is a great example of one that is not purely ideological.  If it were, we might think that Justice Scalia and other Court conservatives would seek to limit the rights of criminal defendants, not expand them by giving them constitutional arguments designed to make the prosecution's case harder.  But the ideological bias against criminal defendants is balanced by a concern for strict interpretation of the Constitution, another component of Justice Scalia's judicial philosophy.  As he sees it, if the Constitution says it, the Court has to follow it.  Period.

First Amendment and Confrontation Clause cases always garner a lot of attention, but over the last several years, after 2005's United States v. Booker, so, too, have sentencing cases.  In Booker, the Court held that sentencing guidelines (promulgated by the Federal Sentencing Commission, a quasi-legislative agency) could not be mandatory, only advisory.  And this week, in Pepper v. United States, the Court handed down another case in the line of cases following Booker, holding that a judge can be more lenient than the sentencing guidelines suggest if a defendant is rehabilitated after his initial sentencing.  In Pepper, the government appealed a downward departure in Jason Pepper's sentence under the then-mandatory guidelines, and the appeals court sent the case back to the district court.  By the time the district court revisited the issue, Pepper had served twenty-four months, completed a drug treatment program, and enrolled in community college "“ factors the Supreme Court now says the district court properly considered.

And how about privacy?  In one of the week's biggest cases, FCC v. AT&T, the Court held that corporations do not have a right of "personal privacy" under the Freedom of Information Act (better known to most as "FOIA").  While it might seem funny to think of corporations as "persons" at all, in fact, the law often includes them in the definition of "personhood."

But this case turned on the word "personal."  What does the adjective mean for purposes of FOIA, which says that law enforcement records that "could reasonably be expected to constitute an unwarranted invasion of personal privacy" do not have to be disclosed under the Act?  Does "personal" refer to the corporation if the corporation is legally a "person"?  No, said Chief Justice Roberts for a unanimous Court, drawing on standard dictionary definitions to support the holding.  While most words with the same root have the same general meaning, regardless of the part of speech, that is not always true; he offered examples like "squirrel" and "squirrelly," "corn" and "corny."  And confirming many recent observations that the Justices have a sense of humor, he ended the opinion by saying, "We trust that AT&T will not take it personally."

Huh, you might think.  Does the Court usually just look things up in the dictionary?  The answer:  sometimes.  Many cases before the Court (like this one) involve an ambiguous word in a federal statute; the Court's job is to tell the lower courts just what that word means so that federal courts from California to the Carolinas apply the same definition to cases before them.  To decide the meaning, the Court will draw on any number of "tools of construction," or ways to interpret the term's meaning.  Usually, the Court will look first to the plain meaning of the word; if the meaning is clear, usually the Court will go no further, leaving it up to Congress to change the language if necessary.  But if the meaning is not clear (and, on occasion, even if it seems to be), the Court will look elsewhere for help: the legislative history, for example, or a policy reason to interpret the word in a particular way.

The Court issued two other decisions this week.  In one case, Henderson v. Shinseki, a veteran sought disability benefits, but that very disability caused him to miss a deadline to file an appeal when they were denied.  In an opinion by Justice Alito, the Court held unanimously that veterans who miss filing deadlines in special tribunals may still be able to bring their cases, including because Congress has a long history of caring about veterans.  And in Staub v. Proctor Hospital, the Court unanimously held that an employer can be liable for discrimination if a decision that is detrimental to an employee is influenced by bias, even if the person who actually makes the detrimental decision is not the biased party.   In other words, if someone in the chain of command is biased, and that person influences an employment decision, the employer is liable under federal law "“ even if someone else carries out the decision. Although the case came to the Court under a law with fairly limited application, many have commented that its holding will affect employment discrimination cases more broadly.

Next week will be a bit quieter at the Court, but we're expecting at least one opinion, which I'll explain here on the blog.  I'll also take the opportunity to discuss the major oral arguments from the February sitting . . . in Plain English.

Posted in Henderson v. Shinseki, FCC v. AT&T, Michigan v. Bryant, Staub v. Proctor Hospital, Pepper v. U.S., Snyder v. Phelps, Featured, Plain English

After a few weeks of relative quiet at the Court, this week offered Court watchers lots to talk about.  Thanks to four oral arguments and four opinions, plus lots of other Court-related activity, there's plenty to explain in Plain English.

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Posted in Featured, Plain English

If it feels like a quieter time of year at the Court, it isn't "“ it's just the more visible Court tasks that have gone under the radar.  After the flurry of January arguments and opinions, the Court has settled down for its long winter's work (no, not nap), and there are no more arguments until the end of February.  Still, those within the Court building are working hard "“ with only twelve opinions in merits cases handed down so far (as well as one affirmance by an equally divided Court), the Court is considerably behind last year's pace with respect to deciding cases.  Significant?  Probably not "“ because the Court sets its own schedule, opinions ebb and flow over the course of any Term.  Still, with dozens of argued cases to decide by the end of June, the law clerks and Justices are most likely hunkered down at their desks.

But this week the Court did issue three opinions, across a range of topics.  In Thompson v. North American Stainless, the Court took on Title VII of the 1964 Civil Rights Act and the topic of retaliation in the workplace, deciding that when a worker complained to her employer about sex discrimination, the boss was no more entitled to fire her fiancé in retaliation than he was to fire the complaining employee herself.  The majority's opinion reflected common sense, explaining that it did not make sense to give employers a retaliatory loophole in giving them tacit permission to retaliate against close family members while prohibiting such actions against the whistleblowers.

But Thompson made for the classic case of the "slippery slope," a legal concept meaning that a decision that makes sense in a particular case might not make as much sense when taken to its logical extreme.  In its opinion, the Court tried to stop the snowballing before it began by making clear that the "close family member" rule might extend to people other than spouses (or, indeed, soon-to-be spouses), but probably would not extend to distant acquaintances. 

So, how will we know exactly whom Title VII protects?  Under Thompson, it's crystal clear that whistleblowers, their fiancés, and by logical extension, their spouses are protected.  But that is probably where the Supreme Court will stop its analysis.  In cases like this, once the Court has drawn parameters (fiancés: protected; acquaintances: not protected), the lower federal courts litigate and fill in the gray area.  Therefore, the "next-door neighbor" and "great-aunt" cases will probably arise and be decided by the district and circuit courts (courts that do the vast majority of the judicial decision-making in the United States) over the next several years.

A final note about Thompson:  As Nabiha mentioned in Tuesday's roundup, several news outlets commented that, although the conventional wisdom is that the Roberts Court favors corporations and the business community (a topic about which Fortune did a cover story a couple of weeks ago), employees have recently been winning retaliation cases before the Court .  It's important to keep in mind that it's hard to make sweeping generalizations about the Court or, indeed, about any Justice on the Court "“ as soon as you try, you are likely to be surprised.  Although study after study has shown that the Justices often do act according to their policy preferences "“ and, for some members of the Court, that might be pro-business "“ they also reason their way through cases and try to reach supportable, logical results.  Thompson is a great example of a case in which the Justices thought about a case based on its facts and reached a logical conclusion.  (And, yes (I can hear you screaming at me!) sometimes we do see what appears to be a policy bias  but my point is merely that the Justices do not always act according to their policy preferences.)

