Analysis

It is very hard to maintain one’s composure, let alone salvage one’s legal argument, when an appearance before the Supreme Court begins this way: A Justice remarks, as soon as the lawyer begins speaking, that the case is not about what the lawyer is about to argue, that the lawyer is guilty of “bait and switch,” and that maybe the Court should appoint someone else to argue the real issue.

That’s the way it began on Monday for the deputy city attorney of San Francisco, Christine Van Aken, as she finished her first words, “Mr. Chief Justice, and may it please the Court.”  Justice Antonin Scalia quickly interrupted her, telling her that, “Before you go further,” he was having some problems squaring the city’s merits brief with what the Court thought it had agreed to hear in City and County of San Francisco v. Sheehan.

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Analysis

From the moment that a state lawyer stood up in the Supreme Court to argue that messages on license plates are government speech, it seemed that the Justices went forward for the rest of the hour assuming that it was not — at least not always.  A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.

The Court previously had made it absolutely clear that, if it is the government that speaks out on any issue, the First Amendment does not apply at all: it can say what it likes, and it can refuse to say what it opposes or even simply what it finds a bit unpleasant.  In other words, as speaker, it can act as total censor.

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Monday round-up

By on Mar 23, 2015 at 5:59 am

Today the Court returns for the March sitting and will hear oral arguments in two cases.  First up is Walker v. Texas Division, Sons of Confederate Veterans, the challenge to Texas’s specialty license-plate scheme. Lyle Denniston previewed the case for this blog; other coverage comes from Nina Totenberg of NPR, who also profiled the attorney arguing on behalf of the Sons of Confederate Veterans.  The second case is City and County of San Francisco v. Sheehan, in which the Court will consider the duties that the Americans with Disabilities Act imposes on police officers when they deal with people with mental disabilities.  Lyle Denniston previewed the case for this blog, with another preview coming from Leslie Shoebotham at Hamilton and Griffin on Rights. Continue reading »

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This week at the Court

By on Mar 22, 2015 at 12:01 am

On Monday the Court granted two new cases: Montgomery v. Louisiana (juvenile life without parole and retroactivity) and Direct TV v. Imburgia (preemption of state arbitration law). The Court called for the views of the Solicitor General in four related energy cases.

On Tuesday the Court issued opinions in B&B Hardware v. Hargis Industries and Omnicare v. Laborers Industry Pension FundOn Wednesday the Court issued opinions in Young v. United Parcel Service and Alabama Legislative Black Caucus v. Alabama.

This is the first week of the March sitting.

 
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At 11 a.m. on Monday, the Supreme Court will hold one hour of oral argument on the duties that federal law imposes on police officers in dealing with a mentally disabled person who may be armed and violent.  Arguing for the local government and two police officers in San Francisco v. Sheehan will be Deputy City Attorney Christine Van Aken, with twenty minutes of time.  Representing the federal government as an amicus partly supporting the city will be Deputy Solicitor General Ian H. Gershengorn, with ten minutes.  Teresa Sheehan, a San Francisco resident with a mental disability, will be represented by Leonard J. Feldman of the Seattle firm of Peterson Wampold Rosato Luna Knopp, with thirty minutes.  Only eight Justices will participate in the case; Justice Stephen G. Breyer is not taking part because his brother, U.S. District Judge Charles R. Breyer, was the trial judge in the case.

Background

Difficult issues of police policy and humane concern confront officers when they attempt to subdue a mentally disabled person whom they know is armed and has made threats.  Aside from immediate safety issues, both for themselves and the person whom they are attempting to subdue, the officers confront potential legal risks under the federal disability rights law, the Americans with Disabilities Act, and under the Constitution.

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Petition of the day

By on Mar 20, 2015 at 10:30 pm

The petition of the day is:

14-944

Issue: Whether, in articulating several specific grounds for vacating an arbitral award in Section 10 of the Federal Arbitration Act, Congress barred courts from vacating arbitral awards on any other ground, including illegality of the underlying contract as construed by the arbitrators.

At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on the power of states to control the messages displayed on speciality license plates for cars and trucks.  In Walker v. Sons of Confederate Veterans, a Texas state agency will be represented by the state’s solicitor general, Scott A. Keller of Austin, with thirty minutes of time.  Arguing for a group denied permission for a license plate design bearing a Confederate flag will be R. James George, Jr., of the Austin law firm of George Brothers Kincaid & Horton LLP, also with thirty minutes.

Background

If a state is forbidden by the Constitution to dictate the message that private citizens must put on their license plates, is it also forbidden to veto a message that citizens would prefer?   That has been a lingering First Amendment question for nearly four decades, but the Supreme Court now seems prepared to answer it.  The answer depends, simply, on  whether the voice of the license plate is that of the government, or of the motorist.

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Friday round-up

By on Mar 20, 2015 at 6:12 am

In her column for The New York Times, Linda Greenhouse urges the Court to grant review in Frank v. Walker, the challenge to Wisconsin’s voter identification law, which the Justices will consider at their Conference today.  At his Election Law Blog, Rick Hasen discusses the absence of an amicus brief from the federal government at the cert. stage.  Continue reading »

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Petition of the day

By on Mar 19, 2015 at 10:18 pm

The petition of the day is:

14-534

Issue: (1) Whether, in a federal criminal case in which the defendant has introduced and the trial court has admitted evidence of good character under Federal Rule of Evidence 404(a)(2)(A), the trial court should instruct the jury that character evidence alone may create a reasonable doubt; and (2) whether testimony directly supporting a criminal defendant’s theory that he lacked a motive to commit the offense with which he is charged may be excluded under Federal Rule of Evidence 403 as unfairly prejudicial to the prosecution merely because it might also tend to establish a fact that the prosecution had already proven.

 
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At its Conference on March 20, 2015, the Court will consider petitions seeking review of issues such as the legality of Wisconsin’s voter ID law, a court’s denial of a criminal defendant’s constitutional right to testify, and a “policy” or “custom” of Brady v. Maryland violations by the district attorney in Orleans Parish.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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