Status Quo Watch

By on Nov 15, 2017 at 3:18 pm

John Elwood reviews Monday’s relists.

Monday’s order list was a fitting one as the nation approaches the Thanksgiving holiday: It began with a flurry of excitement, followed by torpor.

The excitement came, of course, from the fact that the court granted review in three relisted cases, all of them raising interesting First Amendment questions: four-time relist National Institute of Family and Life Advocates v. Becerra, 16-1140 (presenting a challenge to a California law requiring crisis-pregnancy centers to provide visitors with certain notices); four-time relist Minnesota Voters Alliance v. Mansky, 16-1435 (involving a challenge to a Minnesota law banning political apparel at polling places); and one-time relist Lozman v. City of Riviera Beach, Florida, 17-21 (concerning whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law). There was excitement of a different kind in three-time relist Reeves v. Alabama, 16-9282, as Justice Sonia Sotomayor (joined by Justices Ruth Bader Ginsburg and Elena Kagan) dissented from denial of cert in a case involving whether a prisoner can make an ineffective assistance of counsel claim when trial counsel does not testify about his or her strategic decisions. With two cases related to National Institute of Family and Life Advocates now being held (A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153), the relist rolls have been trimmed by six cases.

But now things are slowing down. We’ve handchecked the entire docket and there are no new relists going in to Thanksgiving week.  So good news, everybody – we can use this coming week to do just what we ought to be doing this time of year: come together with our families and face the soul-crushing emptiness of our lives.

But seriously: Happy Thanksgiving to (both of) our readers!  Safe travels!

I am thankful for the help of Kevin Brooks and Kent Piacenti in compiling the cases in this post.

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Did the Supreme Court’s 2016 decision in Montgomery v. Louisiana implicitly hold that some prisoners have a constitutional right to post-conviction habeas review? In a recent article in the Virginia Law Review, Professor Carlos Vázquez and Professor Stephen Vladeck argue that this “seemingly innocuous” decision rests upon the assumption that prisoners have a constitutional right to habeas review in some court in at least some circumstances — upending the last 50 years of precedent and federal legislation strongly suggesting otherwise. To be sure, Montgomery didn’t say so explicitly. The court held only that a state court sitting in habeas was required to give retroactive effect to the Supreme Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment prohibits the imposition of mandatory life sentences without parole for juveniles. But Vázquez and Vladeck argue that Montgomery‘s holding necessarily rests upon a constitutional right to post-conviction collateral review — even if the court failed to realize it at the time.

wide-shot with Kyle Duncan at lectern for petitioner

Courtroom during oral argument in Montgomery v. Louisiana (Art Lien)

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Wednesday round-up

By on Nov 15, 2017 at 6:55 am

Briefly:

  • Subscript offers a graphic explainer for SAS Institute Inc. v. Matal, which asks whether the board adjudicating challenges to existing patents via the inter partes review process must issue a final written decision with regard to all of the claims raised by a challenger.
  • At Legal Sports Report, Dustin Couker reports that the U.S. solicitor general’s office will participate in oral argument on behalf of the sports leagues in Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting.
  • At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen discusses Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim.
  • At Fa on First, Wen Fa calls Minnesota Voters Alliance v. Mansky, which asks whether a Minnesota law banning political apparel at polling places violates the First Amendment, “a huge case for the First Amendment rights of voters nationwide, regardless of whether they are conservative or liberal.”
  • At the Sentencing Law and Policy blog, Douglas Berman considers “what the voting dynamics might reveal” in Monday’s cert denial in death-penalty case Reeves v. Alabama, which featured a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan but not by Justice Stephen Breyer, who “would seem to be an obvious candidate to provide a fourth vote for taking this capital case up on its merits.”
  • At Education Week’s Education and the Media blog, Mark Walsh reviews a short documentary about Gavin Grimm, the transgender student whose request to use the boys’ bathroom at his high school was the center of a high-profile, but short-lived, Supreme Court case last term, noting that Grimm explains in the film that his “case is not over—it’s now back in federal district court over issues such as standing given that he has graduated high school—but that he’s in the fight ‘for 10 years or more’ if that’s what it takes.”

We rely on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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Petition of the day

By on Nov 14, 2017 at 11:23 pm

The petition of the day is:

17-562

Issues: (1) Whether 18 U.S.C. § 1957 requires the government to trace funds in a transaction involving a withdrawal from a commingled account, precluding a conviction where the account contains sufficient clean funds to cover the transfer; and (2) whether the U.S. Court of Appeals for the 2nd Circuit contravened the Supreme Court’s decisions in Sekhar v. United States and Skilling v. United States by finding sufficient evidence to support Petitioner’s convictions for extortion and honest services fraud.

 
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Jonathan R. Siegel is Professor of Law at George Washington University Law School.

The late Justice Antonin Scalia left his mark on the law in many ways, but perhaps his greatest legacy is that he changed the way we think about statutes. Before Scalia’s tenure on the Supreme Court, most judges and lawyers casually assumed that when a court interprets a statute, its job is to implement “legislative intent.” Courts often paid more attention to statutory purpose and legislative history than to statutory text.