How about those pesky credit card interest rates?  Did yours go up a few years ago "“ perhaps even without your knowing that they would?  Unfortunately, you're out of luck; in Chase Bank v. McCoy, Justice Sotomayor wrote for a unanimous Court in holding that, before 2009, credit card companies did not have to notify cardholders in writing before they raise interest rates.  Of course, under the Federal Reserve Board's Regulation Z, now they do "“ but before 2009, the regulation was not explicit on this point.

But this case is about more than whether the credit card companies acted properly in raising rates without written notice; it is also about a common issue at the Court:  how much should courts defer to federal agencies when the agencies interpret and apply either their own regulations or federal laws?  If that sounds like a mouthful, it is.  In this case, the Federal Reserve Board passed regulations to implement the provisions of the Truth in Lending Act (a federal statute).  However, when several courts misunderstood what the Board meant in its regulations, the Fed tried to clarify.  McCoy, then, was about whether the Court should listen to what the Fed said it meant to say in Regulation Z, or whether instead it should decide for itself what Regulation Z actually means.  In reading the Court's opinion in McCoy, most commentators agree that the Court did what it should have done "“ it listened to the Fed and declared its interpretation to be the correct one, rendering it law.  But while the Court often defers to agency interpretations, it does not always do so "“ a larger topic for another day.

While many of the Court's cases revolve around fascinating facts, quite a few cases each Term are questions of procedure, or the rules surrounding the litigation process.  In Ortiz v. Jordan, the Court decided that once a trial has already taken place, a party to a case may not appeal a denial of summary judgment "“ which sounds like another mouthful.  Let me explain.  "Summary judgment" is a decision by a trial court to decide a case before it goes to trial.  For a trial court to grant summary judgment, it must be convinced that there are no important factual or legal issues that might cause a reasonable jury to decide the case differently.  In other words, the case is a slam dunk.  If the trial court denies summary judgment, one of two things usually happens:  1) the parties settle; or 2) the case goes to trial (which can also happen if the result of an appeal is to affirm the trial court's denial of summary judgment).  In this case, prison officials moved for summary judgment in a case brought by prisoner Michelle Ortiz for violation of her civil rights due to a prison rape.  When the trial court denied the motion for summary judgment, the parties went to trial, and Ortiz won a large judgment.  After the jury verdict, the prison officials then appealed the denial of summary judgment.  This, the Court explained, is where the prison officials went wrong:  they should have filed what is called an "interlocutory appeal," or an appeal before the final judgment in the case, when the motion for summary judgment was denied.  By waiting until the trial was over, they slept on their rights, or waited too long. 

One last observation about this week's opinions: All three cases were decided unanimously, albeit with a few concurrences thrown in.  Although, as we discussed last week in Plain English, the Court is unanimous in a large percentage of the cases it hears, a run of six (and seven of the last eight) unanimous cases in a row is noteworthy.  To what can we attribute this run of agreement among the Justices?   Time of year?  Maybe "“ especially because the Court might announce its opinion in a case it considers "easy" to decide before it announces others about which it is still battling internally.  Subject matter?  Perhaps  – none of the unanimous cases of the past few weeks has been in a tricky Constitutional case.  But will this Term be noteworthy for an unusual unanimity rate?  We'll see as the Term goes on . . . and I'll be here to comment on it in Plain English.

Posted in Thompson v. N. Am. Stainless, Chase Bank v. McCoy, Ortiz v. Jordan, Featured, Plain English

Many of you have written to me to express your views about my last Plain English post, which covered this month's opinions, not to mention the Ninth Circuit reversal rate.  If you think you're passionate, you should watch an oral argument sometime (you can stand in line at the Court "“ just get there really early for the "big" cases); advocates before the Court are especially passionate about their causes, and even the Justices can sometimes get a bit testy when it comes to arguments or decisions with which they disagree.

A case in point:  The Court's decision last week to deny cert. in Alderman v. United States gave rise to a vociferous dissent from Justices Scalia and Thomas, who believed that the Court should have heard the case.  At issue in the Ninth Circuit case was a federal law that prohibited convicted felons from owning body armor.  But at the heart of the case was the Commerce Clause, a constitutional provision known and feared by every first-year law student.  Essentially, the Commerce Clause is an extremely broad source of power for Congress; as the Court has interpreted it, Congress can regulate any activity that involves interstate commerce.  (Okay, all you Constitutional Law junkies out there, yes, that's a simplification, but that's the meat of it, anyway.)  For many years, Congress treated the Commerce Clause as a free for all, regulating anything and everything in the name of commerce.  Several years back, however, in a case that any first-year law student will also know (the mighty United States v. Lopez), the Court put the brakes on the Commerce power, holding that Congress can only regulate when there really is a relationship between the regulated activity and interstate commerce, not a manufactured or tangential one.

Court watchers largely viewed Alderman as a logical follow-up to Lopez and the case that followed it, United States v. Morrison.  So many "“ Justices Scalia and Thomas among them – were surprised when the Court denied cert.  But, you might comment, the Court does not hear most of the cases it's asked to hear "“ in fact, it only grants about one percent of the cert. petitions it receives each year "“ so what's the big deal?  That is usually the way the Justices look at the denials of cert. petitions, too.  Because it is not at all unusual for the Court to deny cert "“ and perhaps because the Justices' usual practice is to display respect for their colleagues "“ dissents from denial of cert. have traditionally been quite unusual, a sign that a Justice felt so strongly about a case that she could not wait for the issue to reach the Court again in another case.  This Term, however, we've seen quite a few such dissents from the denial of cert., most notably from Justice Sotomayor.  Will the trend continue?  Court watchers will certainly be interested to see.

On to the notable arguments from this month.  Let's start with a case that might seem a little dull to most, but has one exciting element:  Vickie Lynn Marshall, better known to most of us as Anna Nicole Smith.  Yes, it's true, she's dead, but the controversy about her late husband's estate churns on.  As Lyle describes quite cannily here,  Stern v. Marshall is an ongoing legal soap opera "“ after all, how many Playboy models can say that they've had a case before the Supreme Court not once, but twice?  (The first case involving Smith's tycoon husband's estate reached the Court in 2006, garnering much media attention; although the detail did not make the news, Court insiders disclosed that the reality TV star asked to bring her small dog to court with her (a request that was presumably denied).) This iteration of the case takes on bankruptcy issues related to the disposition of the many millions of dollars involved and will decide how exactly to interpret a major federal bankruptcy statute.

And you thought the Supreme Court could never be exciting.

