Challengers urge justices to dismiss census case after district court ruling (Updated)

Challengers urge justices to dismiss census case after district court ruling (Updated)UPDATE: On Friday, January 18, the Supreme Court announced that it had removed the case from the February argument calendar and suspended the briefing schedule “pending further order of this Court.” Although the justices will not hear oral argument in the case in February, today’s order does not foreclose the possibility that the case could […]

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Challengers urge justices to dismiss census case after district court ruling (Updated)

UPDATE: On Friday, January 18, the Supreme Court announced that it had removed the case from the February argument calendar and suspended the briefing schedule “pending further order of this Court.” Although the justices will not hear oral argument in the case in February, today’s order does not foreclose the possibility that the case could be argued later in the term, at which point the justices could also potentially review the district court’s decision blocking the government from including the citizenship question on the 2020 census.

On February 19, the Supreme Court is scheduled to hear oral argument in U.S. Department of Commerce v. U.S. District Court for the Southern District of New York, a dispute over evidence in a challenge to the Trump administration’s decision to reinstate a question about citizenship on the 2020 census. The justices agreed in November to review the case, but they also rejected the government’s request to put the trial in the case on hold. The district court went ahead with the trial, and on Tuesday it issued its decision, blocking the government from using the citizenship question on the census. On January 17, the challengers asked the justices to dismiss the case, telling them that the district court’s ruling “has fundamentally altered the circumstances that were present” when the Supreme Court granted review.

The dispute arose in March 2018, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship. The government explained that including a citizenship question would help the Department of Justice better enforce federal voting-rights laws, but the decision drew a court challenge from a group of states, cities and counties, who argue that the question will discourage undocumented immigrants from responding to the census, skewing the results.

The challengers sought to question Ross and John Gore, the acting head of DOJ’s civil rights division. The Supreme Court blocked the challengers from questioning Ross but allowed them to depose Gore and to seek facts outside the official administrative record.

On Tuesday, the district court issued its ruling, barring the government from including the citizenship question on the 2020 census. Relying only on the official record, the district court concluded that the government’s conduct involved a “smorgasbord of classic, clear-cut” violations of the federal law governing administrative agencies.

In a statement issued later that day, a spokeswoman for DOJ described the government as “disappointed” and “still reviewing the ruling,” but she also argued that the government was “legally entitled to include” the question – suggesting that the government planned to appeal. But as of this afternoon, the government had not yet acted. Instead, the challengers seized the initiative, filing a motion to dismiss the Supreme Court case.

The challengers told the justices that the question in the Supreme Court case centers on whether the district court was “correct to order” the Ross deposition. But, the challengers said, that issue is now moot – that is, no longer a “live” controversy – because the district court made its decision without questioning Ross and vacated the order requiring Ross’ deposition. Any remaining questions about whether the district court should have allowed fact-finding outside the official record can be addressed if the government appeals, the challengers argued.

With a deadline of June 2019 to finalize the census questionnaire looming, the challengers contended that it would be more efficient for all of the issues in the dispute to be considered together, rather than first litigating the dispute over the evidence in the Supreme Court. If the government wants relief from the district court’s ruling barring it from using the citizenship question on the 2020 census, the challengers concluded, it can seek an expedited appeal.

This post was first published at Howe on the Court.

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Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licensesRatified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power […]

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Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail license to sell alcohol there, or is the state’s power instead limited by a doctrine known as the dormant commerce clause, which bars states from discriminating against interstate commerce? The Supreme Court’s answer could have a significant impact on where Americans buy their alcohol and what kinds are available to them, but after an hour of oral argument it was hard to see exactly where the justices were headed in the case.

Shay Dvoretzky for petitioner (Art Lien)

The dispute pits Tennessee Wine and Spirits Retailers Association, a trade association that has taken the lead in defending the Tennessee law, against both Total Wine, the national mega-chain with nearly 200 stores in 23 states, and Doug and Mary Ketchum, who moved to Tennessee to buy a liquor store after doctors told them that the weather in their home state of Utah was bad for their disabled daughter. When Total Wine and the Ketchums applied for licenses to run retail stores in Nashville and Memphis, respectively, the Tennessee Alcoholic Beverage Commission was poised to approve their applications, until the retailers – citing the residency requirement – threatened to sue the state.

The retailers’ threat prompted the TABC to go to federal court, seeking a ruling on whether the residency requirement is constitutional. The U.S. Court of Appeals for the 6th Circuit struck down the requirement, and the justices agreed last year to hear the case.

