Argument transcripts

By on Feb 21, 2018 at 3:54 pm

The transcript in Rosales-Mireles v. United States is available on the Supreme Court’s website; the transcript in Dahda v. United States is also available.


Posted in Merits Cases

On November 15, 2006, Fane Lozman rose to speak during the public-comments portion of a regular public meeting of the City Council of Riviera Beach, Florida. What followed was anything but a run-of-the-mill discussion about the intricacies of local government. To the contrary, when Lozman began to talk about “corrupt local politician[s],” he was cut off by a councilperson and asked to cease that line of commentary. When Lozman refused to comply, he was arrested, handcuffed and removed from the meeting.

In February 2008, Lozman filed a Section 1983 suit against Riviera Beach in the U.S. District Court for the Southern District of Florida. He alleged, among other things, that his arrest constituted retaliation for First-Amendment–protected activity. Specifically, Lozman charged that his arrest amounted to payback for two categories of protected expression: his then-pending lawsuit against the city under Florida’s Sunshine Act, and his extensive public criticisms of city officials and policies, including and preceding his remarks on November 15.

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The Supreme Court ruled today that U.S. victims of a 1997 terrorist attack in Jerusalem cannot rely on a provision of the Foreign Sovereign Immunities Act to seize a collection of Iranian antiquities held by the University of Chicago. The decision put an end to the latest efforts by the victims and their families to recover some of the $71.5 million default judgment entered by a federal court in Washington, D.C., against Iran for that country’s role in providing support for Hamas, the terrorist group that carried out the bombing.

The dispute before the Supreme Court centered on the interpretation of the FSIA, which carves out several narrow exceptions to the general rule that a foreign state and its “agencies and instrumentalities” (organizations or companies owned by the foreign state) cannot be sued in U.S. courts. Even if (as here) a lawsuit is allowed to go forward, the foreign country’s property cannot normally used to satisfy a judgment against it. Nor – again, subject to some exceptions – can the judgment be executed against the foreign state’s agencies or instrumentalities, on the theory that they are separate entities.

Justice Sotomayor with opinion in Rubin v. Islamic Republic of Iran (Art Lien)

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My preview of City of Hays, Kansas v. Vogt described the case as “deceptively complex.” Some of the difficulties in the case seem to have come into focus only (as Justice Stephen Breyer candidly put it) “suddenly … for the first time” at yesterday’s oral argument. The Question Presented is whether, in a Section 1983 civil suit for damages, allegations that a defendant was compelled to make incriminating statements that were later used against him in a criminal preliminary hearing (and not at a trial) state a violation of the Fifth Amendment. After exploring some of the complexities (from opposite perspectives), Justices Samuel Alito and Sonia Sotomayor found themselves in agreement: They both perceived the case as “very odd.”

Indeed, halfway through the hour, Breyer suggested that the case now “raises the question whether this is, in fact, an appropriate case … for the Court to take.” Vogt’s attorney embraced the implication: “[I]f the Court wanted to DIG the case … we would certainly not object.” (“DIG” is Supreme Court shorthand for “Dismiss as Improvidently Granted,” simply un-granting the petition for certiorari and dismissing the case without any opinion on the merits.) Although Chief Justice John Roberts appeared to object, telling the attorney that “it’s a question you have been presented with,” the uncertain doctrinal implications of any ruling, along with problems with the record that were recognized at oral argument, could support a “DIG” result here.

Justice Breyer questions respondent’s lawyer, Kelsi B. Corkran (Art Lien)

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During yesterday’s oral argument in Currier v. Virginia, Justice Stephen Breyer stated what most constitutional scholars know about double jeopardy: “It’s complicated.” The argument reflected this complexity, with seven justices focusing on different branches of the double jeopardy protection and on different aspects of the case.

In brief, Michael Currier was charged with three crimes stemming from a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny, and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had briefly possessed the guns in the safe during his participation in the break-in. A Virginia court rule permits a felon-in-possession charge to be severed before trial with the agreement of the defendant, and, under Virginia Supreme Court precedent, felon-in-possession charges must be severed absent agreement of both parties to joinder. Accordingly, the state moved to sever the felon-in-possession charge and Currier agreed.

Erica L. Ross, assistant to the U.S. solicitor general

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[Editor’s note: An earlier version  of this post ran on February 5, as an introduction to this blog’s symposium on United States v. Microsoft Corp., as well as at Howe on the Court, where it was originally published.]

In 1986, when Congress passed the Stored Communications Act, the World Wide Web did not yet exist; that would not happen until three years later, when British scientist Tim Berners-Lee invented it in Switzerland. Electronic mail did exist, but – although Queen Elizabeth II had used it to send a message in 1976 – it was nowhere near as ubiquitous as it would later become. The SCA gives the government, if it obtains a warrant, the power to require an email provider to turn over the contents of emails. Next week the justices will consider a question that Congress likely didn’t think about 32 years ago: Is an email provider located in the United States required to turn over emails that it is storing overseas?

The case now before the Supreme Court began in December 2013, when the federal government applied for a warrant that would require computer giant Microsoft to turn over information for an email account that the government believed was being used for drug trafficking in or into the United States. When the warrant was served on Microsoft at its Washington state headquarters, the company agreed to provide records that were stored in the United States, including the email customer’s electronic address book. Citing a presumption that U.S. law does not generally apply outside the country, however, it refused to provide the contents of the emails, which were stored in Ireland. After the U.S. Court of Appeals for the 2nd Circuit ruled for Microsoft, the Supreme Court agreed last year to weigh in.

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We live-blogged as the Supreme Court released opinions. The transcript is available at this link.

Posted in Live

Wednesday round-up

By on Feb 21, 2018 at 6:33 am

This morning the court hears oral argument in two criminal-procedure cases. The first is Rosales-Mireles v. United States, which asks when erroneous applications of the U.S. Sentencing Guidelines should be corrected on plain-error review. Evan Lee previewed the case for this blog. Robin Grieff and Hillary Rich provide a preview at Cornell Law School’s Legal Information Institute. Counting to 5 (podcast) also previews the case, while Subscript provides a graphic explainer.

Today’s second case is Dahda v. United States, in which the justices will consider how broadly to read a statute requiring the suppression of evidence obtained under a wiretap order that exceeds a judge’s territorial jurisdiction. Richard Re had this blog’s preview. Axel Schamis and Katherine Van Bramer preview the case for Cornell; Counting to 5 (podcast) also offers a preview. Subscript’s graphic explainer is here.

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Posted in Round-up

Petition of the day

By on Feb 20, 2018 at 5:58 pm

The petition of the day is:


Issue: Whether, when the Supreme Court held in Graham v. Florida that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide,” states can bypass that rule by sentencing a juvenile offender who did not commit homicide to a term-of-years sentence under which he will die in prison, because he will not be eligible for parole until he is 112 years old.


The court has returned from its nearly four-week midwinter recess, one marked by a number of extracurricular orders, an even bigger number of public appearances by Justice Ruth Bader Ginsburg, and a smaller number of public appearances by other justices.

Presumably, some work has gotten done, because the court has announced the possibility of opinions on Wednesday, which would add to the whopping four merits opinions that have come down so far.

We are not up in the courtroom for the first argument this morning, as we and many other reporters are still down in the pressroom dealing with today’s large orders list.

But when the justices take the bench, Chief Justice John Roberts has an announcement.

“Before we begin today, I would like to note that last Sunday, February 18, marked the 30th anniversary of the day our colleague Justice Kennedy took the judicial and constitutional oaths as a new member of this court. …”

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