In its conference of November 22, 2016, the court will consider petitions involving issues such as whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; whether it is a violation of the Sixth Amendment guarantee of conflict-free counsel for a lawyer who previously prosecuted a defendant to represent that same defendant in a subsequent and related capital trial; and whether a state court violates a petitioner’s federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.
UPDATE: After this entry was posted, the court issued an order moving one of the two arguments that had been scheduled for Monday, November 28, Czyzewski v. Jevic Holding Corp., to fill the December 7 argument slot left vacant by this dismissal.
In a surprise order yesterday, the Supreme Court dismissed Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos, two cases in which Visa had asked the court to reject antitrust class actions challenging the fees credit card companies charge ATM operators for processing ATM withdrawals. The cases had been consolidated for argument on December 7. Although such orders usually offer no explanation for the court’s decision, this one went out of its way to explain that the court was dismissing the cases because of a shift in the basis of Visa’s challenge to the class actions.
Visa’s petitions for certiorari had alleged a direct conflict between the U.S. Court of Appeals for the D.C. Circuit and the U.S. Court of Appeals for the 9th Circuit over the question whether membership in a business association, standing alone, can amount to a conspiracy for purposes of Section 1 of the Sherman Act. In general, the argument was that allegations that individual banks had agreed to the network’s rules were inadequate to show an antitrust conspiracy among the banks themselves.
Yesterday, Justice Samuel Alito delivered the opening remarks at a Federalist Society convention honoring the late Justice Antonin Scalia. Andrew Hamm covered the event for this blog. Additional coverage comes from Lawrence Hurley at Reuters, who reports that Alito “laid out a possible agenda for the U.S. Supreme Court if it regains its conservative majority as expected after Donald Trump takes office, citing gun rights and religious freedom as among key issues it will tackle in the coming years.”
The petition of the day is:
Issues: (1) Whether a plaintiff is required to show that he or she was replaced by someone outside his or her protected group in order to establish a prima facie case of discriminatory termination; and (2) whether, where a claimant files a timely Title VII charge asserting that employer conduct was the result of a particular unlawful motive, the claimant may, after the end of the charge-filing period, amend that charge, or bring a civil action, asserting that the conduct was also the result of a second unlawful motive.
Speaking to the Federalist Society’s National Lawyers Convention shortly after Donald Trump’s election increased expectations that a conservative jurist would replace the late Justice Antonin Scalia, Justice Samuel Alito did not mention the election, the president-elect, the society’s reported role in shaping Trump’s list of potential nominees, the current eight-member court or a future conservative majority. Alito’s one reference to changes on the bench involved oral argument. In the 26 arguments since Scalia’s death, Alito said, “lawyers are beginning with confidence to talk about legislative history.” To laughter from an audience largely made up of current and former law students groomed on Scalia’s opinions, the justice reminisced about how Scalia used to pounce, like an exaggerated cartoon cat, on any inexperienced advocate who mentioned legislative history. “Was that legislative colloquy voted on by both houses of Congress and signed by the president?” Scalia would ask. As the mice have begun creeping out of their holes, Alito admitted with a touch of sentimentality, “I have reflexively looked to where Scalia sat” and felt “a palpable emptiness in the room.”
The Supreme Court’s days as an eight-member court may soon be drawing to a close. As the country awaits president-elect Donald Trump’s nominee for the vacancy, the sitting justices who participated in post-election speaking engagements faced questions about the election’s impact on the court.
In a November 15 appearance at the Hill Center in Washington, interviewer Bill Press asked Justice Sonia Sotomayor whether she felt apprehensive about last Tuesday’s result. “I’m going to demur from answering that question that way,” Sotomayor said cautiously. “I will answer it in a different way, which is – I think that this is the time where every good person has an obligation both to continue being heard and continue doing the right thing.” Sotomayor urged the audience not to give in to despair or to give up on “pursuing the values that we and others have fought so hard to achieve,” characterizing the situation as a “challenge we all have to face.”
For CNN, Ariane de Vogue reports that in an interview on Tuesday evening, Justice Sonia Sotomayor sidestepped a question about whether she was apprehensive about the results of last Tuesday’s election, stating that “’We can’t afford to despair.’” Molly Runkle covered the event for this blog. Additional coverage comes from Robert Barnes at The Washington Post, who reports that Sotomayor said she “looked forward to a nomination that will restore the court to full strength.” Post-election remarks also came from Justice Ruth Bader Ginsburg, who, as Robert Barnes reports in The Washington Post, “said the most immediate impact of last week’s election on the Supreme Court is that it will get a new ninth member.” In the ABA Journal, Debra Cassens Weiss also covers Ginsburg’s comments, noting that Ginsburg repeated her previous statement that “’Eight is not a good number.’”
The petition of the day is:
Issue: Whether the extender provision of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 displaces the three-year federal statute of repose in Section 13 of the Securities Act of 1933.
John Elwood reviews Monday’s relists.
It’s been another quiet week in Lake Swampbegone, with absolutely nothing noteworthy happening that might provide fodder for a semi-humorous or even topical introduction. Which seems fitting, because we also have basically nothing new to report from the court: It neither added to nor subtracted from our tally o’ relists this week. Everything old is new again.
At the start of an interview with Justice Sonia Sotomayor last night at the Hill Center, Bill Press alluded to the “800-pound gorilla in the room,” asking the justice whether she was apprehensive about the results of last Tuesday’s election. Sotomayor reacted cautiously, stating that “we can’t afford for a president to fail” and that “we have to support that which he does which is right and help guide him to those right decisions.”
“But we can’t afford to despair,” the justice continued, “and we can’t afford to give up on pursuing the values that we and others have fought so hard to achieve. And for me, this is a challenge. So I’m going to continue doing what I think is the right thing. That’s the challenge we all have to face.”