At this morning’s oral argument, there was general agreement that, if Total Wine and the Ketchums wanted to sell something else – for example, milk or paint – Tennessee’s residency requirement would be unconstitutional, because it violates the dormant commerce clause by discriminating against out-of-state residents. The question before the court, then, was whether the 21st Amendment “saves” laws like Tennessee’s.

Representing the retailers defending the residency requirement, attorney Shay Dvoretzky told the justices that it does. The 21st Amendment, Dvoretzky argued, was intended to give back the powers that the states had had before Prohibition under two federal laws – the Wilson Act and the Webb-Kenyon Act – that gave them “near complete” power to regulate the distribution of liquor. States can do almost anything, Dvoretzky stressed, as long as they treat in-state and out-of-state products the same, which the residency requirement does.

This expansive power, Dvoretzky made clear in responding to a question from Justice Sonia Sotomayor, means that laws like Tennessee’s residency requirement do not violate the Constitution even if they are intended to protect in-state retailers from competition. There is no “economic protectionism” exception to the 21st Amendment, Dvoretzky emphasized.

Dvoretzky later repeated this idea in response to a question from Justice Samuel Alito, who asked him whether the state could impose a requirement that the grandparents of an applicant for a liquor license have lived in Tennessee. Dvoretzky responded that such a requirement “would not create a dormant Commerce Clause problem.” Before Prohibition, Dvoretzky said, the states’ powers included the power to discriminate against out-of-state interests.

Justice Brett Kavanaugh was skeptical. The problem I’m having, Kavanaugh said to Dvoretzky, is that nothing in the text of the 21st Amendment – which bars the “transportation or importation” of liquor into a state in violation of that state’s laws – gives the states complete authority over the distribution of liquor. All that the 21st Amendment was intended to do, Kavanaugh suggested, was let states remain “dry” if they opted to do so; it wasn’t intended to allow states to pass laws that discriminate against out-of-state interests.

Arguing as a “friend of the court” supporting the retailers, Illinois Solicitor General David Franklin represented 34 states and the District of Columbia. Franklin told the justices that the twin questions of who can sell alcohol and on what terms have always been at the heart of the 21st Amendment.

Justice Elena Kagan appeared unconvinced that states have complete latitude to regulate those questions, observing that Tennessee’s residency requirement seems to be an outlier. “Is there anything in your argument,” she asked Franklin, “that would give us a way to say that” these kinds of extreme examples are “clearly protectionist” and must be struck down, even if more reasonable residency requirements might survive?

Franklin pushed back, responding that although Tennessee’s residency requirements could potentially violate other parts of the Constitution, they do not violate the dormant commerce clause. That prompted Kagan to ask whether a better option for the court would be for it to rule that the dormant commerce clause does apply to the residency requirement, at which point the state could come back and demonstrate that it has “real health and safety concerns” that justify the laws.

Franklin resisted, telling Kagan that such an approach would “still embroil the courts in the kind of line drawing that the 21st Amendment was designed to relieve them of” and would “be at odds with the broad regulatory discretion” that the 21st Amendment gives the states. The argument that Total Wine and the Ketchums are making, Franklin emphasized, would strip all meaning from the 21st Amendment by treating alcohol the same as any other commodity. “But it’s not,” Franklin concluded.

Appearing on behalf of Total Wine and the Ketchums, lawyer Carter Phillips reiterated Kavanaugh’s suggestion (later echoed by Alito) that the 21st Amendment does not give states broad authority to regulate alcohol but instead was intended to allow states that had decided to remain “dry” to stop the importation of alcohol from other states.

Carter G. Phillips for respondents (Art Lien)

Justice Stephen Breyer countered that the Supreme Court’s earlier cases had already recognized that the 21st Amendment gives states “virtually complete control” over how they want to structure their liquor-distribution systems. What’s more, Breyer added, most states have long had some sort of residency requirement. “The history favors the other side,” Breyer told Phillips, even if it doesn’t necessarily make sense.

Kagan and Justice Neil Gorsuch fretted aloud about the prospect that a ruling for Total Wine and the Ketchums would open the doors to new challenges – for example, to other state laws regulating the sale and distribution of liquor. If we rule for you, Gorsuch told Phillips, the next case will argue that the current system discriminates against out-of-state residents by requiring retailers to have a physical presence in the state. Isn’t the next business model, Gorsuch continued, just to operate as the Amazon of liquor?

