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Analysis

Conceding that it is hard to draw the constitutional line, the Supreme Court on Thursday attempted once more to spell out when the government may use its money to try to control what people are allowed to say if they take the money.   Between the lines, the opinion seems to say that those who get the money can keep getting it even if what they say does not square with the government’s program goals. They just have to pay for such contradictions with their own money.

If that is the true meaning of the decision in Agency for International Development v. Alliance for Open Society International (docket 12-10), free speech under the First Amendment has made something of a gain.

Chief Justice Roberts announces the opinion (Art Lien)

Chief Justice Roberts announces the opinion (Art Lien)

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We have put together a list of some of the commonly asked questions about orders and opinion announcements that we have gotten during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.

ORDERS

Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the Court took at its most recent Conference, which are reflected in a document (“the order list”) that the Court releases to the public.  The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert.,” short for “certiorari”), but the Court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits.

Question:  What is a “CVSG”?

Answer:  “CVSG” stands for “call for the views of the Solicitor General.”  In most cases in which someone is seeking review of the lower courts’ decision, the Court will issue a straightforward grant or denial.  But sometimes the Court will want the government’s views on what it should do in a case in which the government isn’t a party but may still have an interest — for example, because the interpretation of a federal statute is involved.  So the Court will issue an order in which it “invites the Solicitor General to file a brief expressing the views of the United States.”  It isn’t an “invitation” in the sense that the federal government gets to decide whether it wants to file a brief at all, because the Court expects the government to file.  There is no deadline by which the government is required to file the brief, however.  And the government’s recommendation will carry significant weight with the Court.

Question:  What does it mean to relist a case?

Answer:  When a case is relisted, that means that it is slated for reconsideration at the Justices’ next Conference.  This will be reflected on the case’s electronic docket once the docket has been updated:  you will see the words “DISTRIBUTED for Conference of [fill in date],” and then the next entry in the docket will usually say “DISTRIBUTED for Conference of [next conference after the previous entry, whenever that is].”  Relisting can mean a couple of different things, and we don’t always know what those things are.  It can mean, for example, that a Justice is trying to pick up a fourth vote to grant review, that one or more Justices just wants to look more closely at the case, or that the Court is writing an opinion to summarily reverse (that is, without briefing or oral argument on the merits) the case.  In 2014, the Court appears to have adopted a practice of granting review only after it has relisted a case at least once; although we don’t know for sure, presumably the Court uses the extra time resulting from a relist to make sure that the case is a suitable one for its review.

OPINIONS

Question: What opinions will the Court issue today?

Answer: Unlike some other courts, the Court doesn’t announce in advance which cases will be decided on a particular day.  The only time we have a good sense is the very last day, when the Court issues its final rulings.

Question:  How many opinions will the Court issue?

Answer:  The Court also does not announce in advance how many opinions it expects to release on any particular day.

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Analysis

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

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(Photo by Images Money/Creative Commons)

(Photo by Images Money/Creative Commons)

Analysis

Showing a strong suspicion that big drug companies with deep pockets may be using their money to shield shaky patent rights, the Supreme Court on Monday for the first time cleared the way for antitrust lawsuits to challenge payoffs between brand-name drugmakers to keep would-be competitors who make generic substitutes temporarily out of their market.

But winning such lawsuits will hardly be easy, because the Court refused to start with the premise that such payments are probably illegal.  The five-to-three decision in Federal Trade Commission v. Actavis (docket 12-416) was based far more on antitrust than patent law, and was at least a warning that settling lawsuits — at least in the drug industry — is a practice not necessarily free from risk.  (Justice Samuel A. Alito, Jr., took no part in the ruling.)

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UPDATED Tuesday pm:  Arizona officials have announced that they will now pursue the suggestion offered by the Court’s opinion on how the state might be able to gain a right to require proof of citizenship for voters.  The official statement is here.

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Analysis

In a ruling that might easily be misunderstood if not read very closely, the Supreme Court on Monday simultaneously strengthened Congress’s hand in expanding the ranks of eligible voters, and yet assured states that they retain the ultimate power to decide who gets to vote.  The apparent bottom line: states cannot now require voters to show proof that they are U.S. citizens, but the Court has given them a plan that could gain them that power.

The decision in the case of Arizona v. Inter Tribal Council of Arizona (docket 12-71) had major potential for sorting out the dual roles of Congress and the states in deciding eligibility to vote, and that was even more vital in the midst of a new national controversy over efforts among some states to narrow eligibility.  The end result will give both sides in that controversy encouragement, but perhaps rather confusing legal guidance.

