Editor's Note :

Editor's Note :

On Monday we expect the Court to issue orders from the June 23 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. We will begin live-blogging at 9 a.m.

Tuesday round-up

By on Jun 21, 2016 at 9:52 am

Yesterday was a busy day at the Court, with orders from last week’s conference and opinions in five argued cases.  Molly Runkle rounded up early coverage and commentary for this blog. In Utah v. Strieff, the Court ruled that that methamphetamines and drug paraphernalia found in a search conducted after a Utah man had been arrested could be used against him even though the warrant for his arrest was discovered as the result of an illegal stop.  Additional coverage comes from NPR’s Nina Totenberg, with commentary from Orin Kerr for this blog, Matt Ford for The Atlantic, Steven Mazie of The Economist, and Kent Scheidegger at Crime and Consequences. Continue reading »

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Petition of the day

By on Jun 20, 2016 at 11:25 pm

The petition of the day is:

15-1412

Issue: Whether the decision in Walker v. Texas Division, Sons of Confederate Veterans, Inc. allows the government to place an imprimatur on private advertising and thereby render the advertisement government speech, stripping it of all First Amendment protection.

The Court’s docket this year did not have as many big-name patent cases as most Terms in recent years. Cuozzo Speed Technologies v. Lee was by far the most important patent case of the year. Surprisingly, for a Term winding down with a series of non-decisions, the Court’s resolution of that case today brought certainty to a major new process of patent review by validating the principal decisions that the Patent and Trademark Office made in setting up that process.

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The Court’s opinion in Encino Motorcars v. Navarro repeats an increasingly familiar pattern for the shorthanded Justices: a consensus of the middle around a disposition that gets the case off the docket without actually answering the question that warranted the Court’s attention in the first instance. [Am I the only one who thinks it is remarkable that the two Justices most in agreement this Term, at least accordingly to SCOTUSblog statistics, are Justices Elena Kagan and Anthony Kennedy, agreeing in a stunning ninety-seven percent of the cases?]

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Utah v. Strieff is a significant win for the police. It goes a long way toward creating an exception to the exclusionary rule for searches of persons who have outstanding warrants (which turns out to be a lot of people). At the same time, it’s perhaps less of a win than the police might have enjoyed if Justice Antonin Scalia were still on the Court.

I. Wong Sun lives, at least as formal doctrine

I want to start with a big-picture doctrine point. This case is the Supreme Court’s first decision on the Fourth Amendment exclusionary rule in five years. As I explained in my argument preview, the exclusionary rule has been in tremendous flux before this case. A big question lurking in the case was whether the Court would adopt preexisting exclusionary rule doctrine or use this case to announce new limits on the suppression remedy.

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In a brief nine-page decision today in Taylor v. United States, which seven of the eight Justices found “dictated by … precedent,” Justice Samuel Alito wrote for the Court that “a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the state” necessarily satisfies the “affects commerce” element of the federal Hobbs Act criminal statute. Thus proof that a defendant “targeted a marijuana dealer’s drugs or illegal proceeds” suffices – without any further proof of interstate effect in the particular case – to prove that element “beyond reasonable doubt.” Justice Clarence Thomas dissented alone, largely reprising his 2005 dissent in Gonzales v. Raich (which upheld federal regulation of intrastate marijuana possession and sale). He also accused the Court of “failing to hold the Government to its burden to prove [every element of a criminal offense] beyond reasonable doubt” under In re Winship. Finally, although the late Justice Antonin Scalia’s vote would apparently not have made a difference in this case (although Justice Scalia could sometimes be surprisingly persuasive), one can imagine he might have written on at least the “proof beyond a reasonable doubt” point.
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This morning the Court released opinions in five cases. In Utah v. Strieff, the Court ruled that that methamphetamines and drug paraphernalia found in a search conducted after a Utah man had been arrested could be used against him even though the warrant for his arrest was discovered as the result of an illegal stop.  Early coverage comes from Tal Kopan of CNN, Adam Liptak of The New York Times, Richard Wolf of USA Today, Robert Barnes of The Washington Post, David G. Savage of the Los Angeles Times, the Associated Press, Chris Geidner of BuzzFeed, Debra Cassens Weiss of ABA Journal, David Smith of The Guardian, and Cristian Farias of Huffington Post.

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Today the Supreme Court may have written the final chapter in the European Community’s sixteen-year-old battle against tobacco giant RJR Nabisco. The Justices unanimously agreed with the European Community and twenty-six of its member states that the federal Racketeering Influenced and Corrupt Practices Act, a 1970 law originally enacted to target organized crime, can in some circumstances apply to conduct that occurs outside the United States – for example, the European Community’s allegations that RJR was part of an international money-laundering scheme that included foreign drug traffickers and the sale of cigarettes to Iraq. But that victory proved to be illusory for the EC, as the Court also ruled that a private plaintiff (unlike the government bringing a criminal prosecution) must show an injury within the United States, which the EC has not done.

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With stories abounding that the Court is “lurching” towards the conclusion of this most unusual term, we enter this morning with a lucky thirteen merits decisions still outstanding. The Justices will make a dent in that number today.

The signs that we’re now well into the late stages of the term are popping up everywhere. The television networks have their opinion “runners” stationed in the hallway outside the Public Information Office. These are the young people, often college interns clad in business attire but with athletic shoes, who whisk opinions from PIO out to the correspondents doing standups on the sidewalk.

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For the second time in two years, the Supreme Court on Monday assigned itself the task of clarifying the president’s power to fill government posts — even as the Court awaits a nominee to join its own ranks.  The new case — like one in 2014 — involves the staffing of the National Labor Relations Board.  At issue this time is when the president may name someone to perform a high-level federal office in an “acting” capacity, affecting many posts throughout the bureaucracy.

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