Scalia rebelled against these interpretive methods. He believed that when a court interprets a statute, the court’s job is to read the statutory text and do what it says.  Even if what it says is stupid. Even if what it says is not what anybody intended. The text of a statute, Scalia believed, is the law.

In a recent article, I chronicle and assess Scalia’s campaign for “textualism.” In the end, I suggest, Scalia both won and lost. He had tremendous influence over interpretive methodology. But he never convinced the Supreme Court, or federal judges generally, to adopt his textualist ideal that “the text is the law.” In some cases, federal courts still depart from statutory text in order to implement legislative intent or statutory purpose.

Justice Scalia (Art Lien)

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Tuesday round-up

By on Nov 14, 2017 at 7:13 am

Yesterday the Supreme Court added three cases to its docket for October Term 2017: National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge to a California law regulating pregnancy-crisis-center disclosures; Minnesota Voters Alliance v. Mansky, which asks whether a Minnesota law banning political apparel at polling places violates the First Amendment; and Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim. Amy Howe has this blog’s coverage, which first appeared at Howe on the Court. Additional coverage of the three grants comes from Robert Barnes for The Washington Post. At Bloomberg, Greg Stohr notes that after the grants, all of which raise free-speech issues, “the nine-month term now features six cases, out of 44 total, that turn on the reach of the Constitution’s free speech guarantee.”

At Reuters, Lawrence Hurley reports that in NIFLA, the justices will decide “whether a California law requiring private facilities that counsel pregnant women against abortion to post signs telling clients how to get state-funded abortions and contraceptives violates free speech rights.” Additional coverage comes from Richard Wolf for USA Today, Ariane de Vogue at CNN, Adam Liptak for The New York Times, Greg Stohr at Bloomberg, Tony Mauro at The National Law Journal (subscription or registration required), Brent Kendall and Jess Bravin for The Wall Street Journal, and David Savage for the Los Angeles Times, who reports that “[t]he challengers say the disclosure law violates the 1st Amendment because it forces the faith-based pregnancy centers to send a message that conflicts with their aim of encouraging childbirth, not abortion.” At the Constitutional Law Prof Blog, Ruthann Robson notes that “[t]he Supreme Court’s decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.” Margot Cleveland summarizes the case in an op-ed for the Washington Examiner.

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Petitions of the day

By on Nov 13, 2017 at 9:44 pm

The petitions of the day are:

17-118
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.

Issue: Whether, when the government determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, the National Marine Fisheries Service may list that species as threatened under the Endangered Species Act.

17-133

Issue: Whether, when the government determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, the National Marine Fisheries Services may list that species as threatened under the Endangered Species Act.

Court grants review in three new cases

By on Nov 13, 2017 at 11:21 am

This morning the justices issued orders from last week’s conference. They added three new cases to their merits docket for the term, including two high-profile First Amendment cases, and they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan.

In the first of today’s grants, National Institute of Family and Life Advocates v. Becerra, the justices agreed to weigh in on a challenge by “crisis pregnancy centers” – nonprofits that try to steer pregnant women away from having abortions – to a California law that requires the centers to convey specific messages. The law mandates that nonprofits that are licensed to provide medical services post notices to inform their patients that free or low-cost abortions are available and to provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. The groups that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear – in up to 13 languages – that their services do not include medical help.

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The Supreme Court’s November sitting might be finished, but we’re still going. Ian returns to wrap up by recapping last week’s arguments with Dan. But first, there’s the matter of a very unusual certiorari petition that the Department of Justice filed in a hot-button case that involves both abortion and undocumented immigrants. Even more exciting, we review the first opinions of the still young term. We then stumble blindly through the argument recap in Merit Management Group v. FTI Consulting without the help of our bankruptcy expert. We also recap the argument in the fascinating separation-of-powers case Patchak v. Zinke, learning along the way that Chief Justice John Roberts does occasionally have some use for law professors. And as always, we offer our fearless First Mondays forecasts.

Monday round-up

By on Nov 13, 2017 at 6:58 am

At the Associated Press, Mark Sherman reports that the Supreme Court “is making new legal filings available online starting [today], years behind the rest of the federal court system.” For The Washington Post, Robert Barnes reports that the court “is developing its own online system, rather than being part of PACER, which serves the other federal courts.”

At Law.com (subscription or registration required), Marcia Coyle reports that “[t]he U.S. Justice Department’s request that the Supreme Court consider sanctions against lawyers who advocated for an immigrant teenager at the center of an abortion case [, Hargan v. Garza,] has raised questions about the government’s motivation and threatened to jeopardize the reputation of the solicitor’s office before the justices.” In an op-ed at The Hill, David Luban argues that “[t]he irony is that filing frivolous accusations with the Supreme Court is itself an ethics violation — and DOJ’s accusations against Jane Doe’s lawyers come perilously close to crossing that line.” At The Faculty Lounge, Steve Lubet suggests that “when the government characterizes its own position as ‘at least arguably’ valid, that seems to be at least an admission of weakness, or perhaps an even greater concession.”

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