On Friday, February 21, at 9:00 a.m. ET, the American Enterprise Institute will host a discussion between Professors Adam White and Keith Whittington on Whittington’s recent book, “Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present,” a study of Supreme Court decisions on the constitutionality of acts of Congress. The talk will cover Whittington’s study, the historical trends it reveals and how we should understand the court’s role in our constitutional republic.

Click here for more info and to RSVP.

Greg Stohr reports at Bloomberg that “[t]he Consumer Financial Protection Bureau’s independence, designed by a Democratic-controlled Congress to insulate the agency from political pressure, now risks being its downfall,” as the court gets ready to hear argument in a constitutional challenge to the structure of the bureau, Seila Law v. CFPB. At Reuters’ On the Case blog (via How Appealing), Alison Frankel writes that “the CFPB has found an unlikely champion” in the case”: “The Trump administration believes that the bureau’s lone director is unconstitutionally shielded from accountability to the president, yet the Justice Department’s final brief before oral argument urged the Supreme Court not to issue a ruling that will halt the CFPB’s ‘critical work.’”

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Flag of Sudan

In August 1998, truck bombs exploded outside the U.S. embassies in Tanzania and Kenya, killing more than 200 people and leaving more than a thousand others injured. Next week the Supreme Court will hear oral argument in a lawsuit brought by the victims and their family members against Sudan, seeking to recover damages for that country’s support of al Qaeda, which carried out the bombings. A federal district court in Washington, D.C., awarded the plaintiffs billions of dollars, but the U.S. Court of Appeals for the District of Columbia Circuit threw out nearly half of that award, holding that the plaintiffs cannot recover punitive damages because Congress did not authorize such damages until 2008, 10 years after the bombings. Now the justices will decide whether the D.C. Circuit’s ruling can stand.

As a general rule, foreign governments cannot be sued in U.S. courts. But the Foreign Sovereign Immunities Act, which governs the immunity of foreign countries in U.S. courts, carves out several exceptions to that rule. The FSIA’s “terrorism exception,” first enacted in 1996, allows a foreign country that has been identified as a “state sponsor” of terrorism to be sued in U.S. courts for (among other things) providing significant support for terrorists. Continue reading »

On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline’s construction and protect the Appalachian Trail.

The court will have to construe several statutes, including the Mineral Leasing Act, which promotes pipeline rights-of-way and other energy development on federal lands (except lands in the National Park System), and the National Trails System Act, which designated the Appalachian Trail as a National Scenic Trail and put the Secretary of the Interior in charge of administering it. The secretary later delegated that authority to the National Park Service, and today the Park Service administers the 2,100-mile trail as one of the 419 official units in the park system. Continue reading »

Briefly:

• At HuffPost, Daniel Marans notes that “[e]xpanding the Supreme Court, an increasingly popular reform among some progressive activists, is not politically costly for Democrats, according to an academic survey commissioned by a group that supports the idea.”
• Veronica Stracqualursi reports at CNN that Senate Majority Leader Mitch McConnell last week “reiterated his position that the GOP-led Senate would confirm a nominee to any Supreme Court vacancy that occurred this election year, despite leaving a seat vacant in 2016 and preventing President Barack Obama’s nominee from consideration.”
• For this blog, John Elwood breaks down a new memorandum from the Supreme Court clerk’s office “addressing cert-stage pleadings and the scheduling of cases for consideration at the court’s periodic conferences,” which explains “in detail a number of the court’s practices on cert-stage scheduling that in the past largely traveled by word of mouth.”

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John Elwood reviews recent guidance on cert-stage case scheduling

On February 14, the Supreme Court Clerk’s Office released a valentine for the bar: a new, four-page memorandum addressing cert-stage pleadings and the scheduling of cases for consideration at the court’s periodic conferences. The memorandum is the second in a series of occasional memoranda the clerk’s office issues for the guidance of counsel and litigants; the first such memo, addressing the filing of amicus curiae briefs, was released in October 2019. The memo promotes clarity by explaining in detail a number of the court’s practices on cert-stage scheduling that in the past largely traveled by word of mouth.

The new memo addresses some of the basics and some of the finer points involving cert-stage filings. Among the more basic: The memo makes clear that briefs in opposition are not required and discusses the process for obtaining extensions to file responsive pleadings and for formally waiving the respondent’s right to file them. Among the finer points, the memo notes that, as a matter of court practice, lawyers who are not members of the Supreme Court bar can both obtain extensions to file briefs in opposition and file waivers, but consistent with Rule 9, only members of the court’s bar can file a responsive cert-stage pleading. Continue reading »

On Monday, the Supreme Court was closed for Presidents’ Day.

On Friday, the justices met for their February 21 conference and released the argument calendar for the April 2020 sitting.

The Supreme Court is the court of last resort for death row inmates around the country. The vast majority of death row inmates are convicted and sentenced under state death penalty laws, and so most of the capital appeals that the court reviews concern state statutes. The federal death penalty is given in a small number of cases and carried out in even fewer. As a result, the history of the court’s interaction with federal capital appeals is brief, although the Department of Justice has recently announced its intention to resume federal executions, prompting challenges that are currently pending. (For a detailed primer on the role of the Supreme Court in capital cases, see here.)

In 1972, the court ruled in Furman v. Georgia that all death penalty laws, both federal and state, were unconstitutional because of the penalty’s arbitrary and discriminatory administration. States were quick to pass new death penalty laws to address the concerns; the court upheld some of those statutes four years later in Gregg v. Georgia. Congress did not reinstate the federal death penalty until 1988, however, and then only for some drug-related crimes. A full-fledged reinstatement arrived with the Federal Death Penalty Act of 1994, which dramatically expanded the list of federal crimes eligible for the death penalty and outlined procedures for administering it. Continue reading »

Death penalty cases have long been among the most difficult and divisive for the Supreme Court. With the possibility that federal executions may resume this year for the first time since 2003, the court’s role in these cases may grow even more complex.

The Supreme Court has three primary roles in death penalty cases. First, the court reviews habeas corpus appeals by death row inmates raising claims that their trial or death sentence was carried out in violation of their constitutional rights. Sometimes states appeal these cases to the Supreme Court when inmates have won in the lower court. Second, the court receives petitions challenging the constitutionality of the method of execution. Third, and most dramatically, the court handles emergency applications to stay executions pending additional court proceedings.

There is a fourth type of death penalty proceeding, a direct appeal by a prison inmate from the conviction and sentence that have been upheld by a state’s highest court. It is extremely rare for the Supreme Court to agree to hear a direct appeal, however. Continue reading »

This week we highlight petitions pending before the Supreme Court that address, among other things, whether a plasma donation center is a “place of public accommodation” subject to the requirements of Title III of the Americans with Disabilities Act, whether laws mandating membership in a state bar association are subject to the same “exacting” First Amendment scrutiny that the Supreme Court prescribed for mandatory public-sector union fees in Janus v. American Federation of State, County, and Municipal Employees, Council 31, and whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state-law negligence action making a “leader” of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there.

The petitions of the week are below the jump: Continue reading »