Editor’s note: A previous version of this article ran on March 16, 2020.

When the Supreme Court entertains argument on Tuesday in United States v. Briggs, which had originally been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations. And, should each side’s principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel. Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions. The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations. The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes. That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted. The U.S. Court of Appeals for the Armed Forces agreed with the defendants. Continue reading »

This week we highlight cert petitions that ask the Supreme Court to decide, among other issues, which forensic analysts in a multi-analyst DNA-testing process a criminal defendant has the right to confront at trial and whether noncitizens who entered the United States without authorization but who later received Temporary Protected Status are eligible for lawful-permanent-resident status.

The Supreme Court in 2009’s Melendez-Diaz v. Massachusetts held that the Constitution’s confrontation clause prohibits prosecutors from introducing forensic reports into evidence without giving criminal defendants the chance to cross-examine the analysts who produced the reports. However, courts have struggled to articulate which analysts prosecutors must call to testify when multiple analysts participate in forensic testing. In Chavis v. Delaware, a jury convicted Dakai Chavis of burglary of an apartment on the basis of a DNA sample that police took from outside the bedroom window. At trial, an analyst who completed the final, but not initial, steps in analyzing the DNA sample from the apartment testified that the sample matched a reference sample of Chavis’ DNA. DNA testing typically involves six steps, and the testifying analyst did not observe or supervise the analysts who performed the earlier tasks. Determining that the absence of the other analysts did not violate the confrontation clause, the Delaware Supreme Court affirmed Chavis’ conviction. Chavis asks the justices to review the Delaware court’s decision.

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Judge Amy Coney Barrett, now a Supreme Court nominee, has followed a well-worn path of nominees before her. President Donald Trump nominated her to the U.S. Court of Appeals for the 7th Circuit on Nov. 2, 2017. He then nominated her to the Supreme Court, just under three years later, on Sept. 26, 2020. Chief Justice John Roberts, nominated by President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit, similarly served less than three years as an appeals court judge before Bush nominated him to the Supreme Court.

While it may come as no surprise to see Barrett as the current nominee, her work during her limited time on the 7th Circuit is worthy of study, and this article undertakes to do so with a complete sample of the decisions in which Barrett was involved. Barrett participated in approximately 622 cases on the 7th Cicuit that produced written opinions or orders across a slew of issue areas. Barrett herself authored around 100 majority, concurring and dissenting opinions. (Case counts are based on distinct opinions. The counts in this article and dataset differ from those on the 7th Circuit’s website, as those are based on docket numbers and thus provide duplicate opinions when one opinion resolved multiple docket entries.) Continue reading »

The justices finished up the first week of the new term by finally hearing argument in Google v. Oracle, a case that has been pending at the Supreme Court since the fall of 2018. The high-stakes dispute presents a challenge by Oracle (the current owner of a copyright in the Java platform created by Sun Microsystems) against the Android operating system, which Google designed when it entered the smartphone market.

Google wanted Android to be accessible to developers familiar with Java. Accordingly, although Google purchased or rewrote from scratch all the code that provides the functionality of Android, it reused the “declaring” code from Java (about 11,000 lines) that programmers use to call up particular commands. (You might imagine that it reused phrases like “Open Sesame,” but created anew the mechanisms to cause doors to open and shut.) A jury held that Google’s actions were “fair use,” but the U.S. Court of Appeals for the Federal Circuit held that Google violated Oracle’s copyright and that its actions as a matter of law could not be regarded as fair use. As the case comes to the Supreme Court, Google can win in either of two ways: by convincing the justices that the code it copied was not protected by copyright at all, or by persuading the justices to uphold the jury’s verdict that Google’s copying was “fair.” Continue reading »

This article is part of a symposium on the jurisprudence of the late Justice Ruth Bader Ginsburg.

Katherine Franke is the James L. Dohr professor of law and director of the Center for Gender and Sexuality Law at Columbia University.

Supreme Court Justice Ruth Bader Ginsburg will be remembered as the principal architect of the law of sex equality. There are three key components to her conception of sex-based justice worth considering as we digest her larger life and legacy as an advocate, teacher and member of the Supreme Court.