Not exciting enough for you?  Well, then maybe state secrets will grab you.  In Boeing v. United States, the Court considered the doctrine for the first time in decades, reviewing how and when the government can stop litigation because it would reveal a classified government information.  In this case, the Navy contracted with two private companies to build a bomber aircraft, but then it declared that they were in default.  When the two companies sued, however, they could not make their case because the government claimed that state secrets were involved.  Now, you might ask, doesn't it make sense that the government should be able to withhold this information in the interest of national security?  But, the companies countered, the government started this dispute by demanding money from them when it accused them of defaulting.  When they sought to defend themselves and demand more money, the government would not give them the documents they needed to defend themselves.  Will the Court agree with the companies that the government's rule is "pretty convenient" for it (as Chief Justice Roberts put it) and a "tails you win, heads you win" way of interpreting the law (Justice Kagan).  We'll see who actually wins within the next few months.

Criminal law and procedure always make up a large portion of the Court's docket, whether the issues stem from the Constitution (such as in cases involving the exclusionary rule, or the rule that evidence resulting from illegal searches and seizures is usually inadmissible in court) or from federal statutes (such as those defining and prescribing punishment for crimes).  Last week, the Court heard argument in two such cases, Kentucky v. King and Sykes v. United States.

Let's start with Kentucky v. King, a case about warrantless searches.  Usually, the Fourth Amendment requires the police to have a warrant before they can enter and search a home or other place where someone has a "reasonable expectation of privacy."  To get a warrant, the police must give a judge good reason to believe that a crime has been (or is being) committed, a legal concept called "probable cause."  There are various exceptions to the warrant requirement, but the Court in King is considering the "exigent circumstances" rule, which allows the police to enter a home if they reasonably believe that an emergency "“  like an imminent danger to someone’s life or property "“  exists.  But if police conduct creates the emergency, are they still entitled to enter a home without a warrant?  Or, as Justice Kagan seemed to suggest during the argument, would such a rule essentially allow the police to enter a residence at will whenever they reasonably believed that drugs were being used?

In this case, after chasing a suspected drug dealer into an apartment, the police smelled marijuana behind an apartment door.  Because they did not know whether the fleeing suspect was in that apartment or the one across the hall, the police knocked on the  door and announced themselves.  When they heard movement inside the apartment, they believed that the occupants might be destroying evidence, and so they entered the apartment without first getting a warrant.  The apartment turned out to belong to Hollis King, and the suspect was not inside.  However, they found King and drugs in the apartment and arrested him.  King challenged the admission of the evidence, claiming that the exigent circumstances rule did not apply because the police themselves created the emergency with their knock.  At oral argument, this point was debated for most of the allotted hour; while some Justices seemed content to allow the police to enter in any emergency, even if they themselves created it, others "“ like Kagan and Sotomayor "“  seemed genuinely troubled by the idea of giving police so much power and called on the Court to look to precedent which prohibited such warrantless searches.

In Sykes v. United States, on the other hand, the criminal defendant was responsible for creating something of an emergency circumstance "“ or at least a highly dangerous one "“ when he fled from the police in his car, leading to a high-speed chase.  At issue in the case was a federal statute, the Armed Career Criminal Act ("ACCA"); under this statute, if Marcus Sykes's previous three convictions were for "violent" felonies, he would receive an enhanced sentence for illegal weapon possession.  Sykes argued that fleeing from the police after the police ordered him to stop was not such a felony because it was not "purposeful, violent, and aggressive," as required by a previous Court holding.

The case brings up several interesting questions, many of which explored by the advocates and the Justices during the argument: Can running away be said to be "aggressive"?  (Chief Justice Roberts).  Does prompting a high-speed chase result in a serious risk of injury? (Assistant to the Solicitor General Jeffrey Wall).  And what does the term "violent felony" encompass, anyway?  Such a statutory interpretation exercise, in which the Court must define an ambiguous statutory term, is common fare for the Court.

Because the Court is a court of general jurisdiction (meaning that it reviews cases about many legal topics, unlike a tax court or bankruptcy court, for example), it hears many different types of cases involving federal and constitutional law "“ as evidenced by the argument in FCC v. AT&T this week.  Many Court watchers view this case as a logical follow-up to the provocative Citizens United decision of last Term; it, too, involves the rights of corporations, this time to privacy normally afforded human beings.  AT&T has argued that, under its right to privacy, the federal government should not release the communication giant's confidential documents.  But, as Bob Barnes noted here, the Justices didn't seem to be buying the argument that corporations had privacy rights.

So what is it like to be an advocate with an uphill battle in persuading the Justices?  For an attorney who argues regularly before the Court, part of the fun is in convincing the Nine that her case holds water.  Still, even the best advocate loses at least occasionally; Georgetown law professor Richard Lazarus is fond of one particular story about how his law school friend "“ none other than Chief Justice Roberts,  once one of the most highly respected members of the Supreme Court bar "“ had to tell his client that they had lost their case by a vote of nine to zero.  How could that happen?  asked the client.  How could we lose nine-nothing?  Well, the future Chief Justice replied, there are only nine of them.

Last but not least, in Montana v. Wyoming, the Court heard arguments in its only original case of the Term.  Although the Court usually has appellate jurisdiction to hear cases "“ that is, it reviews cases coming from state or federal appellate courts "“ it has original jurisdiction (which means that it serves as the case of first and only resort) in cases in which a state is suing a state, as well as in rare cases involving foreign dignitaries.  Once again, Lyle hit the nail on the head when he commented that this river compact case is murky in its depths; while the Justices seemed to enjoy debating which state had first dibs on the water in the Yellowstone River, the issues of fair river water use left most of us feeling somewhat, well, underwater.  We'll see how the opinions flow "“ dry, rapid, or calm "“ by the end of June.

Posted in Sykes v. U.S., Kentucky v. King, The Boeing Company v. U.S., Stern v. Marshall, MT v. WY and N.D., Featured, Plain English

The last few weeks have been busy ones at the Court, what with Justice Kagan's first opinion, vocal dissents from the denial of cert. from Justices Scalia and Thomas, and oral arguments in some key cases, just to name a few highlights.  

Let's start with a recurring theme of the last few weeks:  The Court and women.  Several commentators have noted that the Court looks and feels somewhat different with three female Justices; in a published interview, even Justice O'Connor commented that her first visit to the Court with three women on the bench felt "pretty amazing."   According to Justice O'Connor, "[I]n terms of having the American people look at the court and think of it as being fair and appropriate for our nation, it helps to have women, plural, on the court."  But what about female advocates?  Are they well represented at the Court too?  Not really, as men appear as lawyers at the Court five times more often than women, perhaps "“ according to some women who argue regularly there "“ because the highly rigorous job can be hard to combine with parenthood, for example.  Still, more and more women are obtaining prestigious positions in the law, a trend that may lead to more female Supreme Court specialists and even more female Justices.

And, speaking of female Justices:  Justice Kagan, the newest Justice, handed down her first opinion last week in Ransom v. FIA Card Services.  As is typical for a Justice's first opinion, the case was not especially controversial; however, although first opinions are often unanimous, Justice Scalia dissented here, perhaps signaling a long future of disagreement between the two Justices at opposite ends of the ideological spectrum?  With many more opinions to come, in both this Term and future Terms, Court watchers will certainly be interested in how this particular relationship develops.

