Tuesday round-up

By on May 9, 2017 at 6:33 am

Briefly:

  • At Empirical SCOTUS, Adam Feldman examines the attorneys, law firms and interest groups that have argued cases or filed amicus briefs at the court this term, concluding that although “there is no lack of participation in Supreme Court litigation, there are some attorneys and firms that are involved far more than others,” and that most “of these repeat players are not new to the Court and have been recognized as Supreme Court regulars for years.”
  • In an op-ed at CNN, Elizabeth Wydra remarks on recent rumors that Justice Anthony Kennedy may be contemplating retirement, warning that “any nominee to replace Justice Kennedy would be intent on demolishing the key pillars of his legacy.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on May 8, 2017 at 11:23 pm

The petition of the day is:

16-1063

Issues: (1) Whether the government violated the petitioners’ Fifth Amendment rights by using their post-arrest, pre-Miranda v. Arizona-warnings silence as substantive evidence of their guilt in the government’s case-in-chief; and (2) whether the Maritime Drug Law Enforcement Act may constitutionally be applied in a foreign-bounded case involving the foreign transport of drugs to foreign shores by foreign residents on a foreign vessel, without a sufficient nexus to the United States.

The U.S. Court of Appeals for the 4th Circuit heard oral argument today in a challenge to the executive order signed by President Donald Trump on March 6. Citing the need to “protect the Nation from terrorist activities,” the order temporarily suspended new visas for travelers from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – as well as the admission of refugees into the United States. The March 6 order replaced a January 27 order that stalled in the federal courts, but a federal trial judge in Maryland put the new order on hold as well, leading to today’s appeal by the federal government. Lawyers representing the federal government and the challengers faced tough questions from virtually all of the 13 judges who participated in today’s hearing. When Chief Judge Roger Gregory finally gaveled the hearing to a close after more than two hours of argument, the challengers had reason to be optimistic, although the appeals court is likely to be sharply divided.

The plaintiffs in the case allege that even though the revised executive order does not say so specifically, it was still intended to discriminate against Muslims – as evidenced by Trump’s statements during his campaign and after his election. But a central issue in today’s hearing was whether the court of appeals should consider those statements at all. And the two sides were, as Judge Robert King told Omar Jadwat, who argued on behalf of the challengers, “like ships in the night.”

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Monday round-up

By on May 8, 2017 at 7:05 am

Briefly:

  • At his eponymous blog, Lyle Denniston reports that two “major new appeals to the Supreme Court, raising fundamental issues about the government’s power to use Guantanamo military courts to try war crimes, have been bogged down for weeks in difficulties over getting security clearance for documents in one of the cases,” but have now appeared on the court’s docket.
  • At BuzzFeed News, Zoe Tillman reports that “[f]ive people who disrupted proceedings at the US Supreme Court to protest the Citizens United decision pleaded guilty on Thursday to two misdemeanor charges, one month after losing a constitutional challenge to part of the case.”
  • In The Atlantic, James Hamblin observes that McWilliams v. Dunn, in which the court will decide whether a defendant in a capital case whose mental health was at issue was entitled to assistance from a psychiatrist independent of the prosecution, raises the question whether “mental health [is] to be understood and approached in the same way as other areas of medicine.”

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This week at the court

By on May 7, 2017 at 12:01 pm

On Thursday the justices met for their May 11 conference; our list of “petitions to watch” for that conference is available here.

 
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Petition of the day

By on May 5, 2017 at 11:23 pm

The petition of the day is:

16-1087

Issues: (1) Whether the burden of proof concerning the reasons for pretrial delay rests (a) with the state, to show that the reasons for delay were justified, as eleven circuits and many state courts of last resort have held; or (b) with the defendant, to show that the reasons for delay were unjustified, as the court below held; and (2) whether a defendant who was incarcerated during a nearly-nine-year pretrial delay must also produce “affirmative proof of prejudice” for Barker v. Wingo‘s prejudice factor to weigh in his favor.

