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Friday round-up

By on Dec 8, 2017 at 7:12 am

For The Washington Post, Robert Barnes reports that in “another dramatic reversal in a high-profile case before the high court,” the “Trump administration on Wednesday asked the Supreme Court to overrule a 40-year-old precedent that allows compelling public employees to pay some fees to unions that represent them, an important tool for the U.S. labor movement.” Additional coverage of the government’s amicus brief in Janus v. American Federation of State, County, and Municipal Employees, Council 31 comes from Lyle Denniston at his eponymous blog, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Marcia Coyle at Law.com, and Mark Walsh at Education Week’s School Law Blog. Ross Runkel discusses the brief at his eponymous blog.

On Wednesday the Supreme Court heard oral argument in two cases. The first was Murphy v. Smith, which asks who should pay attorney’s fees in successful civil-rights cases brought on behalf of prisoners. Charlotte Garden has this blog’s argument analysis. Wednesday’s second case was Marinello v. United States, in which the justices considered the limits of tax-law obstruction-of-justice charges. Susan Morse analyzes the argument for this blog.

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Petition of the day

By on Dec 7, 2017 at 6:18 pm

The petition of the day is:

17-696

Issue: Whether, upon obtaining general consent to search a bag or other area, law enforcement may, consistent with the Fourth Amendment, “pry open” or otherwise cause intentional damages to personal property found within that might reasonably hold the object of the search.

Marinello v. United States is a criminal tax case that presents a limiting-principle puzzle. It turns on the meaning of I.R.C. § 7212(a), which makes “corrup[t]” “obstruction” of “the due administration of this Title” a felony. The language is “ungodly broad,” as Justice Elena Kagan described it, because of, as Justice Neil Gorsuch suggested, the “pervasive, continuous, brooding” nature of tax administration. Throughout the argument, the justices pressed counsel for a limiting principle, in an animated discussion that saw participation from every justice save Justice Clarence Thomas. The taxpayer argued that the government is required to prove that the taxpayer had knowledge of a “pending proceeding” by the IRS, while the government maintained that proof of a “specific intent to obtain an unlawful benefit” is the appropriate prerequisite for an obstruction charge under this section. The justices appeared to favor an interpretation that falls somewhere in between.

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Despite signing both the Declaration of Independence and the Constitution and being one of six original justices appointed to the Supreme Court, James Wilson is not often thought of as a leading light among America’s founders. One explanation for this is that Wilson’s time on the Supreme Court was not especially noteworthy; only nine cases were heard during his tenure. In fact, Wilson may be best remembered for being the first and only Supreme Court justice to be jailed while on the court. He spent time in two separate debtor’s prisons in the late 18th century before dying in 1798 at the age of 55.

Professor William Ewald, in a lecture last week to the Supreme Court Historical Society, illuminated Wilson’s significant role in the drafting and modern understanding of the Constitution and Declaration of Independence. Justice Elena Kagan introduced Ewald after recounting how he was recommended to her by Elizabeth Warren, then a law professor at the University of Pennsylvania. Kagan came to realize that Ewald’s academic prowess proved “Senator Warren right, as she always is.” Realizing the implication of what she had said, Kagan quickly added, “in matters like that.”

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In Murphy v. Smith, the Supreme Court is charged with interpreting statutory language that on its face appears straightforward. In prisoners’ federal civil-rights cases that result in an award of money damages and attorney’s fees, the Prison Litigation Reform Act requires that “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant.” But that language turned out to be anything but simple, as evidenced by Justice Samuel Alito’s lament early in Wednesday’s argument that “I mean, this language can be read either way, and it’s very difficult.”

Here is the crux of the difficulty: Plaintiff Charles Murphy argues that the phrase “not to exceed 25 percent” grants district courts discretion to order that any amount, from a nominal sum up to a maximum of 25 percent of a prisoner’s award, be devoted to attorney’s fees. But the defendants, two prison guards, argue that the PLRA requires prisoners to pay attorney’s fees in full unless those fees exceed 25 percent of the damages award. That means that, in their view, prisoners must contribute toward attorney’s fees 25 percent of their money judgment or 100 percent of awarded attorney’s fees, whichever is less.

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Thursday round-up

By on Dec 7, 2017 at 7:23 am

Yesterday the Supreme Court heard oral argument in two cases. The first was Murphy v. Smith, which asks who should pay attorney’s fees in successful civil-rights cases brought on behalf of prisoners. Subscript has a graphic explainer for the case. Yesterday’s second case was Marinello v. United States, in which the justices considered the limits of tax-law obstruction-of-justice charges. For Law360 (subscription required), Vidya Kauri reports that at oral argument, “the debate largely focus[ed] on taxpayer intent to make the IRS’ job harder.” Subscript’s graphic explainer is here.

Tuesday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, continues to provide food for thought (and bad puns). NPR’s Nina Totenberg breaks down the legal issues in the case in a YouTube video. Bloomberg BNA’s US Law Week Blog offers video interviews in which advocates on both sides react to the argument. At Keen News Service, Lisa Keen observes that “the court’s transcript of the proceeding betrayed how unnervingly unpredictable the outcome of this dramatically important case is.”

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Petition of the day

By on Dec 6, 2017 at 6:18 pm

The petition of the day is:

17-670

Issue: Whether the Fifth Amendment’s protection from double jeopardy attaches when the court accepts a defendant’s guilty plea.

Argument transcripts

By on Dec 6, 2017 at 3:32 pm

The transcript in Murphy v. Smith is available on the Supreme Court’s website; the transcript in Marinello v. United States is also available.

 

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In its conference of December 8, 2017, the court will consider petitions involving issues such as whether  the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency; whether a court’s exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity, and Congress has not unequivocally abrogated it; and whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

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Today at 11 a.m. (available by live stream), the Heritage Foundation will review yesterday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Speakers will include one of the oral advocates, Kristen Waggoner, and two authors of amicus briefs in the case, Ilya Shapiro and Lloyd Cohen. Elizabeth Slattery will serve as moderator. The event, which will happen at the foundation’s Allison Auditorium in Washington, can be viewed online on the foundation’s website.

 
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