Other opinions have started to come down fast and furious, with several in the last few weeks alone.  Last week, in Mayo Foundation v. United States, the Court held unanimously that medical residents are employees, not students, even though they continue learning while they are employed.  Why was the issue important? Well, if the residents were classified as students, hospitals would not have to pay payroll taxes for them, thereby saving a lot of money. 

On Wednesday, the Court decided three cases, also unanimously (although without Justice Kagan, who did not participate in any of the cases because she had been involved in them in her previous role as the U.S. Solicitor General) .  In NASA v. Nelson, the Court "“ in an opinion by Justice Alito "“ held that NASA could constitutionally do background checks on independent government contractors.  Although the Court assumed that there is a right to informational privacy, it still held that questions about a history of counseling, drug treatment, or drug use did not violate any such right because they were reasonable.  Justice Scalia filed a opinion concurring in the judgment "“ which means that he agreed with the result that the Court reached "“ but he criticized the notion of informational privacy as having no support in the text of the Constitution; his concurrence was pointed and fiery, in a style that Nina Totenberg of NPR called "[c]lassic Scalia."

In Harrington v. Richter, the Court reversed a decision of the Ninth Circuit in holding that a criminal defense lawyer was not constitutionally deficient "“ in other words, he did a good enough job that the constitutional right to counsel was satisfied "“ when he did not consult blood evidence in forming his trial strategy.   Why?  According to Justice Kennedy, who wrote the majority opinion, because a reasonable lawyer might have declined to consider the blood evidence, even though most lawyers probably would have looked at it closely.  In her concurring opinion, Justice Ginsburg agreed that a good lawyer probably would take the blood evidence into account when deciding on trial strategy.  However, she noted that because the prosecution's case was extremely strong even without the blood, Richter probably would have been convicted even if his lawyer had taken the evidence into account.

And in Premo v. Moore, the Court unanimously reversed the Ninth Circuit a third time, holding that Randy Moore's lawyer, who failed to challenge his client's murder confession, still acted competently.  As I explained after the oral argument here, Moore had accepted a plea bargain and was sentenced accordingly, but later challenged his sentence by saying that his lawyer should have tried to have the confession suppressed.   Because the lawyer failed to do so, Moore argued, he was deprived of his Sixth Amendment right to effective counsel.  Unfortunately for Moore, the Court not only held that his lawyer acted as a reasonable lawyer might, but it noted that he was not prejudiced by the admission of the confession, even if the confession was improperly elicited.

As Ed Whelan noted, the Supreme Court unanimously reversed three decisions by the Ninth Circuit on the same day.  The observation is interesting in that it reveals three common SCOTUS patterns:  reversal of the lower court's decision, reversal of the Ninth Circuit specifically, and unanimity among the Justices.   Many people do not realize that the Supreme Court reverses far more often than it affirms; in fact, many Court watchers speculate that the Justices consider whether the lower court "got it right" when deciding whether or not to review a case in the first place.  If the lower court was wrong, the theory goes, the Court will want to grant cert. to rectify the situation.  However, even when the Court votes to affirm the lower court, such cases may be regarded as a good use of the Court's limited resources if they resolve a circuit split "“ disagreements between the federal courts of appeals "“ or present an important constitutional issue.

As for the Ninth Circuit, statistics show that it is one of the federal courts of appeals  that is most often reversed.   No one knows exactly why the Ninth Circuit is reversed so often, but some scholars and judges attribute the high reversal rate to the fact that it has more judges than any other federal appellate court, leading to inconsistent rulings and some "outlier" judges, while others chalk it up to a fundamental ideological disagreement between the Ninth Circuit and the Court.

And what about unanimity?  Well, contrary to popular belief, the Justices agree with each other the majority of the time "“ in about forty-seven percent of the cases last Term, for example "“ and far more often than they split by a vote of five to four (which occurred in only nineteen percent of last Term's cases).  Therefore, it is not surprising that all of these cases were unanimous "“ and it is even less surprising that they were unanimous in reversing the Ninth Circuit.

There are no arguments at the Court next week "“ or indeed any at all until the end of February.  Because it will likely be a much quieter week at the Court, then, I will use my next Plain English post to review the January arguments.

Posted in NASA v. Nelson, Harrington v. Richter, Premo v. Moore, Mayo Foundation v. U.S., Ransom v. FIA Card Services, Featured, Plain English

However cold it might have been this week in Washington, D.C. (and if you're not on the East Coast, let me tell you "“ it is cold), action at the Court was hot.  Yes, now that we are a full two months into the Term, it feels like we never left "“ just in time for the Christmas recess. 

 The week started off big when the Court granted cert. in Wal-Mart v. Dukes, the class action employment discrimination case against the retail giant that Court watchers have been eyeing for months.    The Court won't be considering whether Wal-Mart actually discriminated against its female employees; instead, it will hear arguments about the class action mechanism itself.  As I've explained in previous Plain English posts, a class action is a type of lawsuit where many plaintiffs with similar claims join together and bring one suit, rather than many individual ones.  A few "named plaintiffs" whose claims and experiences are typical of the rest of the class assert the legal rights of all the other class members.  Courts often see class actions as efficient "“ after all, why hear pretty much the same case a thousand times if all one thousand plaintiffs agree to accept a single outcome?  Plaintiffs see class actions as advantageous when their individual claims are too small to warrant the time and expense of a trial and when they can afford to hire a lawyer (and get a lawyer interested in their case) en masse but not individually.  Lawyers often see class actions as lucrative:  if they get a whole bunch of plaintiffs together and take a percentage of their damage awards for a fee, then they can work hard but get paid well for it.  Of course, there are all kinds of criticisms of class actions, too, among them the concern that the lawyers end up making much more money than the plaintiffs do, but federal procedure rules allow class actions so that plaintiffs can receive something they want and need:  an opportunity to bring their cases in court.

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Posted in Chamber of Com. v. Whiting, Thompson v. N. Am. Stainless, Wal-Mart v. Dukes, Featured, Plain English

December is here, and by this time of year, we are starting to see the Court multitask, so to speak "“ issuing opinions in cases heard over the past two months, hearing arguments in cases granted several months ago, and granting cert. in new cases.  Earlier this week, the Court decided a controversial case unanimously, and it heard arguments in several others.  Let's discuss "“ in Plain English.

A key concept for Court watchers to understand is the difference between finding facts and applying law.  Federal district courts are fact finders; they decide what happened and who did what in a legal dispute.  Like other appellate courts, the Supreme Court relies on the facts that have already been established "“ a factual "record" "“ and decides how the law properly applies to those facts.  In some cases, when the law is unclear or is still developing, the Court must articulate new legal standards.  Then it is up to the lower courts to apply those standards in future cases. 

