If the justices really were looking for detailed help from the advocates (as my preview suggested) in Wednesday’s argument in Manuel v. City of Joliet, the petitioner’s presentation didn’t seem to provide it. Whether a constitutional tort for an unlawful prolonged detention should be lodged under the Fourth Amendment is the narrow issue. Beyond that, whether that tort should be described as “malicious prosecution,” and what precisely its constitutional contours should be, present broader questions about which the justices seemed divided and confused. When clarity was not forthcoming from the oral advocates, by the end of the hour the justices seemed to be coming to the view that a limited ruling that the Fourth Amendment applies, with a remand for further analysis of many subsidiary issues, might be the best way out of the thicket.
John Elwood reviews Monday’s relisted cases.
The Supreme Court term that began Monday marks the sixth year that we have regularly wasted the time of SCOTUSblog readers with our musings on the Supreme Court’s “Shadow Docket”; even before that, we detracted from the Internet’s exclusive focus on the Kardashians, hate speech, and porn with our intermittent musings on relisted cases. It’s been a fun ride, but we’re becoming increasingly aware that our profligate use of electrons cannot continue indefinitely. To put this feature on a more sustainable footing, we begin this term by making a new commitment to only using ethically-sourced nouns, organic local adjectives, and adverbs only when absolutely necessary. And also, doing full write-ups on fewer cases so that we can do, you know, paying work.
Last time we checked in, when the long summer loomed ahead as yet uncorrupted by the unremitting crappiness of 2016, the court was sitting on 17 relisted cases. Since then, the court’s done some housekeeping, granting cert in 10 of those cases (henceforth known as “the November sitting”), denying cert in four of them L (two with dissents), holding one, granting-vacating-and-remanding (“GVRing”) one, and, just for good measure, relisting one (more on which anon). Because America is all about the future, and we are lazy, we won’t bore you by reciting the details of something that happened so long ago.
In its conference of October 7, 2016, the court will consider petitions involving issues such as whether the Multistate Tax Compact has the status of a contract that binds its signatory states; whether inter partes review violates either Article III of the Constitution or the Seventh Amendment; and whether the Endangered Species Act requires the Forest Service to reinitiate consultation on a completed programmatic agency action that has no on-the-ground effects when a new species is listed or new critical habitat is designated.
Analysis of Tuesday’s oral argument in Bravo-Fernandez v. United States, a double jeopardy case, comes from Rory Little for this blog. Robert Barnes covered the argument for The Washington Post, as did Mark Sherman and Sam Hananel for the Associated Press. In The Wall Street Journal, Jess Bravin reports on Tuesday’s oral argument in the federal bank fraud case Shaw v. United States, during which Justice Stephen Breyer drew from popular culture headlines with a hypothetical question based on “the recent Kim Kardashian jewelry heist in Paris.” Cristian Farias at the Huffington Post also mentions the Kardashian hypothetical in his coverage of the arguments in Shaw.
The petition of the day is:
Issue: Whether the good-faith exception to the exclusionary rule applies when law-enforcement officials obtain a warrant based on a predicate unconstitutional search or seizure (as the 1st, 2nd, 5th, 6th, and 8th Circuits hold), or whether the good-faith exception has no application where a search warrant is issued based on a predicate Fourth Amendment violation (as the 9th Circuit, 10th Circuit, 11th Circuit, and several state high courts hold).
Today the justices heard oral argument in the case of Bassam Salman, the Chicago grocery wholesaler who was convicted of insider trading after he made thousands of dollars trading on stock tips from Michael Kara. Michael obtained the tips from his brother Maher Kara, a Citigroup investment banker who was married to Salman’s sister. The question before the court was whether Maher had received the kind of “personal benefit” required by the court’s insider trading cases to hold Salman criminally liable for insider trading.
It was a good sign for Texas death row inmate Duane Buck. Several minutes into the oral argument of his attorney, Christina Swarns, Justice Samuel Alito – perhaps the justice least likely to be sympathetic to criminal defendants – observed that “what occurred at the penalty phase of” Buck’s trial “is indefensible.” Alito was referring to the decision by Buck’s trial lawyer to introduce testimony by a psychologist, Walter Quijano, that Buck was statistically more likely to be dangerous in the future because he is black. His lawyer’s use of that testimony, Buck argues, violated Buck’s constitutional right to an effective attorney.
On October 6 at 12 p.m., the D.C. Bar will host a seminar on Bank of America Corp. v. City of Miami, in which the court will consider whether Congress has given permission under the Fair Housing Act to city governments to sue mortgage lenders and housing operators for racial discrimination in housing. Deepak Gupta and Brent McIntosh will serve as panelists, and Amy Howe will moderate. More information and registration are available for the in-person presentation and the webinar.
As I noted in my preview of Bravo-Fernandez v. United States, a complex double jeopardy case, sometimes oral argument can cast a case as more one-sided than it seemed going in. The transcript of Tuesday’s argument suggests that the court may be leaning in the government’s favor here.
The jury returned both acquittals and a conviction: What does that mean?
Recall that businessman Juan Bravo-Fernandez and a senator for the commonwealth of Puerto Rico were tried together on three federal-program-bribery counts in 2005. The jury returned verdicts of not guilty on two counts (traveling interstate to commit the bribery and conspiracy to commit the bribery), but convicted on the substantive bribery count. Even in the face of seeming inconsistency, such a conviction would normally be upheld – but here the conviction count was reversed on appeal because the jury was misinstructed on the definition of bribery.