Tuesday round-up

EDITH ROBERTS MAR 5, 2019 6:56 AM

Yesterday the court released orders from Friday’s conference, adding a patent case to its docket for next term and declining to review two related cases involving public funding of religious institutions. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Jurist, Erin McCarthy Holliday covers the patent case, Iancu v. NantKwest, which asks whether a federal law allowing a patent applicant to seek review of a patent denial in district court but requiring the applicant to pay “all the expenses of the proceeding” includes expenses for Patent Office personnel, including attorneys.

At Bloomberg, Greg Stohr reports that although Justice Brett Kavanaugh agreed with the decision not to review the religion cases, “Kavanaugh criticized a state court ruling that bars churches from getting historic-preservation grants from a New Jersey county, aligning himself with conservative justices on public funding for religious activities.” Additional coverage comes from Jessica Gresko at AP, Kevin Daley at The Daily Caller, Adam Liptak at The New York Times, Lawrence Hurley at Reuters, Ariane de Vogue at CNN, Robert Barnes for The Washington Post, and Tim Zubizaretta at Jurist. David Savage reports for the Los Angeles Times that the justices also “let stand a $4-million verdict against two Los Angeles County sheriff’s deputies who were searching for a fugitive and mistakenly shot an innocent homeless couple sleeping in a shed,” “a rare victory for victims of mistaken police shootings.”

The court issued three opinions yesterday. In Rimini Street Inc. v. Oracle USA Inc., the justices ruled unanimously that the term “full costs” awarded to a prevailing party in a copyright case is limited to taxable costs and does not include nontaxable costs such as expert-witness fees. Ronald Mann analyzes the opinion for this blog. Nicholas Chan covers the opinion for Jurist. In another unanimous copyright case, Fourth Estate Public Benefit Corp. v. Wall-Street.com, the justices held that a copyright claimant cannot sue for infringement until after the Copyright Office has ruled on its copyright-registration application. Jessica Litman has this blog’s opinion analysis. Leanne Winkels discusses the opinion at Jurist.

And in BNSF Railway Company v. Loos, the court held 7-2 that a railroad’s payment to an employee for time lost from work is taxable compensation under the Railroad Retirement Tax Act. This blog’s opinion analysis comes from Daniel Hemel. Subscript Law provides a graphic explainer for the opinion, and Austin Koltonowski has Jurist’s coverage. Mark Walsh has a first-hand look at yesterday’s opinion announcements for this blog.

For The New York Times, Adam Liptak remarks that “Justice Clarence Thomas was busy in February[:] As usual, he asked no questions during Supreme Court arguments,” [b]ut he made up for his silence with three opinions in eight days that took issue with some of the court’s most prominent precedents,” including New York Times v. Sullivan, Roe v. Wade, and Gideon v. Wainwright. At The Interdependent Third Branch, Lawrence Friedman writes that “Thomas’s opinions preview what Chief Justice Roberts may look forward to should more justices be appointed who share not just Thomas’s interpretive approach, but his willingness to cast aside settled rules in favor of a return to the presumed original understanding of the constitution.” At the Brennan Center for Justice, Andrew Cohen warns that in questioning Gideon, in which the Supreme Court “first recognized a constitutional ‘right to counsel’ in state cases 56 years ago,” Thomas, joined by Justice Neil Gorsuch, is “telling us clearly where they want this court to go[:] … Back to a time when indigent defendants had no hope of being fairly represented.”

Briefly:

• At AP, Mark Sherman reports that after Justice Ruth Bader Ginsburg delivered two of the Supreme Court’s three opinions yesterday, “[n]ow we know what [she] was doing as she recuperated from lung cancer surgery: churning out opinions for the court at a faster clip than any of her younger colleagues.”
• At his eponymous blog, Sheldon Nahmod looks at January’s opinion in City of Escondido, California v. Emmons, a “qualified immunity excessive force case, [in which] the Court summarily reversed and once more chastised the Ninth Circuit for making the clearly settled law inquiry at too high a level of generality”; he remarks on ‘”the extreme implications” of a statement in the opinion suggesting that “there can be no clearly settled law unless the Supreme Court has weighed in on the specific issue in comparable factual circumstances.”
• At The Interdependent Third Branch, Jordan Singer considers what to expect when Justices Samuel Alito and Elena Kagan testify about the Supreme Court’s budget before a House appropriations subcommittee on Thursday, noting that “[s]ubcommittee members are likely to use the rare opportunity for direct interaction with the Justices to broach a variety of unrelated subjects, including an ethics code for the Supreme Court, the introduction of courtroom cameras, and the federal court system’s new workplace conduct policies.”

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