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Posted in Brown v. Plata, Los Angeles County v. Humphries, AZ Free Ent. Club v. Bennett, McComish v. Bennett, Featured, Plain English

If it feels like last week was a quieter week at the Court, you are probably right; there were no arguments and no Conference.  But before all of us take a much-needed holiday break, we can review what did happen at the Court last week.  First, the Court issued its first signed opinion of the new Term, in two cases about criminal sentences:  Abbott v. United States and Gould v. United States.  Considering that these cases were only argued just over a month ago, it's not surprising that the decision was unanimous (with Justice Kagan recused).  In other words, all of the Justices saw this one the same way, and Justice Ginsburg (who is known for being a speedy writer) wrote the opinion quickly.

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Posted in Tolentino v. New York, Abbott v. US; Gould v. US, Fowler v. U.S., Featured, Plain English

Last week, I wrote about several fascinating oral arguments at the Court.  As Dahlia Lithwick commented with her signature dry humor,  some of this week's arguments were dense and technical.  On the other hand, the Justices also heard arguments about the immigration status of children born outside the U.S. to a U.S. citizen, whether medical residents are "students" for purposes of payroll taxes, and the interaction of copyright law and the "gray market" for products purchased abroad.

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Posted in Costco v. Omega, Flores-Villar v. U.S., Mayo Foundation v. U.S., AT&T v. Concepcion, Featured, Plain English

If you are a Court watcher, or even if you aren't, this was a terrific week at the Court:  who can resist a week of arguments about real issues that matter to real people?  Video-game violence . . . tax credits for donations to religious schools . . .  prisoners' rights to sue for deprivation of their religious freedoms.  Yes, this week of arguments had something for everyone.

Not surprisingly, my Plain English inbox was filled this week with questions about   Schwarzenegger v. EMA, the violent video-game case out of California and the Ninth Circuit.  At issue was a California law banning the sale of such games to minors.  The video-game industry argued that, unlike similar laws banning the sale of pornography to minors, the state's ban on video-game sales and rentals violates the First Amendment.  In the oral argument, the Justices considered kids' exposure to violence in many contexts "“ including fairy tales, movies, and comic books  "“ and questioned whether there was a societal consensus (as there is with sexually explicit materials) that violence is inappropriate for kids.  Some Justices wondered whether parents, rather than the state, should make that decision.

But it was a judicial philosophy "“ "originalism" "“ that caught the attention of many constitutional gurus during this oral argument.  As has been widely reported, Justice Scalia emphasized that although it was "always understood" that freedom of speech did not include obscenity, "[i]t has never been understood that the freedom of speech did not include portrayals of violence."  That led Justice Alito "“ in a remark that he may not have intended to be funny, but which brought the house down "“ to explain to the lawyer arguing for the state:  "what Justice Scalia wants to know is what James Madison thought about video games . . . did he enjoy them?"  Justice Scalia shot back:  "No, I want to know what James Madison thought about violence."

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Posted in Sossamon v. Texas, Brown v. Ent. Merch., Staub v. Proctor Hospital, AZ Christian Sch. Tuition Org. v. Winn, Featured, Plain English

Now that the Term is well underway, we Court watchers have lots to talk about.  True, opinions haven't started coming down the pike, but the arguments so far have been varied, interesting, and relevant.  And this week promises to be equally interesting, with the Court hearing arguments on "“ among other things "“ the constitutionality of a California law prohibiting the sale of violent video games to minors.

I have already written about some of the most interesting October arguments here; today, I'll discuss a few more, as well as some themes we can draw from them.

Many Plain English readers will be interested in the case of Skinner v. Switzer, a case about a criminal defendant who wants access to DNA evidence collected at the crime scene.  Why?  Because it may show that he is innocent of murdering his girlfriend, a crime for which he was sentenced to death.  Moreover, witnesses have now recanted their testimony, and new evidence has been found.

So why wouldn't Henry Skinner logically be able to get his DNA evidence?    Well, for a couple of reasons.  First, fearing it would prove his client guilty, his attorney decided not to ask to have it tested before his trial.  In the oral argument, Justice Sotomayor specifically commented that his attorney's decision then might mean that Skinner could not ask for the DNA testing now.  Second, Skinner might be making the wrong legal argument.  The issue before the Court is whether Section 1983 "“ a federal statute that allows prisoners and others to claim that the government has violated their constitutional rights "“ allows suits like Skinner's.  In another case last year, the Court prohibited some claims under the statute, but it left open the possibility that other challenges "“ specifically, those similar to Skinner's in this case "“ might be allowed.  On the other hand, the Court might decide that his proper action would have been through a habeas claim "“ or one challenging his conviction and imprisonment as improper.  Skinner's response to this dilemma?  He claims that the DNA evidence might exonerate him or show him to be guilty.  Therefore, the request for DNA evidence does not challenge his conviction directly.

But if the DNA evidence might possibly exonerate Skinner, why can't the Court just decide that, in the interest of justice, it should be tested?  Well, this case is one in which the concepts of law and justice might align "“ or not.  In particular, some Justices may be concerned that allowing prisoners to use Section 1983 in cases like this one might give them a back door to get around the very strict limits imposed by Congress in federal habeas law "“ which Congress enacted for the specific purpose of prohibiting endless challenges to state convictions and sentences.

In another case in the October sitting, the Court heard arguments in Kasten v. Saint-Gobain Performance Plastics, a case about a potential fair labor violation.  Kevin Kasten complained to his employer about having to don safety gear before clocking into work and take it off after clocking out.  The robing time, he claimed, was time for which he should be paid.  After Kasten made several such comments, his employer fired him for failing to punch in and out correctly on four different occasions.  Kasten then sued, claiming in part that he was fired as retaliation for his complaints about the time clock.  However, because Kasten never wrote his complaints down, making them orally instead, the Court must now look at whether he ever "filed" a complaint for which the employer could not legally retaliate.

The question arises under the Fair Labor Standards Act, which refers to employees who "file any complaint."  And with whom must the claim be "filed"?  With the employer?  Or with the government?  Because the federal appeals courts were split on the issue of just what constitutes "filing," the Supreme Court.

Like Skinner, the Kasten case brings up legal and policy issues.  On the one hand, Congress sought to protect workers, who would be unlikely to complain about unfairness or lack of safety in the workplace if they thought that they would be fired for raising the issues.  On the other hand, employers like Saint-Gobain claim that requiring formal complaints in writing will protect employers from angry and frivolous lawsuits by employees.

One more interesting detail here, and one discussed quite intelligently by Bob Barnes of the Washington Post in a recent article:  Supreme Court litigation and decision-making often turn on the meaning of a single word.  In deciding what "file" means, or "unavoidable" (see my recent discussion of that statutory term), or any number of other words in other cases, the Court uses what we call "tools of statutory construction."  In other words, the Court has a toolbox full of approaches to defining ambiguous terms.  The Justices might consider the "plain meaning" of the word, look to the legislative history or intent (or Congress's debates about a bill before it is passed), consider the meaning of the term in similar laws, and so on.  In fact, the parties in Kasten have made arguments aimed at satisfying the Justices on all of these fronts, but how the Court will construe the word "file" remains to be seen.

