Editor's Note :

Editor's Note :

On Monday morning the court hears oral argument in Lucia v. Securities and Exchange Commission. Ronald Mann has our preview.
On Monday morning the court also hears oral argument in Pereira v. Sessions. Jennifer Chacon has our preview.
On Monday afternoon the court hears oral argument in Chavez-Meza v. United States. Susan Klein has our preview.

Briefly Mentioned :

Briefly Noted :

The Supreme Court will release orders from the April 20 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday at 10 a.m.

In yesterday’s oral argument in Washington v. United States, the Supreme Court debated the scope of tribal fishing rights under 19th century treaties between the United States and northwest Indian tribes. In particular, were the lower courts correct that hundreds of the state of Washington’s under-road culverts, which obstruct salmon passage to some extent, violate the treaties? The dispute is a long-running one — so much so that it dates back to Justice Anthony Kennedy’s service on the U.S. Court of Appeals for the 9th Circuit, prompting his recusal from the case.

The eight justices who did participate in the argument focused largely on the correct standard for violations of the treaties. (As I explained in my argument preview, the case also presented two other questions related to remedies, but these were scarcely discussed.) The state of Washington, represented at the podium by the state’s solicitor general, Noah Purcell, argued that the state would violate the treaties if “a state barrier is causing a large decline in a particular river and … it’s not justified by substantial compelling interests.” In contrast, the federal government and the tribes, represented by Allon Kedem and William Jay, respectively, argued that the treaties are violated by a “substantial degradation” of the salmon population. For much of the argument, the justices pressed each of the litigants to provide more clarity about their respective tests.

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Thursday round-up

By on Apr 19, 2018 at 7:26 am

For the Tribune News Service (via Governing), Bob Egelko reports on Sessions v. Dimaya, in which the court ruled on Tuesday that a portion of the criminal-removal provision in the Immigration and Nationality Act is unconstitutionally vague. At Slate, Mark Joseph Stern observes that Dimaya “marked the first time Justice Ruth Bader Ginsburg assigned a majority opinion in her nearly 25 years on the high court.” At Reason’s Volokh Conspiracy blog, Jonathan Adler notes that Justice Neil Gorsuch’s separate opinion concurring in part and concurring in the judgment, “and Justice Thomas’ dissent, are the opening salvos in what promises to be an interesting intra-originalist debate over the proper scope and application of the ‘void for vagueness’ doctrine, and the extent to which this doctrine is part of an originalist understanding of Due Process.” At The Daily Caller, Kevin Daley explains that “[t]hough the particulars of this case dictated a progressive result, [Gorsuch’s] rationale emanates from conservative legal theories that, if applied, would dramatically circumscribe the growing power of federal bureaucrats.” At The New Republic, Matt Ford remarks that Gorsuch’s vote to strike down the provision was “the answer [the administration] should’ve expected when Trump promised to put another Scalia on the court.” The editorial board of The Wall Street Journal agrees that “[t]hough … Gorsuch joined the four liberals on an immigration case, his logic would have made the late Justice proud.” At the Harvard Law Review Blog, Leah Litman observes that “[t]he impact of the Dimaya decision is potentially enormous,” and cautions that “[w]hether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review.” At the Sentencing Law and Policy Blog, Douglas Berman notes that “it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.”

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Petition of the day

By on Apr 18, 2018 at 10:33 pm

The petition of the day is:

17-1272

Issue: Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

The Supreme Court showed no great interest in the bankruptcy problem at the heart of Lamar, Archer & Cofrin, LLP v. Appling, in which the court heard argument yesterday. From the beginning, the justices asked relatively few questions of either party. Those they did ask did not appear to go well for Lamar, Archer & Cofrin, a law firm seeking to recover a debt from R. Scott Appling, a less-than-honest former client. When the justices finally perked up later in the session, they seemed largely interested in trying to figure out exactly how broadly to rule in favor of Appling.

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Every year the lawyer research and ranking company Chambers & Partners puts out a list of top appellate lawyers and firms. (In a previous post, I looked at some of the listed firms’ cert performance.) Chambers uses a mix of qualitative and quantitative methodology to come up with its various lists. Because its group of top appellate lawyers presumably made the cut based on their prowess in appellate law generally, this list is far from Supreme Court specific. In fact, as most lawyers are aware, appellate practice traditionally is based in federal and state courts of appeal and often has little to do with Supreme Court practice. Since the Supreme Court is not necessarily the principal court of practice for this group of attorneys, I thought it would be interesting to see how involved the group of 66 attorneys in Chambers’ list of top appellate lawyers have recently been in Supreme Court litigation. To do this I looked at several measures of participation for the previous and current Supreme Court terms.

