Environmental groups faced a skeptical bench during Monday’s argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest. The permit also authorized the developers to tunnel 600 feet beneath the Appalachian Trail within the forest. Vacating the permit, the 4th Circuit held that the entire 2,100-mile Appalachian Trail is part of the National Park System and therefore, under the Mineral Leasing Act, the trail is off-limits for energy development and pipeline rights-of-way.

Michael K. Kellogg for respondents (Art Lien)

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In 1991, James McKinney and his half-brother killed two people while robbing the victims at their homes. McKinney was sentenced to death, but in 2015 the U.S. Court of Appeals for the 9th Circuit threw out his death sentences. In 2018, the Arizona Supreme Court resentenced McKinney, once again imposing the death penalty. Today a divided Supreme Court upheld those sentences, rejecting McKinney’s argument that he was entitled to be resentenced by a jury instead.

At McKinney’s original trial, he was convicted by a jury for the 1991 murders of Christine Mertens and Jim McClain, but he was sentenced to death by a judge. The Arizona Supreme Court upheld McKinney’s sentences, but in 2015 the 9th Circuit ruled that the sentencing judge and the Arizona Supreme Court should have considered evidence that McKinney suffers from post-traumatic stress disorder as a result of the horrific abuse that he experienced as a child. The 9th Circuit relied on the Supreme Court’s 1982 decision in Eddings v. Oklahoma, in which the justices ruled that a sentencer in a capital case cannot refuse to consider relevant mitigating evidence – that is, factors that might provide a reason for a sentence other than the death penalty.

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The Hague Convention on the Civil Aspects of International Child Abduction requires that a child who is abducted from her “habitual residence” be returned to that country, so that the courts there can resolve any custody issues between the child’s parents. As a result of this “automatic return” rule, the determination of the child’s “habitual residence” can be a key decision for U.S. courts reviewing cases brought under the Hague Convention. Today the Supreme Court agreed unanimously that courts should look at all of the circumstances of a child’s case to decide where her habitual residence is. The justices rejected the argument by an American mother that the habitual residence of an infant, who is too young to know where she is or become acclimated to a particular place, can only be established by the agreement of both parents, and they upheld an order requiring the return of the woman’s child to Italy.

The question came to the court in the case of Michelle Monasky, a U.S. citizen who married Domenico Taglieri, an Italian citizen, in 2011. The couple moved to Milan, Italy, in 2013; Monasky gave birth to their daughter, known as A.M.T., in 2015. Monasky contends that she was the victim of domestic violence and investigated the possibility of returning to the United States – including applying for jobs and getting quotes from movers – during her pregnancy. At roughly the same time, Monasky and Taglieri looked for childcare and bought baby gear in Italy and located a larger apartment outside Milan. Shortly after A.M.T was born, Monasky took A.M.T. to a domestic-violence safe house in Italy, where she stayed for two weeks before leaving with the baby for her parents’ home in Ohio. Continue reading »

It has been 10 years since 15-year-old Sergio Hernandez was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, while Hernandez was playing on the Mexican side of the border. The Hernandez family filed a lawsuit in federal court, seeking to hold Mesa responsible for their son’s death, but today the Supreme Court, by a vote of 5-4, ruled that the lawsuit cannot go forward.

Justice Samuel Alito with opinion in Hernandez v. Mesa (Art Lien)

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Next week’s argument in Liu v. Securities and Exchange Commission will take the justices through familiar ground, as they consider once again the boundaries of the broad and multifarious forms of relief available in litigation enforcing the Securities Act of 1933 and the Securities Exchange Act of 1934.

This particular case involves Section 21 of the Exchange Act, added in 2002, which includes “any equitable relief that may be appropriate or necessary” in the list of remedies available to the SEC (as opposed to private plaintiffs) in judicial (as opposed to administrative) proceedings. The specific question is whether that general reference to “equitable relief” includes the remedy of “disgorgement.” Generally speaking, disgorgement would entitle the SEC to recover from the defendant all of the defendant’s profits from the unlawful activity. Continue reading »

Editor’s Note: An earlier version of this post ran on February 10, 2020, as an introduction to this blog’s symposium on Seila Law v. Consumer Financial Protection Bureau, as well as at Howe on the Court, where it was originally published.