This week will be an exciting one at the Court:  not only will we get to hear the Justices argue about video games, but they will also take on a sensitive topic "“ religion "“ in two different cases:  one involves religious freedom for prisoners, while the other considers the constitutionality of an Arizona program that provides tax credits for tuition payments to parochial schools.  Stay tuned . . . .

Posted in Kasten v. Saint-Gobain, Skinner v. Switzer, Featured, Plain English

Just a few weeks into the Term, it already feels like the long summer never happened.  That might be, in part, because the Term has started off with a bang, with the Court hearing arguments in several important and interesting cases.  Although last week the Court was not in session because of Columbus Day, it heard oral arguments last Tuesday and Wednesday in cases to which many ordinary Americans could relate.  In this post, I will explain last Tuesday's arguments in Plain English; in a few days, I will turn to the arguments from Wednesday.

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Posted in Bruesewitz v. Wyeth, Premo v. Moore, Featured, Plain English

We looked forward to it all summer long "“ and now it is hard to believe that it is actually over.  Yes, the first week of October Term 2010 is a thing of the past, with seven oral arguments (including those in some of the most interesting cases we'll see this Term), Justice Kagan taking her seat on the far left side of the bench, the absence of Justice Stevens (who had smiled down on advocates for thirty-five years), and "“ for the first time ever "“ the same-week release of audio recordings of all oral arguments.

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Posted in Featured, Plain English

Labor Day weekend is now but a memory, which means that the beginning of October Term 2010 (whose name derives from its beginning, as dictated by statute, on the first Monday of October) is right around the corner.  Supreme Court watchers are rubbing their hands together with anticipation.  So what will happen in the days leading up to October 4?  A few details:

First, the Justices will be returning from their summers far and wide.  For example, the Chief Justice spent time this summer in Maine and in Australia, while Justice Kennedy followed his long-time tradition of teaching law students in Salzburg, Austria.  It is common for the Justices to teach in foreign countries, give speeches, and take some vacation time; after all, their schedules are a good deal less flexible from October until the end of June.  Of course, Justice Kagan has been hard at work at the Court since her swearing in on August 7, learning the ropes and catching up on the tasks that the other Justices had the whole summer to complete.

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It's almost here . . . the Senate vote to confirm Elena Kagan as the 112th Justice of the United States Supreme Court.  But, you might ask, can you really say at this point that the Court should be purchasing a leather chair for the soon-to-be fourth female Justice?  Yes, given the Democratic majority in the Senate and the confirmed votes of several Republicans, Kagan's transition from Solicitor General to Associate Justice sometime in the next few days is all but assured.

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Whew!  It's hard to believe that it's July and the Court is in recess for the summer.  As always, we had a flurry of opinions in June; in fact, opinions came down in about a third of the Term's docket in just a few short summer weeks.

So, now that it is summer, now what?  Some of you have asked what happens at the Court over the summer, as well as what the Justices will be doing with their "summer vacations."

At the Court, there's something of a changing of the guard.  This is the time when the law clerks from October Term 2009 train incoming clerks, then make their way to new jobs.  Most of them probably need a vacation; a year at the Court does not come with many days off, especially in May and June, when the opinion crunch is on.  The new clerks will be learning how to write cert. pool memos and deal with last-minute petitions for stays from defendants sentenced to death.  Let's take a second to figure out what each of those responsibilities entails.

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Posted in Plain English, Uncategorized

Can you believe it's over?  Well, of course, not everything is over "“ we are still glued to the TV, watching Elena Kagan's confirmation hearings with enormous interest.  But the Court has finished issuing its opinions in the cases that were argued during the October Term 2009 (so-called because it began in October, 2009), and all seventy-seven argued cases have been disposed of.

Why was Monday was such a banner day at the Court?  Because in a single day, the Court handed down opinions in four cases, three of which were among the biggest of the Term; the confirmation hearings began; and Justice Stevens said farewell after thirty-four years of service.

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While most of the world has eyes only for the World Cup, Court watchers have spent several mornings in June anxiously awaiting the Court's final decisions for this Term.  Last Thursday did not disappoint, as the Court handed down opinions in seven cases, many of which (including the "honest services" fraud cases and a big First Amendment case) have garnered an awful lot of attention, and all of which have far-reaching implications.

Where to start?  In my view, one of the most interesting cases of the Term "“ and one that fell somewhat under the shadow of the Skilling decision "“ was Doe v. Reed, a case about signatures on a referendum petition in the State of Washington.  The referendum issue?  Gay marriage.  Opponents of same-sex marriage in Washington signed a petition objecting to heightened legal status for domestic partners, but then objected to their names being published, citing a concern that they would be harassed and intimidated for their views. 

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Sheila McCorkle is a summer associate at Akin Gump.

With the Supreme Court seeming to release its decisions in bulk as of late, Plain English author Lisa Mc Elroy has called in for reinforcements to help with coverage of the horde of recent opinions. (Lisa posted earlier today on more of the past week’s rulings.)

In Dillon v. United States, the Court touched on an issue related to the once-controversial disparity between the sentences given to crack cocaine offenders and those whose offenses involved powdered cocaine. In 2007, the U.S. Sentencing Guidelines were amended to eliminate this differential treatment, and a later provision allowed these new Guidelines to be applied retroactively to defendants' sentences. In this case, the Court addressed whether a district court acted properly when it refused to reduce a defendant's sentence below the range of potential sentences in the new Guidelines. Although the Court held a few years ago in United States v. Booker that the Guidelines are advisory, not mandatory, in sentencing proceedings, on Thursday it clarified that this rule did not apply to proceedings intended to modify an existing sentence.

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Posted in Plain English, Uncategorized

If you read my Plain English post last week, you will remember that the Supreme Court has been handing down opinions in quite a few lower-profile cases lately.  While the Court announced decisions in three quite visible cases on its last two opinion days, it also issued opinions in six that were not as well known.

Why so many cases that seem, well, small?  Well, a couple of things to consider.  First of all, remember that the Court is trying to get out opinions in about twenty-six cases in one month; as of Memorial Day weekend, the Court had decided only about two-thirds of its cases, not an unusual state of affairs at the beginning of any June.  Here's the thing, though:  Although the Court's Term begins on the first Monday of October and runs until the day before the following year, the Court typically wraps up oral arguments by the end of April and issues opinions in these cases by the end of June.  That means that it has to hand down opinions in an awful lot of cases in just one month, and many of those cases haven't garnered the media attention that some of the "biggies" have.  Hence, the flood of relatively low-profile cases these past couple of weeks.

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Slowly but surely, the opinions are trickling in:  three last week, four this Monday, with more to come tomorrow.  Of course, the slow and even pace means that the Court is saving some of the best (and perhaps, therefore, some of the most hotly debated) cases for last, last in this context meaning the last week of June.

