Tuesday round-up

By on Dec 3, 2019 at 5:19 am

There are two oral arguments on the Supreme Court’s agenda today. The first is in Rodriguez v. FDIC, which involves how courts should determine ownership of a tax refund paid to an affiliated corporate group. Daniel Hemel previewed the case for this blog. The second case this morning is Atlantic Richfield Co. v. Christian, in which the court will consider whether federal law preempts state-law claims for cleanup of hazardous waste beyond what the EPA has ordered. This blog’s preview came from Amy Howe; it was first published at Howe on the Court. At Bloomberg Environment, Ellen Gilmer and Sylvia Carignan report that the case “could shake up the EPA’s nearly 40-year-old flagship toxic waste cleanup program.” Pamela King reports for E&E News that “[t]he arguments don’t fall cleanly along ideological lines: The court’s conservative wing, which generally favors state powers, could rule in support of more environmental cleanup.” For The Washington Post (subscription required), Kathleen McLaughlin looks at Opportunity, Montana, a town that “is defined by its struggle to force powerful corporate and government interests to clean up the dangerous waste left behind” by a long-shuttered copper-mining smelter.

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It has been less than two weeks since a federal judge in Washington, D.C., issued an order blocking the executions of four federal inmates. This evening the federal government asked the Supreme Court to lift the lower court’s order and allow the executions – the first of which is scheduled for next week – to proceed, even it means that the inmates will be executed before their appeal is resolved.

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Thryv Inc. v. Click-to-Call Technologies LP presents an important issue concerning the extent to which the Patent and Trademark Office has unreviewable discretion to institute administrative reviews of previously issued patents. The issue arises in a challenging context for the petitioner and the government, both of which are arguing for an expansive interpretation of the agency’s power to make decisions that cannot be reviewed by any court.

The problem is not just that the government now takes the position that the agency’s underlying decision is wrong on the merits—although the government’s confession of error is not helpful. The bigger problem is that this now-concededly incorrect administrative decision was rendered by a panel of three “administrative patent judges” on the agency’s Patent Trial and Appeal Board, and the appointments of all PTAB administrative patent judges have been held unconstitutional by a unanimous decision issued just five weeks ago by the U.S. Court of Appeals for the Federal Circuit. Moreover, the appeals court held that these judges cannot be constitutionally appointed as so-called “inferior officers” because they have so little supervision by any superior officers in the executive branch. Continue reading »

This morning the Supreme Court heard oral argument in a challenge to the constitutionality of a New York City rule that barred gun owners from taking their licensed guns outside the city. The gun owners argued that the rule violated their right to “keep and bear arms” under the Constitution’s Second Amendment. But it’s not clear that the justices will reach the merits of the gun owners’ complaint. Instead, it seemed possible (although far from certain) that they could throw out the case because the dispute is now moot – that is, no longer a live controversy – after the city repealed the rule last summer.

Paul D. Clement at lectern for petitioners (Art Lien)

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It has been 18 years since the Supreme Court’s decision in Immigration & Naturalization Service v. St. Cyr, a case about the scope of a jurisdiction-stripping statute aimed at preventing U.S. courts of appeals from considering decisions made by the Board of Immigration Appeals, known as the BIA. In St. Cyr, the court assessed 8 U.S.C. § 1252(a)(2)(C), which strips federal appellate courts of jurisdiction to review deportation orders when noncitizens are convicted of certain crimes. The Supreme Court determined that reading this statute to preclude review of “a pure question of law” would create “substantial constitutional questions.”

Congress responded to the decision in St. Cyr in 2005 by adding a statutory provision: 8 U.S.C. § 1252(a)(2)(D), an exception to the jurisdiction-stripping provision that specifically authorizes the courts of appeals to consider “questions of law.” That provision is now before the court in the consolidated cases Guerrero-Lasprilla v. Barr and Ovalles v. Barr. Continue reading »

Monday round-up

By on Dec 2, 2019 at 6:39 am

This morning the Supreme Court kicks off its December session with oral arguments in two cases. First up is New York State Rifle & Pistol Association Inc. v. City of New York, New York, a high-profile challenge to New York City’s limits on transporting personal firearms. Amy Howe previewed the case for this blog. Subscript Law offers a graphic explainer.

