In its conference of January 12, 2018, the court will consider petitions involving issues such as whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause; whether the Endangered Species Act authorizes the federal government to designate as critical habitat private land that is unsuitable as habitat and has no connection with a protected species; whether the Supreme Court should abrogate Quill Corp. v. North Dakota’s sales-tax-only, physical-presence requirement; and whether partisan gerrymandering claims are justiciable.

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Thursday round-up

By on Jan 11, 2018 at 7:33 am

Yesterday the court heard argument in Husted v. A. Philip Randolph Institute, in which the justices will decide whether Ohio’s voter-roll-maintenance process violates federal voter-registration laws. Amy Howe has this blog’s argument analysis, which first appeared at Howe on the Court. For The Wall Street Journal, Jess Bravin reports that the justices “appeared divided” and that “[t]wo justices close to the court’s ideological center, Anthony Kennedy and Stephen Breyer, appeared most interested in the pragmatic implications of protecting voting rights while updating voter rolls.” Additional coverage of the argument comes from Kevin Daley at The Daily Caller, David Savage for the Los Angeles Times, Ariane de Vogue at CNN, Robert Barnes for The Washington Post, Stephen Dinan for The Washington Times, Adam Liptak for The New York Times and Richard Wolf for USA Today. Commentary on the case comes from Garrett Epps at The Atlantic, who notes that “the majority, whichever way it decides, will be making a (perhaps unconscious) judgment about which of the two aims [of the laws at issue in the case]—participation by the eligible or exclusion of the ineligible—is more urgent, both generally and now.”

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Relist Watch

By on Jan 10, 2018 at 5:17 pm

John Elwood reviews Monday’s relists.

Here it is the second week of 2018, and I’m still writing “Infrastructure Week” on my checks. The justices’ New Year’s resolution evidently involved granting more cases, because after a fall that was fairly light on relists, we now have too many riches: 18 first-time relists, plus three returning veterans. That’s not quite as amazing as it sounds, because eight of those fall into three groups of related cases. The second conference in January is traditionally heavy on relists — last year’s had 27, yielding 16 grants and 13-ish hours of argument. If that pace of grants seems a little lumpy to you, there are reasons for that. First, there is almost a month between conferences from mid-December until early January, so a lot of petitions build up. Second, the second January conference is the traditional cutoff for granting cases that can still be argued that term without expedited briefing. And, relatedly, the solicitor general times the filing of court-invited amicus briefs for the January cutoff, so that category of cases that is statistically likely to yield grants (and thus relists) is over-represented at this conference. (The second, and usually bigger, swell of solicitor general amicus briefs arrives in time for the June cutoff for grant decisions to be made before the court recesses for the summer.)

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Petition of the day

By on Jan 10, 2018 at 5:17 pm

The petition of the day is:

17-878

Issue: Whether the Arizona Supreme Court erred when it held that a biology-based paternity statute violates the Fourteenth Amendment and the Supreme Court’s decisions in Obergefell v. Hodges and Pavan v. Smith.

The Supreme Court heard oral argument today in a challenge to a practice that Ohio uses to maintain its voter-registration lists. Under Ohio law, a voter who does not vote for two years is sent a notice, which asks him to confirm that he is still eligible to vote. If the voter does not return the notice and does not vote for the next four years, he is removed from the voter lists. The challengers argue that this practice violates federal law, which bars states from removing voters from their lists based on a failure to vote. Ohio counters that voters aren’t removed because they don’t vote; the removal only happens if they fail to respond to the notice that is mailed to them and then abstain from voting for four more years. Today the court’s more conservative justices seemed inclined to agree with the state – and could even pick up a sixth vote, from Justice Stephen Breyer.

Arguing on behalf of Ohio, state solicitor general Eric Murphy faced tough questions from some of the court’s more liberal justices. Justice Sonia Sotomayor focused on what she described as the “essence of this case.” Your position, she told Murphy, is that a failure to vote is enough evidence to suggest that someone has moved. But is that a reasonable conclusion to draw, she asked, when it has a disproportionate effect on areas with large groups of minorities, poor people and the homeless? These groups, she noted, tend to vote at lower rates than the rest of the population, “in large measure because many of them work long hours.” “How can we read this statute,” Sotomayor continued, “to permit you to begin a process of disenfranchising solely on the basis” of someone’s failure to vote, with no evidence that the voter has actually moved? “There are dozens of other ways” for the state to determine whether someone has moved, Sotomayor emphasized, ranging from the U.S. Postal Service to juror and driver changes of address. And I have to give the provision barring removal based on a failure to vote a meaning that avoids disenfranchising people, she concluded.

Eric E. Murphy, state solicitor for Ohio, at lectern arguing for petitioner (Art Lien)

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Argument transcript

By on Jan 10, 2018 at 1:45 pm

The transcript in Husted v. A. Philip Randolph Institute is available on the Supreme Court’s website.

