Court grants review in three new cases

By on Nov 13, 2017 at 11:21 am

This morning the justices issued orders from last week’s conference. They added three new cases to their merits docket for the term, including two high-profile First Amendment cases, and they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan.

In the first of today’s grants, National Institute of Family and Life Advocates v. Becerra, the justices agreed to weigh in on a challenge by “crisis pregnancy centers” – nonprofits that try to steer pregnant women away from having abortions – to a California law that requires the centers to convey specific messages. The law mandates that nonprofits that are licensed to provide medical services post notices to inform their patients that free or low-cost abortions are available and to provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. The groups that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear – in up to 13 languages – that their services do not include medical help.

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The Supreme Court’s November sitting might be finished, but we’re still going. Ian returns to wrap up by recapping last week’s arguments with Dan. But first, there’s the matter of a very unusual certiorari petition that the Department of Justice filed in a hot-button case that involves both abortion and undocumented immigrants. Even more exciting, we review the first opinions of the still young term. We then stumble blindly through the argument recap in Merit Management Group v. FTI Consulting without the help of our bankruptcy expert. We also recap the argument in the fascinating separation-of-powers case Patchak v. Zinke, learning along the way that Chief Justice John Roberts does occasionally have some use for law professors. And as always, we offer our fearless First Mondays forecasts.

Monday round-up

By on Nov 13, 2017 at 6:58 am

At the Associated Press, Mark Sherman reports that the Supreme Court “is making new legal filings available online starting [today], years behind the rest of the federal court system.” For The Washington Post, Robert Barnes reports that the court “is developing its own online system, rather than being part of PACER, which serves the other federal courts.”

At (subscription or registration required), Marcia Coyle reports that “[t]he U.S. Justice Department’s request that the Supreme Court consider sanctions against lawyers who advocated for an immigrant teenager at the center of an abortion case [, Hargan v. Garza,] has raised questions about the government’s motivation and threatened to jeopardize the reputation of the solicitor’s office before the justices.” In an op-ed at The Hill, David Luban argues that “[t]he irony is that filing frivolous accusations with the Supreme Court is itself an ethics violation — and DOJ’s accusations against Jane Doe’s lawyers come perilously close to crossing that line.” At The Faculty Lounge, Steve Lubet suggests that “when the government characterizes its own position as ‘at least arguably’ valid, that seems to be at least an admission of weakness, or perhaps an even greater concession.”

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Posted in Round-up

This week at the court

By on Nov 12, 2017 at 12:00 pm

The Supreme Court released orders from the November 9 conference on Monday. The justices added three cases to their merits docket: National Institute of Family and Life Advocates v. Becerra, Lozman v. City of Riviera Beach and Minnesota Voters Alliance v. Mansky. They will meet next for their November 21 conference; our “petitions to watch” for this conference are available at this link. The calendar for the December sitting, which begins on November 27, is available on the Supreme Court’s website.


The fate of a high-profile challenge to the prolonged detention of immigrants facing deportation without a bond hearing appeared less certain tonight, with the announcement – made over a month after oral argument – that Justice Elena Kagan would no longer participate in the case. In a letter sent to lawyers for the two sides in Jennings v. Rodriguez, Scott Harris – the clerk of the Supreme Court – indicated that Kagan had learned only today that “while serving as Solicitor General, she authorized the filing of a pleading in an earlier phase” of the case.   Continue reading »

Petition of the day

By on Nov 10, 2017 at 4:44 pm

The petition of the day is:


Issues: (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit’s requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.

Petitions of the day

By on Nov 9, 2017 at 5:16 pm

The petitions of the day is:


Issue: Whether the time period for a federal employee to seek review from the U.S. Court of Appeals for the Federal Circuit of a final order of the Merit Systems Protection Board is jurisdictional and therefore cannot be equitably tolled under any circumstances.


Issue: Whether the time period for a federal employee to seek review from the U.S. Court of Appeals for the Federal Circuit of a final order of the Merit Systems Protection Board is jurisdictional and therefore cannot be equitably tolled under any circumstances.

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

Thursday round-up

By on Nov 9, 2017 at 6:58 am

Yesterday the Supreme Court issued its first full opinion of the October 2017 term, in Hamer v. Neighborhood Housing Services of Chicago, holding that a time limit in a court-made rule is not jurisdictional. Howard Wasserman analyzes the argument for this blog. Subscript offers a graphic explainer for the decision.

At Balkinization, Marty Lederman takes a close look at last week’s cert petition in Hargan v. Garza, in which the solicitor general asked the justices to vacate a lower-court decision in favor of a pregnant undocumented teen who was attempting to obtain an abortion and to discipline the teen’s attorneys, concluding that “there are serious questions whether the brief meets the high standards that OSG and DOJ have long insisted upon and that the Court has come to expect from the federal government.” In an op-ed for The New York Times, Linda Greenhouse argues that in its “breathtakingly audacious” petition, “the government itself [is] claiming a right not to follow the law.”

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It took less than one month and 10 slip-opinion pages for a unanimous Supreme Court to decide in Hamer v. Neighborhood Housing Services of Chicago that a rule of appellate procedure limiting the length of an extension for filing a notice of appeal is not a jurisdictional rule requiring dismissal of the appeal if the time limit is exceeded, but a “mandatory claim-processing rule” that can be waived or forfeited. Because Congress controls the jurisdiction of federal courts, only Congress can limit jurisdiction, including through regulations governing the time for filing an appeal. Justice Ruth Bader Ginsburg announced a rule of decision “both clear and easy to apply: If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; otherwise, the time specification fits within the claim-processing category.” The U.S. Court of Appeals for the 7th Circuit therefore erred in dismissing Charmaine Hamer’s appeal, although seemingly untimely under a rule of appellate procedure, for lack of jurisdiction and without considering whether the defendants had forfeited the timeliness argument.

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