Friday round-up

By on May 5, 2017 at 7:10 am

Briefly:

  • At BuzzFeed News, Chris Geidner reports on the court’s decision this week to send Alabama death-row inmate Taurus Carroll’s case back to the state court “’for further review in light of Moore v. Texas,’” which involves the standards for assessing intellectual disability in capital cases; he notes that although “the justices gave no reason for their decision on Monday (and no justices noted their disagreement with the order), the move does shift the issue — and Carroll’s case — back to the state’s courts, where Alabama judges will have to decide how much of an effect, if any, Moore should have on Alabama’s methods of determining intellectual disability.”
  •  In The Economist, Steven Mazie asks whether, with “Neil Gorsuch now in Antonin Scalia’s old chair and retirement rumours flying about Anthony Kennedy, the 80-year-old perennial swing justice,” “Chief Justice Roberts [could] be emerging as the court’s new median vote,” noting that although a “wider look at … Roberts’s record does not suggest even-handedness,” “in one of the most politicised eras of the Supreme Court’s history, the chief seems keen to tamp down public perceptions that the court, too, is bitterly partisan.”

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Petition of the day

By on May 4, 2017 at 11:23 pm

The petition of the day is:

16-1053

Issues: (1) Whether a judge or jury should decide the fact-intensive question of whether government retaliation is severe enough to deter a person of “ordinary firmness” from continuing to engage in conduct that is protected by the First Amendment; and (2) whether a heightened standard of proof applies when the government retaliates against a citizen through speech, even when the government acts to deter a citizen from petitioning it for a redress of grievances and the individual suffers severe economic injury because of the retaliation.

Thursday round-up

By on May 4, 2017 at 7:24 am

Briefly:

  • At the Associated Press, Mark Sherman reports that “Justice Anthony Kennedy is so far refusing to comment on speculation that he may soon retire after 29 years on the court”; Sherman notes that although there are “few outward signs that Kennedy is getting ready to retire,” an earlier-than-usual law-clerk reunion scheduled for June “first fueled speculation that Kennedy is considering retirement,” and “several former law clerks said they would not be surprised to see the justice retire in 2018,” if not this year.
  • In an op-ed in Forbes, Nick Sibilla weighs in on the court’s decision in Nelson v. Colorado, which held that a state cannot require a defendant whose conviction is invalidated to prove actual innocence before recovering fines and fees imposed as a consequence of the conviction, observing that the ruling “may set an important precedent to rein in another abusive civil proceeding: civil forfeiture.”
  • In The Atlantic, Matt Ford views Maslenjak v. United States, which asks whether a naturalized U.S. citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement, against the backdrop of recent Republican “proposals that would erode citizenship’s inseparability,” which “are largely quiescent for the moment” but “could still return to the national conversation, whether as part of Trump’s continued efforts to restrict immigration or in sudden response to the next terrorist attack,” noting that Maslenjak may give the justices “an opportunity to reaffirm citizenship’s standing in American civic life.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

By on May 3, 2017 at 11:23 pm

The petition of the day is:

16-1034

Issues: (1) Whether the equal protection analysis in ballot-access cases, including Anderson v. Celebrezze and Burdick v. Takushi, incorporates a non-discrimination principle, separate and apart from the Anderson-Burdick burden analysis, as held by the U.S. Courts of Appeals for the 2nd, 3rd, 10th and 11th Circuits, or whether the Anderson-Burdick burden analysis is the sole test for ballot access, as held by the U.S. Court of Appeals for the 6th Circuit here; (2) whether a minor party must show its “exclusion or virtual exclusion” from the ballot to demonstrate a “severe burden” under Anderson-Burdick before strict scrutiny analysis is triggered, or whether a demonstration of significant roadblocks that extend beyond the merely inconvenient, as suggested by Justice Scalia and the U.S. Court of Appeals for the 7th Circuit, are sufficient to trigger a “severe burden” and strict scrutiny analysis; and (3) whether the “flexible analysis” framework of Anderson-Burdick allows a ballot-access scheme that significantly impairs minor parties, when less burdensome alternatives exist but are not employed, as held by the 6th Circuit, or whether, under a “flexible analysis” requires the least burdensome alternative that meets legitimate state interests, as held by the 2nd and 11th Circuits.

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