Argument transcripts

By on Nov 7, 2018 at 2:25 pm

The transcript of oral argument in Republic of Sudan v. Harrison is available on the Supreme Court’s website; the transcript in Culbertson v. Berryhill is also available.

 

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The Supreme Court heard oral argument today in a lawsuit alleging that the Republic of Sudan provided support to the al Qaeda terrorists who bombed the USS Cole in 2000, killing 17 sailors and injuring 42 others. The question before the court was not whether Sudan can be held liable; a federal court has already entered a default judgment of over $300 million against it. Instead, the justices are considering a threshold question: whether the plaintiffs in the case – the victims and their families – gave the Sudanese government proper notice of their lawsuit when they sent their complaint to the Sudanese embassy in Washington, D.C. After an hour of debate today, the outcome was hard to predict: Although the justices seemed at first to be leaning toward a ruling for Sudan, it was less clear at the end of the argument how they are likely to rule.

Christopher M. Curran for petitioner (Art Lien)

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It wasn’t until the very end of her rebuttal time in BNSF Railway Company v. Loos on Tuesday morning that BNSF Railway’s counsel, Lisa Blatt, finally mentioned the dreaded C-word. “I hate to cite it, but I will end with Chevron,” Blatt told the justices. “I mean, [the respondent] has to win under the plain language for you to affirm.”

Chevron,” of course, refers to Chevron U.S.A. v. Natural Resources Defense Council, the 1984 case that held that federal courts should defer to an agency’s reasonable interpretation of an ambiguous statute that it administers. It’s a decision that has emerged as a lightning rod for criticism in recent years — including from the justices themselves. Justice Clarence Thomas has written that “Chevron deference raises serious separation-of-powers questions”; Justice Neil Gorsuch has suggested that the Chevron is “a judge-made doctrine for the abdication of judicial duty”; and Justice Brett Kavanaugh has expressed his own doubts about Chevron deference. There do not appear to be five votes to jettison Chevron just yet, but yesterday’s argument augurs a fate that is, in some ways, even worse: Sophisticated litigants may simply ignore Chevron even if the justices do not formally overrule the decision.

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Reschedule Watch

By on Nov 7, 2018 at 11:46 am

John Elwood reviews Monday’s relists.

If you’re reading a blog post that is entirely devoted to cases on the Supreme Court’s docket that haven’t even been granted yet, chances are you’re a law nerd. Thus, I will go ahead and make the heroic assumption that if you’re reading this, you already know about the six relisted cases the court agreed on Friday to review. I will likewise assume that you already know that the court denied review outright in the seven “net neutrality” relists – although you may not yet appreciate that in doing so, the court adopted the position advanced by just two lonely attorneys against legions of lawyers (including the “Tenth Justice”) advocating either Munsingwear vacatur or plenary review. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the respondents in this case.] That is all noteworthy, but we at Relist Watch like to go even more obscure. As I said, we like our shadow docket shadowy.

Thus, we will begin Relist Watch the same improbable way we did last week: talking not about relisted cases but rescheduled ones. What’s the difference? When the Supreme Court reschedules a case, that case is moved on the court’s docket from one of the justices’ private conferences to the next one before the justices even have the opportunity to discuss it. By contrast, a relisted case is moved from one conference to the next after they have discussed it. I’ve linked dockets of a rescheduled case and a relisted case so you can see how both work.

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Wednesday round-up

By on Nov 7, 2018 at 7:31 am

This morning the Supreme Court will wrap up its November session with two oral arguments. The first case today is Republic of Sudan v. Harrison, which involves service of process on foreign governments under the Foreign Sovereign Immunities Act. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Kathryn Adamson and Sarah Evans have a preview at Cornell Law School’s Legal Information Institute. This morning’s second case is Culbertson v. Berryhill, which asks whether a statutory cap on attorney’s fees in Social Security benefit cases is limited to fees incurred in representing a client before the agency or also applies to representation in court. Kathryn Moore previewed the case for this blog; Ushin Hong and Russell Mendelson have Cornell’s preview.

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It looks like we’ll have to wait a little longer than expected to find out what the justices think about “cy pres” class-action settlements: On Tuesday afternoon the justices called for additional briefing in Frank v. Gaos, a case argued last week in which the Supreme Court could address the propriety of those settlements. As I explained in my preview, a “cy pres” settlement is a common device in class actions that award trivial sums to a large class of plaintiffs. Specifically, when the costs of identifying class members and distributing proceeds make it difficult to identify all the plaintiffs, courts commonly distribute all or a portion of the settlement proceeds to some public-interest recipient thought to serve the interests of the plaintiffs in the class action. The court granted review in this case to consider the propriety of those arrangements.

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Argument transcripts

By on Nov 6, 2018 at 3:09 pm

The transcript of oral argument in Bucklew v. Precythe is available on the Supreme Court’s website; the transcript in BNSF Railway Company v. Loos is also available.

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Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service’s ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon’s attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not other federal agencies — from exercising authority over waters in park units in Alaska.

This is the second time the justices have had to wrestle with a section of ANILCA entitled “maps,” situated within a title that specifies Congress’ purposes, provides definitions and addresses boundary maps and land management status. Section 103(c) — a veritable Rubik’s Cube of legislative drafting — provides that lands conveyed to the state, native corporations or private parties are not subject to “regulations applicable solely to public lands” within Alaska conservation system units. According to Findley, this provision immunizes 18 million acres of nonpublic lands and waters from what he calls “extraterritorial” regulation by the Park Service.

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The first opinion of the term is here, and it is unanimous: The Age Discrimination in Employment Act applies to all public employers, including those with fewer than 20 employees. This is a win for two firefighters, John Guido and Dennis Rankin, who may now pursue their discrimination case against the Mount Lemmon Fire District.

The case turned on the ADEA’s definition of “employer”:

a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. … The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States.

Justice Ginsburg with opinion in Mount Lemmon Fire District v. Guido (Art Lien)

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The Supreme Court heard oral argument this morning in the case of Russell Bucklew, who was scheduled to die by lethal injection earlier this year. The court has already rejected several broad challenges to the constitutionality of lethal injection as a method of execution, but the justices put Bucklew’s execution on hold back in March so that they could consider his argument that executing him by lethal injection would violate the Constitution’s ban on cruel and unusual punishment because, as a result of a rare medical condition, he is likely to undergo a “gruesome” and “excruciating” death even if the execution goes as planned. The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew.

Robert Hochman for petitioner (Art Lien)

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