Argument preview: Justices to consider constitutionality of cross-shaped war memorial on public land

in Maryland-National Capital Park and Planning Commission v. American Humanist Association, The American Legion v. American Humanist Association, Featured, Merits Cases on Feb 21, 2019 at 1:37 pm

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.



Argument preview: Justices address circuit split on whether a period of pretrial imprisonment can toll a term of federal supervised release

in Mont v. U.S., Featured, Merits Cases on Feb 21, 2019 at 12:19 pm

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.



Relist Watch

in Cases in the Pipeline, Featured 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.



Thursday round-up

in Round-up 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, 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.’”



SCOTUSblog is hiring

in Featured on Feb 20, 2019 at 6:00 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 and by March 20. Salary is competitive and commensurate with experience. This position is located in Bethesda, Maryland.


Argument preview: Justices to hear oral argument on additional time for sex offenders who violate terms of supervised release

in U.S. v. Haymond, Featured, Merits Cases on Feb 20, 2019 at 5:30 pm

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.



Argument analysis: Meandering argument suggests justices likely to narrow bankrupts’ power to rescind licenses in bankruptcy

in Mission Product Holdings Inc. v. Tempnology, LLC, Featured, Merits Cases on Feb 20, 2019 at 4:11 pm

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.



Opinion analysis: A win for one taxpayer, but not many more

in Dawson v. Steager, Featured, Merits Cases on Feb 20, 2019 at 2:41 pm

West Virginia cannot impose its state income tax on federal retirement benefits paid to a retired U.S. marshal while exempting its own pension payments to former state law enforcement officers, the Supreme Court ruled Wednesday in a 9-0 decision. That result is a resounding — if unsurprising — victory for the petitioner, retired U.S. marshal James Dawson, who sought a $4,285 state tax refund from West Virginia for tax years 2010 and 2011. It may matter much less for other former federal workers inside and beyond the Mountain State.

The eight-page opinion by Justice Neil Gorsuch makes the case look like an easy one. As Gorsuch frames it, West Virginia grants a “generous tax exemption” to retired state law enforcement officers but denies “the same benefit” to federal law enforcement retirees. That policy runs up against the intergovernmental tax immunity doctrine — first announced in the landmark 1819 case McCulloch v. Maryland and codified at 4 U.S.C. § 111, which says that state income tax laws cannot “discriminate” against federal officers or employees “because of the source of [their] pay or compensation.” In Gorsuch’s view, West Virginia’s disparate treatment of federal and state law enforcement retirees is a classic case of anti-federal discrimination that the intergovernmental tax immunity doctrine plainly prohibits.



Argument transcript

in Merits Cases on Feb 20, 2019 at 1:10 pm

The transcript of oral argument in Mission Product Holdings Inc. v. Tempnology, LLC is available on the Supreme Court’s website.



Opinion analysis: Eighth Amendment’s ban on excessive fines applies to the states

in Timbs v. Indiana, Featured, Merits Cases on Feb 20, 2019 at 12:22 pm

The Supreme Court today ruled that the Eighth Amendment’s ban on excessive fines applies to the states. The decision is a victory for an Indiana man whose luxury SUV was seized after he pleaded guilty to selling heroin. It is also a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.

The case began back in 2015, when Tyson Timbs sold heroin to an undercover police officer. He pleaded guilty to drug charges and was sentenced to one year of home detention, living with his aunt, followed by five years on probation. The state court also ordered Timbs to forfeit his 2012 Land Rover, which he had purchased for approximately $42,000 with the proceeds of his father’s life insurance policy, on the theory that he had used the car to transport drugs.


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