So what happened in these seven cases, which have a considerably lower profile than some of the opinions we are likely to get in the next few weeks?    In Hamilton v. Lanning, decided last week, the Court looked at the proper way to calculate how much income a debtor will have to repay her creditors:  should bankruptcy courts base this calculation on the debtor's past income, or how instead on how much she is likely to have in the future?   [Disclosure:  Akin Gump and Howe & Russell represented the respondent in the case, but the author of this post operates independently of those firms.]  As Sina Kian noted in his opinion recap here, Hamilton is all about interpreting a term in a federal statute:  what does "projected" mean under the Chapter 13 bankruptcy statute?  And, as Sina also noted, the Court was formulaic in its approach to this statutory interpretation issue, deciding that the term refers to future calculations based on actual income (which might vary) rather than those based on past income over a period of years.  The decision was good news for respondent Stephanie Lanning, who could afford to make the payments calculated under the "forward looking" approach, but "“ as the bankruptcy trustee agreed "“ could not afford to make those based on her past income, which had been artificially inflated by a one-time buy-out from a former employer.

Thinking about Lanning makes us understand why even the lower-profile cases are important.  As Sina explained in his recap, the Justices were concerned in part with public policy here.  If a debtor can't afford to make her payments, she's effectively denied Chapter 13 protection.  If, on the other hand, her income rises, she should rightly have to pay her creditors more.

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To all of the Court watchers out there:  It's June! For those of us who love the Court, June is our post-season, March Madness, and November sweeps all rolled into one.  In short, you know it's June when it is getting hot and muggy in Washington, school is out (or at least almost out), and there are still tons of opinions to come before the Justices take off for their summers around the globe.

And this June does not disappoint.  On Tuesday, the Court handed down opinions in five cases and granted cert. in another.  It's no surprise that we got so many opinions in one day "“ June is a short month, and the Court has yet to announce its decisions in twenty-six more argued cases "“ approximately one-third of the Court's docket for the Term.  Included in this list of as-yet-undecided cases are controversies over the First Amendment, privacy in text messaging, sentencing, patents, and other (perhaps more arcane) issues.

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You know the active part of the Term is coming to an end when you get not one, not two, but three really interesting and controversial and important opinions in one day.  Monday was just such a day "“ we're about six weeks from the Court's traditional summer recess "“ so there's tons to talk about this week in Plain English.

Let's start with Graham v. Florida, the juvenile life-without-parole case.   The criminal defense bar has been watching this one closely "“ after all, many criminal defendants are children, and many of these are tried in adult courts and sent to adult prisons.  In Graham, the Court held that juveniles, who aren't neurologically and psychologically as mature as adults, can't be sentenced to life in prison without the possibility of ever being eligible for parole.  The case follows from Roper v. Simmons, a case from a few years back in which the Court held that juveniles cannot receive the death penalty.

First, it's important to understand that this life-without-parole case only applies to kids who haven't killed anyone; whether the Court's ruling yesterday will apply to juvenile killers is still an open issue, perhaps to be litigated down the road.  And it's also critical to know (as Lyle explained here) that Graham is not a get-out-of-jail-free card:  kids serving life sentences without parole (about 130 in all) will still have to show that they are "fit to rejoin society."

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If you're a Court watcher, you've undoubtedly been hooked this week reading all about President Obama's nomination of Solicitor General Elena Kagan to be an Associate Justice on the Court.  As I mentioned a few weeks ago, the water cooler talk will only get more involved and more interesting as the confirmation process goes on.

So let's discuss that confirmation process.  After all, you may have heard that Kagan herself once criticized the process of questioning by senators as fairly worthless, at least in its current formulation.    And if you've been watching the news, you've seen lots of statements from lots of people either supporting or decrying the nomination. 

So what is that all about?  Well, Article II of the Constitution provides that the President will nominate Supreme Court Justices subject to the "advice and consent" of the Senate.  The President makes the nomination, which requires a majority vote by the Senate to confirm.  Under the Senate's rules, the nomination could be subject to a filibuster, which would require 60 votes to break.

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If it seems like the Court has been pretty quiet this week, you're not imagining things. Court watchers know that May is a peculiar time of year at the Court:  scheduled oral arguments are over, but the Justices are hard at work in their chambers writing the opinions that will decide the cases of the Term.  Because the Court generally plans to issues opinions by the end of June for all of the cases that were argued (this Term, that number is seventy-seven), that means that the next six weeks may seem slow to those of us outside of the Court.  Inside the now-closed front doors (more on that in a minute), there's undoubtedly a frenzy going on, with draft opinions circulating from chambers to chambers and law clerks (more on them soon as well) drinking an awful lot of coffee "“ they still have forty-two opinions to complete and announce (not including concurrences and dissents).

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What a week it has been at the Supreme Court!  There has been intense speculation over who will replace Justice Stevens, as well as the ninetieth birthday of this young-at-heart Justice.  On the legal landscape, it's been a notable week for the First Amendment.  We finally had a decision in what most consider to be the most important First Amendment case of the Term, and the Court heard oral argument in another.

Let's start with the oral argument in Christian Legal Society v. Martinez, a case that's supposed to be about whether a public university must recognize a student group that does not comply with anti-discrimination policies.  At question in this case specifically was whether the University of California's Hastings College of Law could deny school funding and other benefits to a religious student organization because the group required its officers and voting members to agree with its core religious viewpoints.

Sounds like a fairly clear, if difficult question.  But to Justice Kennedy and several of the other Justices, the case had become decidedly fuzzier over its lifetime, resulting in Kennedy's commenting that he didn't really know just what the case was about.  Certainly, it's about the need for diversity and non-discrimination policies balanced against the sincerely held religious beliefs of some student groups. But the case is also about, more specifically, discrimination by a religious student group against people who have sex outside of marriage, and even more specifically, people who are homosexual.  Does such a group have a right to do so?  Why or why not?  Does the First Amendment protect the group members' right of association to that extent? Continue reading »

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What a week!  While many thought the past few days would be quiet ones on the SCOTUS front "“ we weren't expecting opinions, the orders were few, and there were no arguments "“ things heated up quickly with the much-anticipated announcement by Justice Stevens that he would retire over the summer.  Those of us reading the SCOTUS tea leaves have predicted for several months now that Justice Stevens was likely to retire, in part because he had not hired law clerks for next Term, in part because some public statements he had made seemed to support that prediction.

But while SCOTUS watchers knew this was probably coming (and, look, the man is turning ninety this week "“ the world knew it was coming), we were still sad to see Justice Stevens go.  The Justice with the gentle manner and sparkling eyes has served almost as long as any other Justice in history, and he has been a part of countless landmark cases.  Continue reading »

Posted in Plain English

Because there are no arguments or opinions at the Court this week, we thought that it might be a good day to catch up on last week's oral arguments in Plain English.

The arguments were many (six) and varied (everything from sentencing law to double jeopardy to securities fraud). 

