Monday round-up

By on Jan 9, 2017 at 6:53 am

Today the court will hear oral argument in two cases. First up is Nelson v. Colorado, a due process challenge to Colorado’s requirement that defendants whose convictions are later reversed must prove their innocence before receiving refunds of monetary penalties. Steve Vladeck previewed the case for this blog. Andrew Maury and Nicholas Velonis also provide a preview for Cornell’s Legal Information Institute. Another look at the briefing in the case comes from Garrett Epps in The Atlantic, who suggests that “Colorado’s main argument seems to be written between the lines”: “May it please the Court, their brief whispers, these two may have escaped justice on a technicality, but we all know they are guilty as hell”; he hopes this “thoroughly unappealing advocacy” “will not sway four of the eight.”
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This week at the court

By on Jan 8, 2017 at 12:01 pm

The court issued additional orders from its January 6 conference on Monday. It issued a summary opinion in White v. Pauly and called for the views of the solicitor general in four cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the January sitting is available on the court’s website. On Friday the justices met for their January 13 conference; that afternoon the court granted sixteen new cases for a total of thirteen hours of argument. The order list is here.

 
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Petition of the day

By on Jan 6, 2017 at 11:28 pm

The petition of the day is:

16-610

Issue: Whether the U.S. Court of Appeals for the 9th Circuit’s exceedingly permissive standard improperly allows the U.S. Fish and Wildlife Service to designate huge geographic areas as “critical habitat” under the Endangered Species Act when much of the designated area fails to meet the statutory criteria.

Friday round-up

By on Jan 6, 2017 at 6:43 am

At Bloomberg, Greg Stohr reports that Chief Justice John Roberts has recused himself from Life Technologies Corp. v. Promega Corp., a patent case argued in December, “after belatedly discovering that his stock holdings had created a possible conflict of interest”; each justice “has his or her own system for checking for conflicts,” Stohr notes, but critics “say the approach isn’t adequate.” Amy Howe covers the recusal for this blog. Additional coverage comes from Lawrence Hurley at Reuters.

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Petition of the day

By on Jan 5, 2017 at 11:25 pm

The petition of the day is:

16-452

Issue: Whether a district court’s decision that a person of “ordinary firmness” would have declined to speak in light of the government’s adverse action is reviewed on appeal solely for clear error, as the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits hold, or de novo, as the U.S. Courts of Appeals for the 1st, 9th, 10th, 11th, and District of Columbia Circuits hold.

 
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In 2011, Brian and Michelle Lewis were rear-ended by William Clarke on a highway in Connecticut. The Lewises sued Clarke in Connecticut court. This seems like an easy case. The Connecticut courts have subject-matter jurisdiction over accidents that happen in Connecticut, and have personal jurisdiction over Clarke, a Connecticut resident. Without more, the case is a straightforward state tort suit for damages.

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But the Supreme Court doesn’t take cases like that, so there must be a complication. It turns out Clarke was on the job at the time, and he was working not for a private business but for another sovereign. This is not an insurmountable hurdle for Connecticut courts looking for subject-matter jurisdiction. Although sovereigns, such as states, can assert immunity from suits in federal court, they cannot do so in the courts of other states. In 1979, in Nevada v. Hall, an employee of the state of Nevada allegedly harmed the plaintiffs in an auto accident in California. The court held that California courts could hear the case, applying California law. If Clarke worked for Rhode Island, then, the case would still be easy. An employee of Rhode Island acting within his official capacity or otherwise is subject to the jurisdiction of Connecticut courts for accidents taking place in Connecticut.

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Thursday round-up

By on Jan 5, 2017 at 7:27 am

At Roll Call, Bridget Bowman reports that Senate Minority Leader Chuck Schumer has said he “is preparing to block President-elect Donald Trump’s Supreme Court nominee if he or she is not in the ‘mainstream.’” Additional coverage of Schumer’s comments comes from Sophia Tesfaye at Salon, who observes that “Schumer’s play is likely meant to pressure Trump into selecting a moderate.” Commentary comes from Kent Scheidegger at Crime and Consequences, who maintains that “any genuine originalist will swiftly be declared ‘out of the mainstream’ by Senator Schumer, the New York Times, and the usual suspects.” In The New Yorker, Jeffrey Toobin observes that once Trump announces his nominee, “we’ll know within just a few hours whether there is any chance that the Senate will reject his choice,” “because the politics of Supreme Court appointments operates at the speed of the modern news media, not at the stately pace of the Justices’ deliberations.”

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Petition of the day

By on Jan 4, 2017 at 11:19 pm

The petition of the day is:

16-589

Issue: Whether a state rule that excludes as irrelevant evidence that a capital defendant is unlikely to pose a risk of future violence in prison is contrary to or an unreasonable application of this court’s precedent under the Eighth Amendment and due process clause.

 
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The issue of the conflicts created by the justices’ stock ownership came to the forefront again today, with the announcement that Chief Justice John Roberts would no longer participate in a patent case argued on December 6. In a letter to the attorneys in Life Technologies Corp. v. Promega Corp., court clerk Scott Harris wrote that Roberts had learned that the petitioner in the case, Life Technologies, was owned by Thermo Fisher Scientific – a company in which Roberts holds 1212 shares.

Federal law requires the justices to recuse themselves if they or a close family member has a financial interest in a case; the justices follow their own procedures to detect possible conflicts. Today’s letter indicated that “the ordinary conflict check conducted in the Chief Justice’s chambers inadvertently failed to find this potential conflict,” without providing any additional details. However, the petition for review that Life Technologies filed in June 2015 did note, in the corporate disclosure statement required by the court’s rules, that Life Technologies is “an indirect wholly-owned subsidiary of Thermo Fisher Scientific.” The company’s brief on the merits, filed in September 2016, also disclosed that relationship. Continue reading »

The Individuals with Disabilities Education Act gives federal funds to states that agree to offer a “free appropriate public education” (FAPE) to children with disabilities. An important part of providing a FAPE is the IEP, or individualized education program, which – among other things – must set forth a plan that is tailored to the unique needs of each child with a disability. In 1982, the Supreme Court ruled in Board of Education v. Rowley that an IEP must be “reasonably calculated to enable the child to receive educational benefits.”

Next week, the court will hear oral argument in the case of a Colorado boy who has asked the justices to clarify exactly what kind of “educational benefits” an IEP must provide: Is it enough that the benefit is simply non-trivial, or does the IDEA require more? The boy and his family argue that a greater benefit is required, and that a ruling to the contrary will directly affect the quality of the education that is offered to millions of children with disabilities. But the school district where the boy attended school counters that imposing the kind of specific standard proposed by the boy and his family will create its own set of difficulties, including entangling courts in complicated inquiries that they are not qualified to undertake.

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Photo by the school district

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