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If you had a sense of déjà vu when you saw Encino Motorcars v. Navarro on the January argument calendar, you had good reason: This is the second time up for this case, which considers whether the service advisors at automobile dealerships are exempt from the protections of the Fair Labor Standards Act. On its face, the case presents a simple question of statutory interpretation: whether a person holding one of those jobs falls within an FLSA exemption for any “salesman … primarily engaged in selling or servicing automobiles.” (I follow the odd though common description of the provision as an “exemption” – though it is excluding employees from a protection much more than it is exempting them from a burden.)

If that sounds tediously pedestrian, the background and context of the controversy make the dispute more intriguing. The baseline of the dispute was an early 1960’s provision of the FLSA that exempted all employees at automobile dealerships. Narrowing that provision – bringing some dealership employees under the FLSA – Congress in 1966 replaced the blanket exemption with a more tailored exemption limited to “any salesman, partsman, or mechanic” who is “primarily engaged in selling or servicing automobiles.”

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The Supreme Court spent the first hour of oral arguments yesterday debating the Fourth Amendment, privacy rights and rental cars. The Fourth Amendment was also the focus of the second hour, when the justices heard oral argument in Collins v. Virginia. In Collins, the question before the court was the scope of the “automobile exception” to the Fourth Amendment, which allows police to search a vehicle without a warrant if the vehicle is “readily mobile” and they have probable cause to believe that it contains evidence of a crime. When the oral argument ended, the justices seemed to find the rules proposed by both sides lacking, but with the more protective rule espoused by the defendant perhaps less imperfect.

The case arose when police were looking for a motorcyclist who had eluded their efforts to stop him by driving at speeds of well over 100 miles per hour. Officers went to the home where Ryan Collins spent several nights each week and saw the motorcycle parked under a white tarp in the driveway. Lifting the tarp allowed one of the officers to see the vehicle’s license plate and vehicle identification number, which in turn enabled him to determine that the motorcycle had been stolen. At his trial for possessing stolen goods, Collins argued that the evidence regarding the motorcycle could not be used against him because the officer had violated the Constitution when he searched the motorcycle in the driveway, but the lower courts rejected that contention.

Arguing on Collins’ behalf at oral argument yesterday, attorney Matthew Fitzgerald urged the justices to rule that the “automobile exception” does not apply when a vehicle is parked in the area surrounding the home, known as the “curtilage.”

Matthew A. Fitzgerald for petitioner (Art Lien)

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Wednesday round-up

By on Jan 10, 2018 at 7:28 am

This morning the Supreme Court will hear argument in Husted v. A. Philip Randolph Institute, in which the justices will consider whether Ohio’s voter-roll-maintenance process violates federal voter-registration laws. Amy Howe had this blog’s preview, which first appeared at Howe on the Court. Larry Blocho and Ryan Powers preview the case for Cornell Law School’s Legal Information Institute. Subscript offers a graphic explainer. For USA Today, Richard Wolf reports that “[g]roups representing racial and ethnic minorities, veterans, and people with disabilities have joined the opposition in what’s become the latest in a series of battles against states’ efforts to restrict voting rights and combat alleged voter fraud.” Additional coverage comes from Nina Totenberg at NPR and Steven Mazie at The Economist’s Espresso blog.

Yesterday the justices heard two Fourth Amendment cases, both involving searches of motor vehicles. For this blog, Mark Walsh offers an eyewitness account of the arguments. First on the agenda was Byrd v. United States, which asks whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental contract. Amy Howe analyzes the argument for this blog; her analysis was first published at Howe on the Court. For The New York Times, Adam Liptak reports that the justices “seemed inclined to rule that people not listed as authorized drivers on rental car agreements nonetheless have privacy rights when they are pulled over by the police.” Additional coverage comes from Ariane de Vogue at CNN.  Continue reading »

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The Fourth Amendment and vehicle searches dominated oral arguments at the Supreme Court today. First up was Byrd v. United States, in which the justices are considering whether the driver of a rental car who was not included as an authorized driver on the rental agreement, but had the renter’s permission to use the car, has a reasonable expectation of privacy in the car’s trunk, so that police could not search it without a warrant. After an hour of spirited discussion, the answer remains unclear.

The question before the justices came to the court in the case of Terrence Byrd, who was pulled over while driving on an interstate highway in Pennsylvania. When state troopers searched the rental car, they found a flak jacket and 49 bricks of heroin. Byrd argued that the evidence found in the trunk could not be used against him because the state troopers lacked probable cause to search the trunk. The lower courts disagreed, reasoning that Byrd could not have had a reasonable expectation of privacy in the car because he was not listed as an authorized driver on the rental agreement. Byrd pleaded guilty and was sentenced to 10 years in prison.

Robert M. Loeb for petitioner (Art Lien)

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