First, understanding Ginsburg’s legacy is enhanced by an appreciation of how she was a proceduralist at heart. In the early 1960s, Ginsburg traveled to Sweden and learned Swedish to work on a project with legal scholar Anders Bruzelius on the rules of civil procedure in Europe. That early love of procedure informed, if not underwrote, her approach to sex equality. Continue reading »

Attorneys and justices explored competing causation standards and competing understandings of due process on Wednesday during oral argument in Ford v. Montana Eighth Judicial District (consolidated with Ford v. Bandemer). The cases present a question of personal jurisdiction: whether individuals injured in automobile accidents involving Ford cars can sue Ford in the states in which the accidents took place (Montana and Minnesota) if Ford regularly sells, ships and markets cars in those states but manufactured and sold the specific cars involved in the accidents in other states.

Sean Marotta, for Ford, and Deepak Gupta, for plaintiffs, phone in for arguments (Art Lien) Continue reading »

The Supreme Court announced on Friday that it would continue to hear oral argument by telephone for the rest of the calendar year. In a press release from the court’s Public Information Office, the court indicated that, in response to the COVID-19 pandemic, the justices and lawyers will participate in the arguments scheduled for the November and December arguments sessions remotely, with live audio available to the public.

The announcement comes two days after the court finished the first week of arguments in the October argument session, which began on Monday. Like the telephonic oral arguments in May, which were the first of their kind, the telephonic arguments appeared to have been successful despite the occasional technical problem. Friday’s announcement means that two of the biggest cases of the term thus far, one involving a challenge to the constitutionality of the Affordable Care Act’s individual mandate and another involving religious objections to antidiscrimination laws, will be argued remotely – and can be heard by the public in real time.

The court indicated that it will “continue to closely monitor public health guidance in determining plans for the January argument session,” which begins on Jan. 11, 2021.

This post was originally published at Howe on the Court.

The Supreme Court issued two noteworthy shadow-docket orders on Thursday — one involving mail-ballots in Montana and another involving access to a prescription drug used to induce early-term abortions. In the Montana case, Justice Elena Kagan rejected a request from Republicans to block county officials from sending mail-ballots to all registered voters. In the abortion case, the court — over dissent from Justices Samuel Alito and Clarence Thomas — declined to act for now on the Trump administration’s request to reinstate in-person dispensing requirements for the abortion pill during the coronavirus pandemic. Meanwhile, the justices have another census case on their emergency docket, this one asking whether the federal government can end field operations several weeks early. Continue reading »

The Supreme Court on Friday put off action on a request from the Food and Drug Administration to reinstate a federal requirement that a pill used to induce abortion in the early stages of pregnancy be picked up in person from a health care provider. A federal district court in Maryland had suspended the requirement in July, concluding that requiring in-person visits during the COVID-19 pandemic violates the Constitution. The FDA asked the justices in August to block the district court’s order while it appealed, but the justices told the government on Thursday night to go back to the district court to ask for a less sweeping order there.

The regulations at the center of Friday’s order govern the dispensation of Mifeprex, the brand name for mifepristone, which the FDA has approved to end pregnancies through the first 10 weeks. The FDA’s regulations require patients to receive the drug from a health care provider in a medical setting, after signing a form acknowledging risks associated with the drug. After picking up the drug from a hospital or clinic, patients can take the pill at home, but the regulations do not permit patients to receive the pill by mail. Continue reading »

Another dispute involving the 2020 census has reached the Supreme Court, and this time the justices will decide on an emergency basis whether the Trump administration can end the head-count portion of the census early.

The administration says it needs to stop counting people immediately – and move to the complex phase of processing the data collected in the field – in order to comply with a key statutory deadline at the end of the year. But lower courts have ordered the Department of Commerce, which conducts the census, to continue counting through Oct. 31. The administration filed an emergency request Wednesday night asking the Supreme Court to put those orders on hold.

The administration’s ability to complete the data processing by the end of the year may affect whether it can implement a controversial plan to exclude unauthorized immigrants from the population counts that are used to reapportion seats in the House of Representatives. The legality of that plan is the subject of a separate case currently pending before the Supreme Court. Continue reading »