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A “view” from the Courtroom: Vehicle problems

With stories abounding that the Court is “lurching” towards the conclusion of this most unusual term, we enter this morning with a lucky thirteen merits decisions still outstanding. The Justices will make a dent in that number today.

The signs that we’re now well into the late stages of the term are popping up everywhere. The television networks have their opinion “runners” stationed in the hallway outside the Public Information Office. These are the young people, often college interns clad in business attire but with athletic shoes, who whisk opinions from PIO out to the correspondents doing standups on the sidewalk.

Secondly, the first conference list for September has been distributed, listing appeals that won’t be considered until the Justices come back from their summer recess.

And in the courtroom, we learn that today is the last day for in-court admissions to the Supreme Court Bar. There will be 145 candidates admitted after opinions today, so many that they spill over from the bar section and take up several rows of the public gallery.

U.S. Solicitor General Donald B. Verrilli Jr. is back in the courtroom this morning. He was absent the last few sessions after his early June announcement that he plans to depart his post. The federal government will be a party or have a position in each of the five decisions that will be announced later this morning, and Verrilli’s office will fare pretty well today.

When the Justices take the bench, the first of the cases is Taylor v. United States. Justice Samuel A. Alito Jr. writes for a seven-one Court that a prosecution under the Hobbs Act satisfies that statute’s interstate commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. And in this case, the government met its burden by proving that the defendant’s gang had intentionally targeted drug dealers to obtain drugs an drug proceeds, Alito says.

In his bench summary, Alito provides a variation of this statement from his written opinion: “For obvious reasons, drug dealers are more likely than ordinary citizens to keep large quantities of cash and illegal drugs in their homes and are less likely to report robberies to the police.”

Justice Clarence Thomas, the current Court’s strongest proponent of limiting congressional powers, is the lone dissenter in the case.

Chief Justice John G. Roberts Jr. announces that Alito “also has our opinion in Number 15-138, RJR Nabisco Inc. v. European Community.”

“This case is somewhat more complicated” than Taylor, Alito says. Indeed. He takes us through the complex allegations that the U.S. tobacco and food concern and related entities participated in a global money-laundering scheme, and that the European Community is pressing its suit under the Racketeer Influenced and Corrupt Organizations Act.

For a time it appears that the European Community will prevail, because of the Court’s conclusions that the alleged enterprise includes predicate offenses that were committed in the United States or had sufficient ties to U.S. commerce.

But Alito goes on to discuss how irrespective of the “extraterritoriality” of some RICO provisions, the statute’s separate private right of action on which the EC is relying to bring its suit does not overcome the presumption against extraterritoriality, and thus a private RICO plaintiff must allege and prove its injury occurred in this country not abroad. The European Community and other respondents waived their domestic-injury claims at an earlier stage of the case, and their remaining RICO damages claims rest entirely on injury suffered abroad and must be dismissed.

With Justice Sonia Sotomayor not participating because she was involved in an earlier stage when a judge on the court of appeals, the decision is seven to zero in some respects and four to three in the part that limits the private right to sue. If she had participated, the case very well might have been a four-four tie.

After that complex matter, we’re ready for something a bit easier to handle. The Chief Justice says that Justice Stephen G. Breyer has the opinion in Cuozzo Speed Technologies LLC v. Lee.

“This is a patent case,” Justice Breyer explains. Oh, great. But as patent cases go, this one is somewhat more understandable than most.

The legal question involves a regulation adopted by the U.S. Patent and Trademark Office concerning its authority to cancel a already-issued patent based on a review process bringing information to light that the patent should not have been issued in the first place.

Breyer has some fun describing the underlying dispute over a patent that Cuozzo received in 2002 for a speedometer that shows a driver when he exceeds the speed limit in any given location, combining GPS data with a mechanism that makes the speedometer dial turn red at the excessive speed.

Breyer cups his left hand as he further describes the invention’s rotating disc made of translucent red glass or cellophane.

“The GPS system determines where the car is, the chip determines the speed limit at that place, and the red disc then rotates to that point on the speedometer—say, 65 miles per hour—making the needle look red as soon as the needle passes that point,” Breyer says.

