Editor's Note :

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The Supreme Court will release orders from the February 22 conference on Monday at 9:30 a.m. There is a possibility of opinions on Tuesday and Wednesday.
On Monday the Supreme Court also hears oral argument in Manhattan Community Access Corp. v. Halleck; Amy Howe has our preview.

Reminder: SCOTUSblog is hiring

By on Feb 22, 2019 at 4:30 pm

The blog and Goldstein & Russell, P.C., are looking for someone to serve as both the firm manager for Goldstein & Russell, P.C., and the deputy manager of SCOTUSblog. The principal responsibilities for this position include, but are not limited to:

  • Administrative work for the firm and in particular for Tom Goldstein, the firm’s managing partner;
  • Scheduling travel, which may entail making frequent last-minute changes and arrangements, sometimes during off hours;
  • Assisting with case coverage;
  • Coordinating and proofing Supreme Court filings;
  • Occasional paralegal tasks, including drafting simple legal documents, checking citations for accuracy and formatting, and light legal research; and
  • Overseeing occasional special projects.

The qualifications for this position include:

  • Excellent organizational skills and attention to detail;
  • Excellent writing and editing skills;
  • Strong interest in learning about the U.S. Supreme Court and its workings; and
  • Ability to improvise as we occasionally need all hands on deck both during and outside of normal business hours.
  • Undergraduate experience with law-related courses is a plus, though not a requirement, as is an interest in attending law school. Part-time students are not eligible for this position.

This position would begin in mid-July 2019. A commitment of at least two years is required for this position. To apply, please send a cover letter, resume, transcript (either official or unofficial), and unedited writing sample (no more than five pages) to jon@goldsteinrussell.com and ahamm@scotusblog.com by March 20. Salary is competitive and commensurate with experience. This position is located in Bethesda, Maryland.

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Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

 

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Petitions of the week

By on Feb 22, 2019 at 10:03 am

This week we highlight petitions pending before the Supreme Court that address, among other things, the proper test for an equal-terms claim under the Religious Land Use and Institutionalized Persons Act, the constitutionality of a state’s prohibiting political action committees from transferring money to other political action committees, an ERISA plaintiff’s burden of proof, and whether an order denying a motion for relief from an automatic stay is a final order in bankruptcy court.

The petitions of the week are:

18-896

Issue: Whether, under the First Amendment, a state may prohibit political action committees from transferring money to other political action committees.

18-926

Issues: (1) Whether an ERISA plaintiff bears the burden of proving that “losses to the plan result[ed] from” a fiduciary breach, as the U.S. Courts of Appeals for the 2nd, 6th, 7th, 9th, 10th and 11th Circuits have held, or whether ERISA defendants bear the burden of disproving loss causation, as the U.S. Court of Appeals for the 1st Circuit concluded, joining the U.S. Courts of Appeals for the 4th, 5th and 8th Circuits; and (2) whether, as the U.S. Court of Appeals for the 1st Circuit concluded, showing that particular investment options did not perform as well as a set of index funds, selected by the plaintiffs with the benefit of hindsight, suffices as a matter of law to establish “losses to the plan.”

18-938

Issue: Whether an order denying a motion for relief from the automatic stay is a final order under 28 U.S.C. § 158(a)(1).

18-944

Issues: (1) Whether the court below applied the proper test for a Religious Land Use and Institutionalized Persons Act’s equal-terms claim; and (2) whether Tree of Life established a facial or as-applied equal-terms violation here.

Friday round-up

By on Feb 22, 2019 at 7:03 am

At The Economist’s Democracy in America blog, Steven Mazie covers the court’s decision Tuesday in Timbs v. Indiana, in which the justices ruled unanimously “that the constitution protects people accused of crimes from having outlandish sums seized by city or state authorities.” Subscript Law offers a graphic explainer for the decision. At Bloomberg Law, Jordan Rubin and Kimberly Robinson report that in separate concurrences, Justices Clarence Thomas and Neil Gorsuch supported “incorporating the Eighth Amendment’s excessive fines clause to the states by way of the privileges or immunities clause instead of via the Fourteenth Amendment’s due process clause,” “a view of the Constitution that could be incredibly consequential were it to eventually find favor with a majority of justices.” Commentary comes from Jason Snead and Elizabeth Slattery at The Daily Signal and Alan Kaplinsky at The National Law Review. At Stanford Law School’s Legal Aggregate blog, Sharon Driscoll discusses the decision with law professor Robert Weisberg.

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Editor’s Note: An earlier version of this post ran on December 10, 2018,, as an introduction to this blog’s symposium on The American Legion v. American Humanist Association, as well as at Howe on the Court, where it was originally published.

Over the years, the Supreme Court has sometimes struggled to explain when and why religious symbols are permitted in the public sphere and when they are not. Next Wednesday, the justices will hear oral argument in a dispute over the constitutionality of a cross that sits on a traffic median in the suburbs outside Washington, D.C. The challengers say that the cross is an illegal government endorsement of Christianity, while its defenders counter that the cross is simply a secular war memorial. The justices’ eventual opinion will likely decide the fate of the cross, but the ruling could also clarify – or potentially even revamp – the Supreme Court’s test for resolving these kinds of challenges.