The congressional commission that investigated the 2008 financial crisis concluded that the United States’ consumer-protection system was “too fragmented to be effective.” In response to that finding, in 2010 Congress created the Consumer Financial Protection Bureau as part of the Dodd-Frank Act. The CFPB – whose website describes the bureau as a “U.S. government agency that makes sure banks, lenders, and other financial companies treat you fairly” – is led by one director appointed by the president and confirmed by the Senate to serve a five-year term; once the director has been confirmed, the president can only remove her for “inefficiency, neglect of duty, or malfeasance in office.” On March 3, the Supreme Court will hear oral argument in a challenge to the constitutionality of that leadership structure. Continue reading »

We live-blogged on Tuesday, February 25, as the court released opinions in McKinney v. Arizona, Rodriguez v. Federal Deposit Insurance Corp., Hernandez v. Mesa and Monasky v. Taglieri. SCOTUSblog is sponsored by Casetext, the most intelligent way to search the law.

Today the justices will hear argument in one case, United States v. Sineneng-Smith, which asks whether a federal law making it a crime to encourage or cause illegal immigration for financial gain violates the First Amendment. Gabriel Chin previewed the case for this blog. Allison Franz and Zora Franicevic have a preview for Cornell Law School’s Legal Information Institute.

Yesterday the court released orders from Friday’s conference, adding Fulton v. Philadelphia, a challenge to Philadelphia’s exclusion of Catholic Social Services from the city’s foster care system because the group will not place children with same-sex couples, to their merits docket for next term. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. For The Wall Street Journal (subscription required), Jess Bravin and Brent Kendall report that “Monday’s announcement signals another step for the court’s conservative majority in re-examining the boundaries between church and state that some justices say improperly curtail many Americans’ religious exercise.” Additional coverage comes from Ronn Blitzer and Bill Mears at Fox News, Mark Walsh at Education Week’s School Law Blog, and Kevin Daley at The Washington Free Beacon, who reports that “the plaintiffs are asking the justices to overturn the 1990 case Employment Division v. Smith, which held that religious believers cannot claim exemptions from laws that apply to everyone in a neutral way,” a “move [that would] would have far-reaching implications.” Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog.

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The Supreme Court heard oral argument this morning in a case brought by the victims of the August 1998 bombings of the U.S. embassies in Tanzania and Kenya. Although the bombings killed over 200 people and injured more than a thousand others, today’s discussion before the eight justices – Justice Brett Kavanaugh was recused – was almost entirely a technical one. The victims and their family members are seeking to hold Sudan responsible for its support of al Qaeda, which carried out the bombings, but a federal appeals court in Washington, D.C., ruled that the plaintiffs cannot recover punitive damages because Congress did not authorize such damages until 2008, 10 years after the bombings. After 60 minutes of debate this morning, it seemed possible, although not at all certain, that the plaintiffs might have at least five votes to reverse that decision.

Matthew D. McGill for petitioners (Art Lien)

The Foreign Sovereign Immunities Act, which governs the immunity of foreign countries to suit in the United States, carves out several exceptions to the general rule that foreign countries cannot be sued in U.S. courts. In 1996, Congress first enacted a “terrorism exception” to the FSIA, which allows a foreign country that has been identified as a “state sponsor” of terrorism to be sued in U.S. courts for (among other things) providing significant support for terrorists.

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The Supreme Court returned from its winter recess today with just one new grant from last week’s private conference, but the newest addition to the court’s merits docket is a significant one. Next term the justices will hear oral argument in Fulton v. City of Philadelphia, a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents. After they lost in the lower courts, the challengers went to the Supreme Court, where they asked the justices to weigh in on three questions: what kind of showing plaintiffs must make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are “neutral” or “generally applicable”; and whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflict with the agency’s religious beliefs. Continue reading »