In Barber v. Thomas, the Court engaged in a tough process of statutory interpretation.   Put simply, a major part of the Court's job is to read federal statutes and figure out what the words in them mean, how they work together, and how they should apply.  Very often, different federal courts of appeals have interpreted the statutory language differently, and it's up to the Court to establish a consistent interpretation of the law.

In Barber, the language at issue is the phrase "term of imprisonment," under a federal law that awards federal prisoners credit "“ in the form of days off of their sentences "“ for good behavior.  While the term might seem simple on its face, in operation, it is anything but.  At argument, the Justices' job was to figure out how different interpretations of the phrase would play out in real-life sentences.  How did they attempt to do that?  Through a common questioning technique called "extension of the hypothetical." Continue reading »

Posted in Plain English

As many of you undoubtedly know, spring's an exciting time for SCOTUS watchers, and not just because the cherry blossoms are abloom in Washington, DC.  For Chief Justice Roberts, a self-professed basketball fan, perhaps it's about March Madness, but for those of us more interested in the Court than in the court, it's because we're starting to reach that time of year when opinions come down fast and furious.  It's been six months since the First Monday in October (which Congress has designated as the first day of the new SCOTUS Term), so the Court has had a chance to consider carefully a number of important cases that were argued early in the Term.  From now until the end of June (the traditionally self-imposed end of the active SCOTUS Term, although each Term officially runs until the beginning of the next), we're bound to see lots of law being interpreted and made.

This week was certainly typical for early spring:  The Court handed down opinions in five cases, several of them in fairly major cases heard several months ago.  There's lots to discuss in plain English.

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So let's catch up on this week's happenings over at the Court.  Argument weeks are always busy, but this one was a bit less so, with only one opinion and five oral arguments instead of the more typical six. Still, with chatter about the new health care bill someday making its way to the Supreme Court, an execution stayed, and Asian carp still threatening Lake Michigan, there was plenty going on to keep things interesting.

Probably most of note this week were the Court's orders, as noted by Lyle on Monday.  An order of the Court can be many things:  it can grant or deny cert., it can stay or deny a stay in an execution, or it can tell attorneys to do something (like file an additional brief).  This week, the Court did not grant cert. in at least two cases in which some thought it might do so:  it declined to review an appeals court ruling that took away the power of federal judges to stop transfers of Guantanamo detainees, and it also denied cert. in a case involving religious music in schools.

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Even though we're only halfway through the week, it has already been an interesting week at the Court.

On Monday, the Court handed down two opinions in cases involving the Speedy Trial Act and attorney advice in bankruptcy proceedings.

Let's start with Bloate v. U.S. You probably know that a criminal defendant has a right to a speedy trial, both under the Sixth Amendment (a provision of the United States Constitution) and under the Speedy Trial Act (a federal law enacted by Congress).  In Bloate, the Court had to decide just how "speedy" was speedy enough under federal law.  As Scott Street explained in his post on Tuesday, the Court invoked its justice sword in holding that time spent preparing pretrial motions can only be excluded from the 70 days allowed to bring a criminal defendant to trial if excluding the days from the day count serves the ends of justice.

Here's what's ordinary about Bloate:  The Court is called upon almost daily to interpret an act of Congress, or a federal law.  Many statutes contain ambiguous terms (What is a "father," for example?  Or a "motor vehicle"? Or, as we will see below in my discussion of Milavetz, a "debt relief agency"?), and one of the functions of the court system is to interpret just what those terms mean.  When a federal statute is really ambiguous, the federal courts of appeals may disagree about what the statute means.  That's generally when the Supreme Court will step in, because it wants to ensure that a federal statute is interpreted and applied the same way in every part of the United States.

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I've been away for two weeks; hence, no Plain English posts.  But what an exciting time to catch up!  For SCOTUS watchers like us, this was not the week to miss, especially because of the oral argument in the long-anticipated gun rights case, McDonald v. City of Chicago.  Other interesting developments?  An examination of Jeffrey Skilling's trial (especially the jury selection) and the wrap-up of our Black History Month coverage.  Add in a same-sex marriage ruling and a huge Miranda case, and you've got a week that could keep even the most reluctant SCOTUS fan entertained.

Let's start with the crown jewel of the week, at least in terms of visibility (yes, some people camped outside the Court for more than twenty-four hours so that they could see the argument):  McDonald v. City of Chicago, the follow-up to the Court's 2008 decision in Heller v. District of Columbia that the Second Amendment ensures an individual right to bear arms. 

To understand McDonald, you'll first have to understand the concept of incorporation.  In a very early case, the Court held that the Bill of Rights applied only to the federal government.  Over many years of jurisprudence, however, the Supreme Court has ruled that most of the rights protected in the Bill of Rights also apply to the states.   The Court has found that the rights are "incorporated" through the Fourteenth Amendment.  In other words, neither the federal government nor the states can make laws that, for example, limit free speech, deny the right to counsel, or allow unreasonable searches. Continue reading »

Posted in Plain English, Uncategorized

Last Wednesday, we posted a list of the CVSG cases for the Term here.  For those of you not engaged in minute-by-minute SCOTUS watching, though, this might be one of many acronyms that makes you want to hang up your morning suit (yes, that reference means something in this discussion) and leave the building.

But CVSG cases may well be some of the most interesting cases of the Term!  Why?  Because these cases are sufficiently important that the Court has decided to Call for the Views of the Solicitor General.

First, let's start with the Solicitor General (or, to those in the know, the "SG").  No, as Greg Garre "“ who preceded the current SG "“ is wont to say, this is not the person whose name appears above the warning on cigarette packs:  that is the Surgeon General.  The Solicitor General is also appointed by the President, but he or she went to law school, not medical school.  The SG represents the interests of the United States, or the federal government, before the Supreme Court.  The current Solicitor General is Elena Kagan; she is the first woman to hold the post.

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Last week at the Supreme Court of the United States was certainly a huge one, especially given the decision in Citizens United. But one of the things we SCOTUSbloggers love about the Court is that every week brings its own new, interesting developments.

Take Monday's short-as-can-be decision in Briscoe v. Virginia.  Now, I and others on this blog have discussed the case from any number of angles (see here, for example).  But for those of you watching and reading out there, Monday's decision may have slipped right by you "“ that is how unexpected it was to some of us, in the timing at least.   Why?  Well, because the case was only argued two weeks ago, as discussed here.   Usually, it takes the Court a while to reach agreement about the proper outcome of a case, then draft an opinion. As I discussed last week when explaining why we waited for quite some time for the Citizens United decision, these decisions are extremely important and far-reaching.   But in Briscoe, the Court decided the case quickly and definitively in what Richard Friedman, one of the attorneys in the case, has called a G . . . . VR.

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Posted in Melendez-Diaz v. Massachusetts, Plain English

By now, you have likely heard the news:  The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections.  While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why?  Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.

The four dissenting Justices were vocal and vociferous:  They voiced the concern that allowing unfettered spending by rich corporations will allow those corporations to influence the outcome of elections in sweeping ways.  They also explained that corporations are not human beings and should not have the same free speech rights that humans do.

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