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Approximately eight in 10 federal prisoners serve a period of supervised release after they get out of prison, and any violation of a condition of supervised release can lead to reimprisonment. When the Sentencing Reform Act of 1984 abolished federal parole, supervised release became the primary way to monitor federal offenders after prison. Unlike parole, which substitutes for part of a prison term, supervised release is a mechanism for post-custodial supervision that does not involve any early release from prison. The number of people serving periods of supervised release has been increasing over the years, nearly tripling, for example, between 1995 and 2015, according to a 2017 issue brief released by the Pew Charitable Trusts.

Next Tuesday will be a big day for supervised release at the Supreme Court. The justices will hear oral arguments in two supervised-release cases, United States v. Haymond and Mont v. United States. These dual arguments will help shine a spotlight on supervised release, an important but understudied area of federal sentencing law.

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Relist Watch

By on Feb 21, 2019 at 11:40 am

John Elwood reviews Tuesday’s relists.

I have an argument coming up, so I’m going to be fairly summary today. There was a fair amount of turnover at the February 15 conference, with one relist getting the nod (while its companion case had to settle for a hold) and one lucky petitioner winning summary reversal. Although the court denied review to a former congressman who sought to challenge criminal charges he was facing, Justice Sonia Sotomayor at least filed an opinion acknowledging that the issue he raised was an important one that might be reviewed “should subsequent developments warrant.” (I’m guessing she means if he’s convicted at trial.) And Justice Clarence Thomas filed an opinion calling on the court to reconsider its defamation jurisprudence in a case that had been rescheduled 12 times – so often that it was one of the rare non-relisted cases I discussed this term.

The rest of the relists are back — including, significantly, that tangle of 56 Armed Career Criminal Act relists that we flagged last time. I never know what to expect when the court relists an ACCA case; I always half-expect a cry of frustration that the statute requires so much of its time.

We have seven new relists this week presenting four new issues.

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Thursday round-up

By on Feb 21, 2019 at 7:20 am

Yesterday the court issued two opinions from the December argument session. In Timbs v. Indiana, the court ruled unanimously that the Eighth Amendment’s ban on excessive fines applies to states and localities under the due process clause of the 14th Amendment. Amy Howe has this blog’s opinion analysis, which first appeared at Howe on the Court. At Bloomberg, Greg Stohr reports that “[t]he ruling limits what critics say is an increasingly common and abusive government practice of using fines and forfeitures to raise revenue.” David Savage reports for the Los Angeles Times that “[t]he ruling is a victory for Tyson Timbs, an Indiana man and a former heroin addict whose $42,000 Land Rover was seized by police after he was convicted of two drug sales that amounted to about $300.” At Law.com, Tony Mauro reports that Justice Clarence Thomas agreed with the result, but would have relied on the privileges or immunities clause, which Thomas has long argued provides “a stronger rationale for justifying fundamental rights than the due process clause.” Additional coverage comes from Kevin Daley at The Daily Caller, Jess Bravin for The Wall Street Journal, Bill Lucia at Route Fifty, and Charles Gallmeyer at Jurist. ABC News has a video interview with Timbs’ attorney. Commentary comes from Ruthann Robson at the Constitutional Law Prof Blog and Kent Scheidegger at Crime & Consequences, who writes that “[t]his is likely the last provision of the Bill of Rights to be ‘incorporated.’”

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In 2006, Congress passed the Adam Walsh Child Protection and Safety Act “to protect the public from sex offenders and offenders against children.” One part of the act provides that if a defendant who is required to register as a sex offender commits certain crimes carrying a prison term longer than one year, his supervised release will be revoked, and he must return to prison for at least five years – and possibly for the rest of his life. Next week the Supreme Court will hear oral argument in a challenge to this provision.

In 2010, Andre Haymond was convicted of possession of child pornography and sentenced to 38 months in prison, followed by 10 years of supervised release. Haymond was also required to register as a sex offender, participate in mental-health treatment and allow his computer activity to be monitored.

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The second and last argument of the week came in the Supreme Court’s most important bankruptcy case of the year, Mission Product Holdings Inc. v. Tempnology, LLC. The case presents a problem that has confused lower courts for more than 30 years: What happens when a debtor exercises its statutory right to reject a contract in bankruptcy? It is plain from the language of the statute that the debtor’s rejection should be treated as a “breach” of the contract, and that the counterparty can sue the bankrupt for damages. The question, though, is whether the rejection’s “breach” operates to rescind the entire contract. In this case, for example, the contract in question is a trademark license, and the debtor not only wants to terminate its own obligations under the contract; it also wants to retract the licensee’s right to use the debtor’s trademark.

You might wonder, if this problem has plagued lower courts for 30 years, why Congress has not responded. In fact, it has. Specifically, shortly after the 1985 decision of the U.S. Court of Appeals for the 4th Circuit in Lubrizol Enterprises v. Richmond Metal Fin (holding that a debtor can terminate rights under a patent license), Congress promptly amended the Bankruptcy Code to provide that the licensee of a patent can retain its rights even if the licensor rejects the license in bankruptcy. The problem is that Congress’ amendment applies to patent and copyright licenses, but not to trademark licenses. Hence this case.

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