This patent was challenged by a competitor, and the Patent Office held “that in light of prior art, anyone who is ‘not an automaton’ [the Patent Office’s words, Breyer stresses] would have been able to figure out how to make this invention. The written opinion further explains that in the view of the Patent Office, a non-automaton is anyone with “ordinary skill” and “ordinary creativity.”

The Court’s ruling to uphold the Patent Office’s decision to cancel the patent is unanimous in some respects and six to two in others, with Justice Alito joined by Justice Sonia Sotomayor in the partial dissent.  The heart of the ruling is that the Patent Office can read the challenged patent very broadly in order to strike it down.

Justice Thomas is next with the opinion in Utah v. Strieff, about an admittedly unlawful investigatory stop of a Utah man by police, who determined the man was wanted on an outstanding warrant, which led to a search of his person that found illegal methamphetamine and drug paraphernalia.

Thomas writes for a five-three Court that the drug evidence need not be suppressed because the link between the unconstitutional stop and the discovery of the drugs is too “attenuated” under the Court’s Fourth Amendment doctrine.

“In this case, there was no flagrant police misconduct,” Thomas says, so the police officer’s discovery of a pre-existing, untainted arrest warrant for the suspect attenuated the connection between the unconstitutional stop and the drug evidence.

Sotomayor has written a particularly strong dissent, joined in part by Justice Ruth Bader Ginsburg, citing among other things the large number of outstanding warrants in Ferguson, Mo., and “the talk” that “black and brown parents” give their children about interactions with the police. But she does not read it in the courtroom.

This means that with eight decisions left in the term, there have been no dissents from the bench.

(Justice Elena Kagan also dissents in Strieff, joined in full by Ginsburg.)

Justice Anthony M. Kennedy has the last opinion of the day, in Encino Motorcars LLC v. Navarro, in which the underlying case is about whether service advisors in a Mercedes-Benz dealership are entitled to overtime pay under the Fair Labor Standards Act.

The briefs in this case were a bit of an eye opener for how the friendly service advisor who greets you when you bring your car to the dealership service department is often a commissioned salesperson charged with trying to upsell you on certain parts and services.

This is the one case today that was an outright loss for the Solicitor General’s office.

An appropriate way for the Court to deliver the opinion might have been to gather the government’s lawyers in a linoleum-floored waiting room with a vending machine dispensing bad coffee and a TV blaring “The Price is Right.” Then, Justice Kennedy would take clipboard in hand to explain his opinion that the Department of Labor’s 2011-model regulation that the service advisors were not salespeople and thus not exempt from overtime was faulty and in need of an overhaul.

Instead, in the more august setting of the Courtroom, Kennedy explains that the government’s regulation granting the service advisers overtime pay is not controlling because it is “procedurally defective.” The vehicle will have to be kept overnight, and probably much longer, since it is being sent back to the U.S. Court of Appeals for the Ninth Circuit for that court to interpret the Labor Department regulation without that Chevron deference.

Thomas writes a dissent, joined by Alito.

With that, Chief Justice Roberts signals to Clerk Scott S. Harris to start the ball rolling on those 145 bar admissions. There are several individuals up for admission, plus large groups from the Federal Bar Association, Georgetown University Law Center, Harvard Law School, and the Phi Alpha Delta law fraternity.

For what it’s worth, the Georgetown Law group has better seats than Harvard Law, with the latter mostly back in the public gallery. And the Phi Alpha Delta fraternity is made up of women as well as men, and none of them look like they have spent the weekend partying. (It is a service organization, the fraternity’s website explains. But so was my college fraternity, and that did not exclude a certain amount of partying.)

The bar admissions take almost as long as it took to deliver the five opinions. At 10:40 a.m., Marshal Pamela Talkin announces that the Court will reconvene this Thursday.

The automatons of the Supreme Court press corps begin debating how many more opinion days there might be to issue the remaining eight decisions.

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Vehicle problems, SCOTUSblog (Jun. 20, 2016, 3:29 PM),