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On Monday, the court will release orders from the March 27 conference at 9:30 a.m. There is a possibility of opinions at 10:00 a.m. We will be live-blogging starting at 9:25 a.m. at this link, where you can sign up for an email reminder when the live blog begins.

Last Friday, the justices had their regularly scheduled private conference. According to the court’s Public Information Office, the meeting was a departure from their normal format: Following Center for Disease Control guidelines to combat the spread of the coronavirus, only Chief Justice John Roberts was actually in the justices’ conference room, with the rest of the justices joining the meeting by phone. Today the justices issued orders from that conference, but they did not add any new cases to their docket for next term.

The justices summarily vacated a decision by the U.S. Court of Appeals for the 5th Circuit in the case of Charles Davis, who in 2016 pleaded guilty to being a felon in possession of a firearm and possessing drugs with the intent to distribute them. Davis was sentenced to 40 months in federal prison, with his sentence to start after time in prison for state offenses in 2015 for which he had not yet been sentenced. Continue reading »

This morning the Supreme Court issued its opinion in an important race-discrimination case. The justices unanimously ruled that a lawsuit brought under 42 U.S.C. § 1981, a part of the Civil Rights Act that prohibits racial discrimination in contracts, requires the plaintiff to show “but for” causation – that is, that the defendant would have made a different contracting decision were it not for the plaintiff’s race. The decision was a significant victory not only for Comcast, the defendant in the case, which had been sued for billions of dollars, but for the business community more broadly.

The case began several years ago, when Entertainment Studios Network, owned by African American entrepreneur Byron Allen, and the National Association of African American-Owned Media filed a lawsuit against Comcast in federal court in California. ESN and the NAAAM alleged that Comcast’s decision not to carry several television channels that ESN had offered to it was motivated by racial discrimination and therefore violated Section 1981. The district court threw out the case, but on appeal the U.S. Court of Appeals for the 9th Circuit allowed the lawsuit to go forward. The court of appeals held that ESN only needed to show that race was one “motivating factor” in Comcast’s decision not to carry the channels offered by ESN; ESN did not need to show that Comcast would not have turned ESN down if it were not for Allen’s race. Comcast went to the Supreme Court, which agreed last year to review its appeal. Continue reading »

Due to guidance surrounding the coronavirus outbreak, the IMLA has rescheduled its 2020 Mid-Year Seminar, which will be held entirely online. The five-day seminar will take place during the afternoons of April 20-24, and will include a Supreme Court Update panel with this blog’s Amy Howe, Goldstein & Russell’s Sarah Harrington and Kirkland & Ellis’ Paul Clement, moderated by Lisa Soronen of the State and Local Legal Center.

Click here for the full schedule and to register.


A state cannot be sued for copyright infringement because Congress did not validly abrogate sovereign immunity when it enacted the Copyright Remedy Clarification Act of 1990, the Supreme Court held Monday in Allen v. Cooper. Justice Elena Kagan wrote the opinion for six justices; Justice Clarence Thomas joined the opinion in part; and Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment.

The case arose from a salvage operation for Blackbeard’s flagship Queen Anne’s Revenge, which sank off the coast of North Carolina in 1718 after a “reign over the seas” that was “short-lived.” Petitioner Frederick Allen was hired to document the salvage operation. He sued North Carolina when the state published some of his photos and videos without his permission and without payment.

The court held that Allen’s argument that the CRCA validly abrogated state sovereign immunity was foreclosed by the court’s 1999 decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which held that the Patent Remedy Act of 1990, enacted at the same time as the CRCA, did not validly abrogate sovereign immunity. Florida Prepaid held that Congress could not abrogate sovereign immunity using its powers under the intellectual property clause of Article I, Section 8 of the Constitution, which empowers Congress to secure to authors and inventors the exclusive rights in their writings and discoveries. The power to protect copyrights and patents derives from one constitutional source. If Congress cannot abrogate for patents, as Florida Prepaid established, it cannot abrogate for copyrights, and for the same reasons. Continue reading »


Until 1979, every jurisdiction in the United States allowed mentally ill defendants to assert what was traditionally regarded as an insanity defense – that is, to argue that because they did not understand that their actions were wrong, they cannot be held criminally responsible for those actions. Since then, five states, including Kansas, have abolished that defense. Today, by a vote of 6-3, the Supreme Court ruled that a state’s failure to allow a mentally ill defendant to raise such a defense does not violate the Constitution.

