Tuesday round-up

This morning the justices will hear two oral arguments. The first case on the agenda is Kelly v. United States, which stems from the “Bridgegate” controversy in New Jersey and involves the extent to which federal fraud statutes cover the politically motivated acts of public officials. Amy Howe previewed the case for this blog, in a post that first appeared at Howe on the Court. Thomas Shannan and Joseph Grosser have a preview at Cornell Law School’s Legal Information Institute. Mariam Morshedi provides a graphic explainer for the case at Subscript Law. At NPR, Nina Totenberg reports that because “in recent years, … the Supreme Court has thrown out multiple public corruption convictions — in some cases, … all but eviscerat[ing] broad statutes aimed at ensuring the honest services of public employees,” “federal prosecutors have increasingly relied on anti-fraud statutes instead.” The editorial board of The Wall Street Journal (subscription required) maintains that “[t]he government’s argument in this case would invite courts to investigate the political motives of all sorts of official acts,” and that “[t]here’s no limiting principle to what the government could prosecute as fraud.”

Today’s second case is Romag Fasteners v. Fossil, Inc., involving whether willful infringement is a requirement to seek an award of an infringer’s profits in a trademark infringement suit. This blog’s preview came from Ronald Mann. Soo Min Ko and Kaitlyn Marasi have a preview for Cornell. Subscript Law’s graphic explainer comes from Jacob Baldinger. At IP Law Update, Emmett Collazzo offers his thoughts on the case.

Yesterday the court issued additional orders from Friday’s conference, adding no new cases to this term’s merits docket and asking for the views of the solicitor general in three cases, two of which are consolidated. Amy Howe covers the order list for this blog, in a post that first appeared at Howe on the Court. At Bloomberg, Greg Stohr reports that the court “signaled interest in giving companies a broader shield from lawsuits by victims of overseas atrocities, asking the Trump administration for advice on a case stemming from child slavery on cocoa farms in the Ivory Coast.” Lawrence Hurley reports for Reuters that the justices “decided not to ‘Free the Nipple,’ refusing to hear an appeal by three women fined by a city in New Hampshire for exposing their breasts in public who argued that banning female but not male toplessness violates the U.S. Constitution.” At the Daily Caller, Kevin Daley reports that the court refused “to hear the appeal of a Massachusetts woman who was convicted of involuntary manslaughter after she pressed her boyfriend to commit suicide over numerous text messages and phone calls.”

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that yesterday “afternoon the federal government called on the Supreme Court to intervene in a dispute over a new rule … governing the admission of immigrants to the United States.” At CNN, Ariane de Vogue and others report that “[t]he request comes after the administration in August unveiled its regulation broadening the definition of ‘public charge,’ a provision that dates back at least to the Immigration Act of 1882.”

Briefly:

• At Bloomberg Law, Kimberly Robinson reports after yesterday’s argument in Lucky Brand Dungarees v. Marcel Fashions Group that the court “appeared likely to nix the Second Circuit’s novel ‘defense preclusion,’ which allowed Marcel Fashions to pursue trademark infringement claims against Lucky Brand Dungarees but prevented Lucky Brand from asserting defenses that it could have brought in earlier litigation between the two parties.”
• At the Chicago Daily Law Bulletin (subscription required), Daniel Cotter “takes a look back at the 1950s and 1960s, the period of the Warren Court, thanks to an excellent book that came out this month.”
• At The World and Everything in It (podcast), Mary Reichard discusses the oral arguments in environmental clean-up case Atlantic Richfield Co. v. Christian, employee-retirement-fund case Intel Corp. Investment Policy Committee v. Sulyma, habeas case Banister v. Davis and capital resentencing case McKinney v. Arizona.
• At The Atlantic (via How Appealing), Nick Sibilla writes that in Espinoza v. Montana Department of Revenue, which asks whether Montana’s invalidation of a law that created tax credits to provide scholarships for families who send their children to private schools, including religious schools, was constitutional, “the Court has the opportunity to do more than just settle the fate of one controversial tax credit; it could also junk Montana’s Blaine Amendment, finding it in violation of the Constitution’s religious-freedom and equal-protection clauses[:] In doing so, it would set a strong precedent against any law born of bigotry, even if other justifications seem neutral.”
• In the latest episode of Strict Scrutiny (podcast), Kate Shaw and Melissa Murray “preview the January sitting, including Bridge-gate, some fashion-y trademark cases, and whether they count as ‘older workers’ for purposes of the ADEA.”

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