Justice Scalia announces the opinion this morning (Art Line)

Justice Scalia announces the opinion this morning (Art Lien)

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The Supreme Court long ago ruled that an inventor who discovers a phenomenon in nature, or figures out a “law of nature,” cannot get an exclusive right to use or sell that by obtaining a patent from the federal government.  Natural phenomena are the basic tools with which every would-be inventor starts, so locking up the right to use them in a monopoly held by a specific patent owner will frustrate others who might want to look for new ways to interpret that phenomena, the Court has said.

The exclusion of natural substances from eligibility for patents was the theory on which the Court relied Thursday in its unanimous ruling that a company cannot get a patent monopoly on the use and study of human genes that it isolates in the bloodstream, and them takes them out — without changing their natural character — for research.

The case involved a Utah company’s patent for having isolated, outside the human body, two basic genes that contain natural phenomena which suggest that a woman who has them is at significantly higher risk of developing either breast cancer or ovarian cancer.   The company had claimed that the act of locating these genes in blood, and then extracting them for study, was a true invention, something that did not exist before.

The Court said the company actually did not create anything at all, but simply extracted the genetic material from its location in human blood, and setting it apart for study.

The Court, however, said that the company might be eligible to get a patent when it created a synthetic form of those genes — in other words, a laboratory imitation of them.   Such imitations, according to the ruling, do not exist in nature, and so do not run counter to the rule against patenting nature.

(The decision was announced in the case of Association for Molecular Pathology v. Myriad Genetics.)

June is traditionally a busy month at the Supreme Court, with the nine Justices issuing a flurry of opinions before they head out of town for the summer.  (Yes, it’s nice work if you can get it.)  And as a general rule, June is often when we see decisions in some of the Court’s highest-profile cases – remember the media frenzy last June when the Court finally announced its ruling in the challenge to the Affordable Care Act, also known as “Obamacare”?  This year is no exception:  on Monday, a sharply divided Court upheld a Maryland law that allows police to take DNA samples from people who are arrested for “serious” crimes, and Court watchers are still waiting on cases involving same-sex marriage and affirmative action.  But civil rights groups are also watching another case closely:  Shelby County v. Holder, in which the nine Justices hold the future of the Voting Rights Act in their hands.

Notables of the civil rights movement seated in the Supreme Court to hear challenge to Section V of the Voting Rights Act include John Lewis, Al Sharpton and Jesse Jackson. (Art Lien)

Notables of the civil rights movement seated in the Supreme Court to hear challenge to Section V of the Voting Rights Act including John Lewis, Al Sharpton and Jesse Jackson. (Art Lien)

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Analysis

Amid signs that the ruling was a very easy one to reach, the Supreme Court on Monday allowed the state of Michigan to deny a man accused of murder a legal defense that he previously had but then lost the right to use at a second trial.  Allowing the withdrawal of a mental defect defense after the fact, the Court ruled unanimously, did not violate the man’s constitutional rights to fair treatment.   It took the Court less than four weeks to prepare that ruling.

Justice Ruth Bader Ginsburg wrote for the Court in Metrish v. Lancaster (docket 12-547), a case that had been argued on the final hearing day of the Term, on April 24.   The decision, while interpreting generously the power of a state supreme court to cast aside a string of lower state court rulings allowing a legal defense, did not appear to make much new law on retroactivity doctrine. Continue reading »

Analysis

The Obama administration is making a sustained effort to keep the youngest girls who are sexually active from having easy access to the pregnancy-preventing drug known as “Plan B.”    Taking another step toward what may be an ultimate test in the Supreme Court, the administration will ask a federal judge in New York at a hearing Tuesday to put on hold his decision to make Plan B available over the counter — without a prescription –to women of all ages.

Such access, the federal lawyers will argue, should be open only to those who are fifteen years old or older — if they can prove their age.  That will run counter to the ruling earlier this month by Senior U.S. District Judge Edward K. Korman of Brooklyn, that the government by Wednesday must lift all restrictions on retail sales of at least one of two current versions of Plan B.

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Analysis

Virginia went to the Supreme Court with one argument, and only one, for its policy of limiting access to state public records to people who live in Virginia.  That did not seem to work well at the argument in February, but that is not the test that counts.  The Court decided the case Monday, and Virginia won unanimously — primarily on its chosen argument.

The Court, in a decision written by Justice Samuel A. Alito, Jr., upheld the power of a state to limit records access to state residents, on the theory that this gives those individuals some help in monitoring the performance of state government agencies.  The case was McBurney v. Young (docket 12-17).

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