Monday round-up

By on Oct 15, 2018 at 6:53 am

On Friday the court granted cert in one new case, Manhattan Community Access Corp. v. Halleck, which asks whether a private operator of a public-access TV channel is a “state actor” who can be sued for violations of the First Amendment. Amy Howe covers the grant for this blog, in a post that first appeared at Howe on the Court. In a podcast at Howe on the Court, Amy discusses “the week’s orders, oral arguments, and — perhaps most importantly — emergency appeals.” The most recent episode of First Mondays (podcast) recaps last week’s cases and “take[s] a look at the so-called ‘shadow docket’ to see what the justices are up to outside of the courtroom.”

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This week at the court

By on Oct 14, 2018 at 12:00 pm

The Supreme Court released additional orders from the October 12 conference on Monday. The court did not grant any new cases.

The justices will meet next for their October 26 conference. The calendar for the November sitting, which will begin on Monday, October 29, is available on the court’s website.


For four years running, we have pored over the prior term’s relists to give the readers of this blog a clearer idea of just what a relist means. When we began with this mind-numbing task after October Term 2014, a first relist meant that the ultimate odds of a grant were better than 50/50 — not bad when the average chance of a grant hovers around three percent. Being relisted continued to serve as a harbinger during the 2017 term, often signaling when the Supreme Court was interested enough in a petition to seriously consider granting it. But for all that relists still told court-watchers last term, the noise-to-signal ratio increased noticeably compared with previous terms. The increased noise appears to result from three related shifts in the court’s relist practice:

First, the number of relisted petitions increased to 159 in the 2017 term — up significantly from the 129 relisted petitions resolved in the 2016 term. (If you thought that nothing in the Supreme Court changes by 30 percent in a single year, you’d be wrong.) And that figure includes only those petitions that were disposed of during October Term 2017, omitting at least 26 petitions that were relisted during the 2017 term but remained pending as of the term’s end. So the justices appear to be a bit freer about relisting cases.

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Justices take on one new case

By on Oct 12, 2018 at 3:52 pm

The justices met today for their private conference – their first with the Supreme Court’s newest member, Justice Brett Kavanaugh. They announced only one new grant from that conference this afternoon, in a relatively low-profile but potentially significant case.

In Manhattan Community Access Corp. v. Halleck, the justices agreed to review a ruling by the U.S. Court of Appeals for the 2nd Circuit that the private operator of a public-access television channel is a “state actor” – that is, someone who is acting on behalf of the government — who can therefore be sued for violations of the First Amendment. The lower court’s decision, a “friend of the court” brief supporting the television channel told the justices, not only “threatens the viability” of “public-access channel operators around the country,” but it also raises a broader question: whether private property can be a public forum, a place traditionally open for public speech and debate, where the protections of the First Amendment are the strongest. And that question, says the Chicago Access Corporation, a foundation that runs public-access TV channels in that city, has become an important one lately, “as courts are increasingly being asked to consider whether privately owned internet platforms like Twitter and Facebook can ever be public forums.”

The justices did not act on several high-profile cases that they were scheduled to consider at today’s conference, including two petitions arising from a challenge to a 93-year-old cross on public land in the Washington, D.C., suburbs and a challenge to mandatory bar dues for lawyers. We expect the court to issue another set of orders from today’s conference on Monday, October 15, at 9:30 a.m.

This post was originally published at Howe on the Court.

Petitions of the week

By on Oct 12, 2018 at 3:43 pm

This week we highlight petitions pending before the Supreme Court that address the statute of limitations that applies to relators in a qui tam action, the cause requirement to force entry into a home to arrest a suspect, and the question of whether the transformative use of a copyrighted work can be a cognizable market harm.

The petitions of the week are:


Issue: Whether a relator in a False Claims Act qui tam action may rely on the statute of limitations in 31 U.S.C. § 3731(b)(2) in a suit in which the United States has declined to intervene and, if so, whether the relator constitutes an “official of the United States” for purposes of Section 3731(b)(2).


Issue: Whether the transformative use of a copyrighted work can cause a cognizable market harm under 17 U.S.C. § 107(4) if it is used in connection with a commercially successful business that the author is unlikely to enter or authorize.


Issue: Whether the Fourth Amendment requires police officers to have probable cause to believe that a suspect is present in a home before forcing entry into that home to execute an arrest warrant for the suspect.

Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

Posted in Merits Cases

Friday round-up

By on Oct 12, 2018 at 7:14 am

At the close of October Term 2018’s first oral argument session, Jennifer Chacon has this blog’s analysis of Wednesday’s argument in Nielsen v. Preap, which involves the immigration law’s mandatory detention provision. At The Economist’s Democracy in America blog, Steven Mazie reports that the case “boils down to how harshly the government can treat immigrants,” and that “all nine justices struggled to interpret a provision of the Immigration and Nationality Act (INA) hinging on the meaning of ‘when’—and were split over how to read it.” This blog’s analysis of Wednesday’s second argument, in Air and Liquid Systems Corp. v. Devries, which asks whether companies can be held liable under maritime law for injuries caused by asbestos that was added to the companies’ products by third parties after the point of sale, comes from Ronald Mann. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.] Additional coverage comes from Brandi Buchman at Courthouse News Service.

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Tennessee had planned to execute Edmund Zagorski, who is on death row for the 1984 murders of John Dale Dotson and Jimmy Porter, tonight. The Supreme Court would have allowed the execution to go forward, but the state’s governor gave Zagorski a brief reprieve to provide the state with enough time to prepare the electric chair that Zagorski has requested for use in his execution. Continue reading »


On Wednesday, the Supreme Court heard oral argument in the case of Nielsen v. Preap, which involves a challenge to the government’s interpretation of one of the Immigration and Nationality Act’s detention provisions: 8 U.S.C. § 1226(c). The relevant portion of 8 U.S.C. § 1226(c)(1) states that the secretary of the Department of Homeland Security “shall take into custody any alien who— [is inadmissible or deportable on certain specified statutory grounds], when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Mony Preap and a similarly situated class of immigrants challenged the government’s application of this mandatory detention provision to individuals whom Immigration and Customs Enforcement does not detain at the time they are released from criminal custody.

Zachary D. Tripp, assistant to the U.S. solicitor general (Art Lien)

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Wednesday morning the justices got a rare opportunity to ponder basic principles of tort law, as they closed the October session with the argument in Air and Liquid Systems v. DeVries. The case involves equipment sold by various manufacturers (including petitioner Air and Liquid Systems) that was installed many years ago on Navy ships. The equipment depended on asbestos insulation, which was installed shortly after the equipment reached the ships, to regulate its temperature. There also were asbestos gaskets between the parts, which on some occasions came with the original equipment, but were frequently replaced during the use of the equipment. The plaintiffs are a group of sailors (including respondent John DeVries) injured by the asbestos used with the equipment. This particular dispute is limited to injuries that cannot be attributed to any asbestos that the manufacturers supplied; all the relevant asbestos was applied to the equipment by third parties after the Navy acquired it.

Because the injuries in question occurred at sea, the liability of the manufacturers cannot be determined under the law of any particular state. Rather, it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The case comes to the justices after the lower court found that the manufacturers could be liable because the injuries were foreseeable. Arguing on behalf of the manufacturers, Shay Dvoretsky contended that the justices should adopt a bright-line “bare-metal” rule, absolving the manufacturers from liability for any asbestos that they did not themselves make, sell or distribute.

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