The October sitting has ended—and we’re here to wrap it up for you. On this episode, we begin by discussing the biggest news of the month: our new microphones, brought to you courtesy of our Patreon supporters. We also break down the December argument calendar (warrantless location tracking, cake-as-speech, federalism, and gambling) as well as the court’s long-awaited disposition of the travel-ban case.

We’re also joined this week by Nina Totenberg, who talked with us about how the first month looked from her (very nice) seat in the courtroom. Justice Gorsuch’s manner at oral argument: discussed. The reaction of the “reasonable party-goer” to marijuana: discussed. The extent to which the background of the court’s members creates a pro- or anti-“corporate” tilt: also discussed.

Last week, the court heard oral argument in Jesner v. Arab Bank, PLC, a major case about human-rights litigation and the Alien Tort Statute, and we discuss how the argument went in some detail. The court also heard argument in a case about the extent to which a time limit in a rule of appellate procedure is jurisdictional, and (ever on-brand) we discuss that case in nearly equal detail. Finally, we wrap things up with some listener hotline calls, including one about what liberals put on their steak.

Monday round-up

By on Oct 16, 2017 at 7:27 am

At Just Security, William Dodge discusses last week’s oral argument in Jesner v. Arab Bank, in which the justices considered whether corporations are liable under the Alien Tort Statute, explaining that “the Justices seemed to be looking at the question in two steps: (1) whether customary international law permits corporate liability; and (2) assuming it does, whether the ATS cause of action should be interpreted to permit corporate liability.” Another look at the argument in Jesner comes from Kenneth Jost at Jost on Justice, who concludes that “[s]even years after giving corporations a First Amendment right to unlimited spending in election campaigns, the Roberts Court appears ready to give corporations a free pass for serious human rights violations committed abroad.”

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This week at the court

By on Oct 15, 2017 at 12:00 pm

On Monday, the Supreme Court released orders from the October 13 conference. The court added four new cases to its merits docket: United States v. Microsoft Corp., Ohio v. American Express Co., Currier v. Virginia and Dahda v. United States. The justices will meet next for their October 27 conference. The calendar for the November sitting, which begins on October 30, is available on the Supreme Court’s website.

 
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Petition of the day

By on Oct 13, 2017 at 8:20 pm

The petition of the day is:

17-424

Issue: Whether the Supreme Court of Texas correctly decided that Obergefell v. Hodges and Pavan v. Smith “did not hold that states must provide the same publicly funded benefits to all married persons,” regardless of whether their marriages are same-sex or opposite-sex.

Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

Posted in Merits Cases
 
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Friday round-up

By on Oct 13, 2017 at 7:09 am

On Wednesday the justices heard oral argument in National Association of Manufacturers v. Department of Defense, which will determine the venue for challenges to Clean Water Act rules. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Miriam Seifter has this blog’s argument analysis. John Siciliano covers the argument for the Washington Examiner.

At The Economist’s Democracy in America blog, Steven Mazie discusses the court’s dismissal as moot last week of one of two challenges to President Donald Trump’s March 6 travel ban, noting that “[a]s one set of battles over Mr Trump’s appetite for banning Muslim people from America’s shores fizzles out, another is set to begin.” At The Atlantic, Garrett Epps suggests that even though the administration’s “third travel-ban order may very likely be upheld” in the Supreme Court, the first two bans “and the government’s inept efforts to defend [them] have permanently damaged this administration’s legal credibility.”

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Petition of the day

By on Oct 12, 2017 at 8:20 pm

The petition of the day is:

17-418

Issues: (1) Whether the Environmental Protection Agency’s Water Transfers Rule conflicts with the plain meaning of the Clear Water Act by concluding that a water transfer’s introduction of pollutants to a navigable water body is not an “addition of any pollutant to navigable waters” within the meaning of the Act; and (2) whether the EPA may justify the Water Transfers Rule on the basis of perceived costs and benefits caused by the Act’s permitting process, when it expressly declined to conduct any actual assessment of the costs or benefits of permitting.

Relist Watch (UPDATED)

By on Oct 12, 2017 at 12:19 pm

[Editor’s note: This post has been updated to include two additional relists, Oliver v. Florida and Tharpe v. Sellers.]

John Elwood reviews Tuesday’s relists.

If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is weird – it is a time when you can no longer count on basic things you took for granted.

But at least (cue obvious segue) we can count on one thing: The Supreme Court will relist a mess of new cases just as you’re trying to prepare for oral argument. This week is no exception: By my count, we have a whopping 11 new relists (to say nothing – and I do intend to say nothing – of five returning relists). And these are not small cases. For example, a case with a caption like United States v. Microsoft Corporation, 17-2, just sounds epic. And an epic case it is, presenting the issue of whether Microsoft must comply with a probable-cause-based warrant for email records that the company maintains in Ireland. The U.S. Court of Appeals for the 2nd Circuit concluded that Microsoft was not required to comply with the warrant, and Uncle Sam seeks to challenge that conclusion. The petition is also the rare relist that involves a case for which there is not – at least so far as I have found – a square circuit split on the narrow question presented. The case thus is seeking a position on the docket with Carpenter v. United States16-402, as a case so important that the Supreme Court takes it even in the absence of a square split.

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In its conference of October 13, 2017, the court will consider petitions involving issues such as whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction; whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment; and whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising

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The scope of the federal government’s regulatory authority under the Clean Water Act has long been controversial. Stretch it too far, and it appears that the federal government can regulate every puddle in the nation; narrow it too much, and the government is left unable to protect the quality of interconnected waters. For that reason, each time the government has promulgated a rule defining the act’s geographic scope — as it did in the 2015 “Clean Water Rule” — lawsuits quickly follow. In yesterday’s argument in National Association of Manufacturers v. Department of Defense, the Supreme Court considered the preliminary question of whether those lawsuits should be filed in district courts or courts of appeals.

Rachel P. Kovner, assistant to the U.S. solicitor general (Art Lien)

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