The ruling came in the case of James Kahler, who in November 2009 shot and killed four members of his family: his estranged wife, the couple’s two daughters and his wife’s grandmother. At Kahler’s trial on four counts of first-degree murder, the prosecution’s expert testified that Kahler could have formed the kind of premeditated intent to kill required for a death sentence, while an expert for Kahler countered with testimony that at the time of the shooting Kahler had been so depressed that he could not help himself. But Kahler could not defend himself by arguing that he was insane: In 1995, Kansas had abolished the traditional insanity defense, replacing it with a new law that allows defendants to argue only that they could not have intended to commit the crime because of their mental illness. Kahler was convicted and sentenced to death.

On appeal, the Kansas Supreme Court rejected Kahler’s argument that the state’s failure to allow him to raise an insanity defense violated the Constitution. Today the Supreme Court, in an opinion by Justice Elena Kagan, upheld that ruling. Continue reading »


As reported on this blog and Howe on the Court, the Supreme Court has issued an order extending the deadline for filing a petition for a writ of certiorari to 150 days from the lower court’s judgment. The prior deadline had been 90 days.

Those intending to file a petition, however, should note that the deadline for seeking certiorari in civil cases is fixed by statute, 28 U.S.C. § 2101(c), at “ninety days after the entry of [the lower court’s] judgment,” with the possibility of extension “for good cause shown … for a period not exceeding sixty days.” The court’s recent order appears to reflect its judgment that, under the present circumstances, good cause exists to give all potential petitioners the benefit of more time. 

As the court has previously explained, because the certiorari deadline in civil cases is statutory, it is mandatory and jurisdictional. That means the court is not at liberty to extend it further, even when there are compelling reasons to do so. Civil-case petitioners thus should not expect any further extension past the 150 days now permitted. (The deadline in criminal cases is set by the court’s own rules and can theoretically be relaxed, but the court very rarely does so.)

We live-blogged on Monday, March 23, as the court released orders from the March 20 conference, adding no new cases to their merits docket, and opinions in Guerrero-Lasprilla v. Barr, Allen v. Cooper, Kahler v. Kansas, Comcast v. National Association of African American-Owned Media and Davis v. United States.

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Posted in Live

Monday round-up

By on Mar 23, 2020 at 6:40 am

On what would have been the first day of oral argument in the March session, court-watchers are focused instead on how the Supreme Court is adapting to the current public-health emergency. Steven Mazie reports at The Economist’s Espresso blog that “[w]ith no date set for hearings to resume and the pandemic worsening, the term’s final nine engagements—still on the calendar for late April—are also in question.” Kenneth Jost observes at Jost on Justice that “[o]ther federal appellate courts have conducted oral arguments remotely over the past two weeks; the Supreme Court should follow suit and, in the process, recognize the need to give the public greater access to their proceedings.” In an op-ed at The Hill, Jonathan Turley argues that “[t]his crisis should force the Supreme Court, albeit kicking and screaming, into the 21st century.”

Continue reading »

Posted in Round-up

This week at the court

By on Mar 22, 2020 at 12:00 pm

On Monday, the court released orders from the March 20 conference, adding no new cases to next term’s merits docket. The justices released opinions in Guerrero-Lasprilla v. Barr, Allen v. Cooper, Kahler v. Kansas, Comcast v. National Association of African American-Owned Media and Davis v. United States.


Friday round-up

By on Mar 20, 2020 at 6:03 am

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that yesterday “the justices responded again to the emergency created by the [coronavirus] and its impact on U.S. workplaces by issuing an order that … relaxes filing deadlines for petitions seeking Supreme Court review.” At Bloomberg Law, Jordan Rubin reports that “Thursday’s order, which doesn’t apply to appeals that have already been granted certiorari, also relaxes court practices on certain time extension requests.”

At the ABA Journal, Mark Walsh takes a look back at “the past outbreaks of disease cited by the court” in its recent announcement that it is postponing the March oral argument session. At CNN, Joan Biskupic observes that the coronavirus pandemic “is bound to force Supreme Court justices into new territory[:] They may open their operations in more modern ways[, o]r, if they move in the opposite direction and shun any high-tech alternative, they might postpone all previously scheduled March and April oral argument sessions, a total 20 disputes, until next summer or fall.” Tom Goldstein offers some possibilities for how the court could handle the term’s yet-to-be-argued cases in a post on this blog.

Continue reading »

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