Many of the 66 attorneys in Chambers’ list of top appellate lawyers were involved in multiple cases across the 2016 and 2017 Supreme Court terms. In fact, when we look at their total participation in terms of merits and amicus briefs that name them as counsel, we have 282 briefs, or an average of 4.27 briefs per attorney. This measure is quite skewed, because the top participating attorneys were involved in well over five cases during this period and the least involved attorneys were involved in few to no cases in the Supreme Court. Just comparing the 2016 and 2017 terms, these attorneys are slightly more involved in cases this term than last.

Click graph to enlarge.

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Argument transcripts

By on Apr 18, 2018 at 2:18 pm

The Supreme Court has posted transcripts of today’s oral arguments:

Lagos v. United States (case page at this link)

Washington v. United States (case page at this link)

 

 

Posted in Merits Cases
 
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When a state prisoner seeks to challenge his conviction through a federal habeas petition, the Antiterrorism and Effective Death Penalty Act of 1996 requires the federal courts to defer to the state court’s resolution of claims “adjudicated on the merits.” But what happens when the last state-court decision in the prisoner’s case is a summary appellate ruling, with no explanation for why the lower-court ruling rejecting the prisoner’s claim was affirmed? In its 6-3 ruling yesterday in Wilson v. Sellers, the Supreme Court clarified that, in such circumstances, “the federal court should ‘look through’ the unexplained decision to the last related state-court decision that does provide a relevant rationale,” and presume that the unexplained decision adopted the same rationale. But even in reaffirming such a “presumption,” the Supreme Court emphasized that a state can rebut that presumption if it can show “that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision.” Thus, Wilson’s true significance will likely depend upon how easily states are able to make such a demonstration going forward.

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Since October, the Supreme Court has heard oral argument in two major redistricting battles, involving allegations of partisan gerrymandering in Wisconsin and Maryland. When the justices take the bench next Tuesday, they will hear oral argument in a third redistricting dispute, this time involving allegations that Texas lawmakers drew federal congressional and state legislative districts that harmed some of the state’s black and Hispanic residents.

The tale of the two cases known as Abbott v. Perez is a long and complicated one. It began in 2011, when Texas’ Republican-controlled legislature began redistricting in the wake of the 2010 census, which indicated that Texas had gained over four million new residents, who were predominantly minorities; that population growth meant that the state would get four new seats in the U.S. House of Representatives.

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Wednesday round-up

By on Apr 18, 2018 at 7:08 am

There are two cases on the court’s argument docket this morning. The first is Washington v. United States, in which the justices will consider the scope of tribal fishing rights. Miriam Seifter previewed the case for this blog. Jonathan Kim and Eugene Temchenko have a preview at Cornell Law School’s Legal Information Institute. Subscript offers a graphic explainer for the case. At E&E News, Amanda Reilly reports that the tribes around Puget Sound are asking the “justices to uphold a 2013 court injunction ordering the state to fix hundreds of culverts that are blocking salmon from accessing upstream habitat.”

Today’s second argument is in Lagos v. United States, which asks whether private investigation costs and a victim’s attorney’s fees are considered compensable losses under the Mandatory Victim Restitution Act. Cortney Lollar had this blog’s preview. Frederick Titcomb and Vadim Belinsky preview the case for Cornell. Subscript’s graphic explainer is here.

Yesterday the justices issued three opinions. In Sessions v. Dimaya, they ruled 5-4 that a portion of the criminal-removal provision in the Immigration and Nationality Act is unconstitutionally vague. Kevin Johnson analyzes the opinion for this blog. Subscript has a graphic explainer. For the Associated Press, Jessica Gresko reports that the decision “concerns a catchall provision of immigration law that defines what makes a crime violent,” noting that “[c]onviction for a crime of violence makes deportation ‘a virtual certainty’ for an immigrant, no matter how long he has lived in the United States.” At CNN, Ariane de Vogue and Tal Kopan report that the case “had originated during the Obama administration but had been closely watched to see if the justices would reveal how they will consider the Trump administration’s overall push to both limit immigration and increase deportations.” Additional coverage comes from Jess Bravin and Brent Kendall for The Wall Street Journal, Nina Totenberg and Domenico Montanaro at NPR, Robert Barnes for The Washington Post, Andrew Chung at Reuters, Richard Wolf at USA Today, David Savage for the Los Angeles Times, Kevin Daley at the Daily Caller, Josh Gerstein at Politico, Bill Mears at Fox News, and Lydia Wheeler and Luis Sanchez at The Hill, who report that Justice Neil “Gorsuch sided with court’s four liberal justices in favor of the immigrant.”

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Anyone who thought that just because one member of the Supreme Court had invited a test case about whether to overrule Quill Corp. v. North Dakota meant that every justice was prepared to do so quickly got a reality check this morning.

In South Dakota v. Wayfair Inc., the court is considering whether to overrule Quill, a 1992 decision that the Constitution’s commerce clause prohibits the states from requiring out-of-state retailers that do not have a physical presence in the state to collect tax on sales to state residents.

South Dakota Attorney General Marty Jackley explained why he believed the court should reconsider the older ruling.

South Dakota Attorney General Marty J. Jackley (Art Lien)

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