For The Economist, Steven Mazie writes that this “is the case gun-rights advocates have been waiting for since 2008, when the Supreme Court first recognised an individual right to own a gun for self-defence” in District of Columbia v. Heller, which “left many questions unresolved about the Second Amendment’s ‘right of the people to keep and bear arms’: whether there are other ‘lawful purposes’ to own guns, which types of weapons are protected and how far states may go in regulating them.” A mini version of Mazie’s preview is here. Bill Lucia reports at Route Fifty that “[i]t’s an oddball case in a number of ways[:] The restrictions that sparked the court battle are not common around the U.S., and New York City and New York state rolled them back earlier this year after the Supreme Court agreed to hear the case.” At NPR, Nina Totenberg reports that “the first question Monday will be whether the case is moot and should be thrown out because New York has already given the gun owners everything they asked for in their lawsuit.” For The Wall Street Journal (subscription required), Jess Bravin reports that “[w]ith four liberal justices having rejected the premise of the Heller case and four conservatives having voiced unhappiness with the stagnation of Second Amendment doctrine, the focus, as with many divisive issues before the current court, likely will fall on Chief Justice John Roberts.”

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This week at the court

By on Dec 1, 2019 at 12:00 pm

On Monday, the justices heard oral argument in New York State Rifle & Pistol Association v. City of New York and Georgia v. Public.Resource.Org.

On Tuesday, the justices heard oral argument in Rodriguez v. Federal Deposit Insurance Corp. and Atlantic Richfield Co. v. Christian.

On Wednesday, the justices heard oral argument in Intel Corp. Investment Policy Committee v. Sulyma and Banister v. Davis.

On Friday, the justices will meet for their December 6 conference.

 
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Friday round-up

By on Nov 29, 2019 at 7:07 am

Briefly:

  • At Reuters, Andrew Chung talks to one of the plaintiffs in New York State Rifle & Pistol Association Inc. v. City of New York, New York, a high-profile challenge to New York City’s limits on transporting personal firearms that will be argued on Monday.
  • At the ABA Journal, Mark Walsh looks at Monday’s second case, Georgia v. Public.Resource.Org Inc., which asks whether the annotated version of a state code can be copyrighted, the latest battle joined by “the self-described techie and “open-source activist’” behind the nonprofit that posted the code online. [Disclosure: Arnold & Porter, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the respondent in this case.]
  • At The Daily Signal, Abigail Klose and Elizabeth Slattery preview “the high court’s two-week December sitting, [in which] the justices will hear arguments in some important cases, including ones regarding the Second Amendment and Obamacare.”

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Supreme Court justices live dual lives. On one hand they generally manage to stay out of the limelight while actually doing their jobs. Even with pressure to the contrary, the justices have managed to keep cameras out of the court and to limit the release of audio recordings of oral arguments to the Fridays after the arguments are heard. The justices’ other interactions with one another are held behind closed doors and details are only occasionally made public years after events transpire, in the event a justice chooses to release his or her personal papers after leaving the bench. (Justice Harry Blackmun was the last justice to do so.)

That said, the justices do quite a bit of posturing to stay relevant to the public. Some of this has to do with earning additional income through book publications and tours. (Justice Neil Gorsuch, for example, recently released “A Republic, If You Can Keep It” with the help of his former clerks David Feder and Jane Nitze.) The justices also go on speaking tours unrelated to books, teach at institutions of higher education both domestically and abroad during breaks from Supreme Court work and occasionally are covered in the mainstream media for occurrences wholly unrelated to their judicial decisions. An entire website, SCOTUS Map, is dedicated to tracking the justices’ extra-judicial pursuits. Continue reading »

 
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When Congress dramatically narrowed federal post-conviction review of state criminal convictions in the Antiterrorism and Effective Death Penalty Act of 1996, one of the central changes was to make it almost impossible for state prisoners to bring “second-or-successive” federal habeas petitions—to take another shot at collaterally attacking the state criminal proceeding in federal court after the first one was unsuccessful. But what if a state prisoner files a timely motion to amend the judgment in his first federal habeas petition under Rule 59(e) of the Federal Rules of Civil Procedure? Should that motion be treated as part of the first federal post-conviction proceeding (to be governed by AEDPA’s somewhat less restrictive rules), or as the initiation of a second (that will usually be barred by AEDPA)? That is the question the justices will consider next Wednesday in Banister v. Davis. And although the case arose out of a hyper-technical dispute over the timing of an individual state prisoner’s habeas appeal, how the justices resolve that dispute could have significant implications for the scope of federal post-conviction review for state and federal prisoners more generally. Continue reading »

 
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