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Friday round-up

By on Dec 7, 2018 at 7:00 am

Amy Howe analyzes yesterday’s argument in Gamble v. United States, which asks whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause that allows a defendant to be prosecuted for the same crime in both federal and state court, for this blog, in a post that was first published at Howe on the Court. At Fox News, Bill Mears reports that “[t]he justices raised tough questions Thursday about being tried twice for the same crime in different jurisdictions – ‘a double whammy,’ as Justice Ruth Bader Ginsburg put it – yet a majority seemed inclined to preserve what the Trump administration calls 170 years of precedent allowing an exception to the double jeopardy provision.” At The Daily Caller, Kevin Daley reports that “[t]he case is carefully followed in Washington because of its potential ramifications for special counsel Robert Mueller’s investigation.” But Adam Liptak reports for The New York Times that “the justices gave no indications on Thursday that they were focused on such issues.” Additional coverage of the argument comes from Nina Totenberg at NPR, Ariane de Vogue at CNN, Mark Sherman at AP, Lawrence Hurley at Reuters, Jess Bravin for The Wall Street Journal, Richard Wolf for USA Today, and Robert Barnes for The Washington Post.

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When Terance Gamble was pulled over by police in Alabama three years ago for having a faulty headlight, he probably didn’t think that prosecutors would make a federal case out of it. And he certainly wouldn’t have imagined that his case would make national headlines – not so much for its own sake, but because of what a win for Gamble might mean for prosecutions arising from Special Counsel Robert Mueller’s investigation into possible Russian interference in the 2016 election. Both of these things did happen, but after nearly 80 minutes of oral argument this morning, Gamble seemed unlikely to prevail on his argument that the federal charges against him violate the Constitution’s double jeopardy clause, which would in turn preserve the ability of state prosecutors to bring charges against defendants in the Mueller investigation even if they receive pardons from President Donald Trump for any federal charges brought against them.

Louis A. Chaiten at lectern for petitioner (Art Lien)

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Argument transcript

By on Dec 6, 2018 at 1:32 pm

The transcript of oral argument in Gamble v. United States is available on the Supreme Court’s website.

 

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On Tuesday, the Supreme Court heard argument in an important Social Security Disability Insurance case, Biestek v. Berryhill. At issue was whether the Social Security Administration may ground a decision to deny benefits on the opinion of a vocational expert who refuses to disclose the data on which that opinion relies. Under the regulations, once a claimant has demonstrated that a severe impairment prevents her or him from returning to past relevant work, the agency must show that jobs exist in substantial numbers in the regional or national economy that the claimant can perform. The vocational expert’s opinion is crucial to the agency’s carrying its burden of proof.

Vocational experts testify in response to hypothetical questions posed by administrative law judges. The judge will ask the vocational expert whether the claimant can perform any jobs if the judge finds that the claimant has a particular set of limitations. The vocational expert, commonly a professional staff member from an employment agency, will testify based on a combination of public data compiled by various federal agencies and the expert’s own experience. Claimants’ counsel has access to the federal data, but what the expert says about her or his direct experience placing job-seekers typically is dispositive in a case.

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Thursday round-up

By on Dec 6, 2018 at 7:20 am

This morning the Supreme Court rounds out its December sitting with an oral argument in Gamble v. United States, which asks whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause that allows a defendant to be prosecuted for the same crime in both federal and state court. Amy Howe had this blog’s preview, which was first published at Howe on the Court. Garion Liberti and Tayler Woelcke preview the case at Cornell Law School’s Legal Information Institute. Nina Totenberg reports for NPR that “[t]he case has attracted extra attention because of President Trump’s comments that he could possibly pardon his onetime campaign chairman Paul Manafort and other Trump associates who have been — or could be — convicted in prosecutions brought by [Special Counsel Robert] Mueller.” At Bloomberg Law, Jordan Rubin reports that “the extent to which a decision in Gamble’s favor would actually benefit any Trump associates is far from certain.” Additional coverage comes from Steven Mazie at The Economist’s Democracy in America blog and Bill Lucia at Route Fifty.

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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In the past few days, the federal government has filed a bevy of briefs expressing the views of the United States on issues ranging from the interpretation of the Foreign Sovereign Immunities Act to California’s ban on foie gras. The justices often pay close attention to the government’s recommendations; if they follow that practice here, they are not likely to add many new cases from this batch to their docket, because the government recommended that the Supreme Court grant review in just one case, involving the sweep of federal immigration law.

In Kansas v. Garcia, the state asked the justices to review a decision by the Kansas Supreme Court that reversed Ramiro Garcia’s conviction for identity theft after he used someone else’s Social Security number. The Kansas Supreme Court ruled that the state’s prosecution was superseded by the Immigration Reform and Control Act, a federal law that bars employers from knowingly employing undocumented immigrants.

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Relist Watch

By on Dec 5, 2018 at 11:54 am

John Elwood reviews Monday’s relists.

With just one conference left in 2018, all is quiet on the Supreme Court’s shadow docket. Scarcely a creature has been stirring among the returning relists, which – with one exception – have been nestled snug in their beds for at least five relists each and thus are past the point where the statistics would say they’re prime candidates for a grant. (Sure, there are exceptions. But they are just that – exceptions.) And the serial rescheduled cases also appear to have settled their brains for a long winter’s nap. If the Supreme Court doesn’t act on these cases Monday, we won’t be hearing anything about them for almost a month. We will have to try to be patient.

We’ve made a list, and checked it twice – after emptying the cache and refreshing the page to make sure the docket pages we’re staring at aren’t out of date. Four new cases join the relist rolls. But what they make up for in quantity, they lack in interest. I kid! These cases are each interesting, but they’re not the kinds of cases that make for a blockbuster term, unless you have a very different idea than me about what a “blockbuster” is.

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Wednesday round-up

By on Dec 5, 2018 at 7:44 am

Ronald Mann has this blog’s argument analysis in Helsinn Healthcare v. Teva Pharmaceuticals, in which the justices considered yesterday whether the “on sale” bar to the patentability of an invention is triggered by a sale in which the purchaser is required to keep the details of the invention confidential. At Law360 (subscription required), Matthew Butman reports that the justices “wrestled with the idea that the America Invents Act may have narrowed the on-sale bar in patent cases, while leaving open the door for a possible exception to the bar for activities that aren’t commercial sales.”

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Now that the justices have had a few days to consider last week’s oral argument in Carpenter v Murphy, it appears that they are looking for creative ways to resolve the dispute. As explained in my earlier posts, the case as presented to the Supreme Court asked whether the reservation previously afforded the Creek Nation remained in place after Oklahoma’s statehood more than a century ago. The premise of the briefing was that if that reservation remained in place, then it would constitute “Indian country” within which Oklahoma would have no jurisdiction to prosecute criminal offenses committed by members of the tribe, such as capital-murder defendant Patrick Murphy.

This afternoon the justices asked for briefing from the parties, the United States as amicus curiae supporting Oklahoma, and the Muscogee (Creek) Nation, as amicus curiae supporting Murphy, on two questions that seem to suggest a search for a new way to resolve the controversy. The first is whether there is any statute that might authorize Oklahoma prosecutions “irrespective of the area’s reservation status.” If Oklahoma has such authority, then the disruption from recognizing the reservations as still in existence would be much less.

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This morning’s argument in Helsinn v. Teva Pharmaceuticals brought the justices their first patent case of the year. As expected, this argument included little of the technical concerns that so often dominate patent cases.  This case comes to the court as a simple and confined question of statutory language, and the argument suggested that the court will resolve it from that perspective.

The dispute involves provisions of the Patent Act that “bar” an inventor from obtaining a patent if the inventor publicizes the invention or exploits it commercially before filing an application with the patent office. In one form or another, those provisions have been a part of American patent law since the early 19th century, and for much of that time the provisions have barred a patent if the invention previously was “on sale,” at least if the sale occurred more than a year before the patent application. Congress revised the relevant provisions in 2011 when it adopted the Leahy-Smith America Invents Act (universally known as the AIA).

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