Phillips demurred, noting that Total Wine is a brick-and-mortar retailer. In any event, he responded, if such cases come to fruition, the states can make different arguments about why liquor retailers need to have an in-state presence. But in this case, he emphasized, Tennessee has never tried to explain why its residency requirements are necessary.

This is a hard case to handicap: Justice Ruth Bader Ginsburg was absent, Chief Justice John Roberts said very little, and Justice Clarence Thomas did not say anything at all. Throw in the fact that Tennessee has made only a half-hearted attempt to defend the residency requirements, and it becomes even more difficult to predict exactly what the justices are likely to do. A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

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No action on blockbuster cases

No action on blockbuster casesThis morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not […]

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No action on blockbuster cases

This morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not do: The justices did not act on a long list of high-profile cases that they considered last week, involving everything from abortion to the Trump administration’s ban on service in the military by most transgender people.

The justices asked the U.S. solicitor general to weigh in on three cases, two of which are related. Alabama Department of Revenue v. CSX Transportation and CSX Transportation v. Alabama Department of Revenue are the latest chapter in a long-running battle over taxes that the state levies on diesel fuel for railroads – but not barges. The Supreme Court has already reviewed the case twice, in 2010 and again in 2015. In Toshiba Corp. v. Automotive Industries Pension Fund, the solicitor general will provide the government’s views on the reach of federal securities laws when a securities-fraud claim is based on a transaction in the United States but otherwise generally involves foreign conduct.

The justices sent the case of Kentucky death-row inmate Larry White – who was convicted in 2006 and sentenced to death for the 1983 sexual assault and murder of Pamela Armstrong, a young mother of five – back to the state court for reconsideration. The Armstrong case was cold until 2004, but when it was reopened police learned that White had been a suspect during the original investigation and had later been convicted of killing two other women around the same time and in the same place as Armstrong. Police were eventually able to link White to the crime through DNA that they obtained from a cigar that fell on the ground when police pulled over a car in which White was a passenger and patted him down.

After the Kentucky Supreme Court upheld his conviction and sentence, White asked the U.S. Supreme Court to review two questions. The first was whether he should have been allowed to present evidence of his intellectual disability beyond his score of 76 on one IQ test; the second was whether the traffic stop from which officers obtained the DNA evidence was unconstitutional (so that the evidence cannot be admitted against White) because the officers never followed through with their investigation of the traffic violation that triggered the stop.

Today the justices sent the case back to the Kentucky Supreme Court, ordering the state court to take another look at White’s case in light of the U.S. Supreme Court’s 2017 ruling in Moore v. Texas, in which the justices threw out a Texas death-row inmate’s sentence on the ground that the state court had used the wrong standards to conclude that the inmate was not intellectually disabled. Justice Samuel Alito dissented from the court’s decision to send the case back, in a brief opinion that was joined by Justices Clarence Thomas and Neil Gorsuch. Referring to an earlier opinion as well as one by the late Justice Antonin Scalia, Alito stressed that because the U.S. Supreme Court’s decision in Moore predated the Kentucky Supreme Court’s decision by “almost five months,” it is not an “intervening factor” that, in his view, would justify sending the case back: He would have simply denied review.

The justices also denied review in the case of Barry Michaels, who had challenged the federal ban on gun possession by convicted felons. When Michaels filed his petition for review in June, the lead respondent in the case was Jeff Sessions, then the attorney general of the United States. As law professor Steve Vladeck explained in November, Michaels later filed a motion seeking to have deputy attorney general Rod Rosenstein, rather than Matthew Whitaker, whom the president has named as the acting attorney general, substituted for Sessions, on the ground that the federal law governing vacancies in the executive branch does not trump another law outlining the order of succession for officials in the Department of Justice. Today the justices denied both the motion to substitute and the petition for review without comment.

The cases on which the justices did not act today include a challenge to the exclusion of churches from public funds for historic preservation; a challenge to an Indiana law that requires fetal remains to be cremated or buried and bars abortions based on the race, sex or disability of the fetus; a challenge to a New York City law restricting the transport of guns outside the city limits; a trio of cases asking the justices to weigh in on whether federal employment-discrimination laws protect LGBTQ employees; a challenge to the Trump administration’s decision to end DACA, a program that allowed undocumented immigrants who came to the United States as children to apply for temporary protection from deportation; and a challenge to the effective ban on transgender service members. The justices will likely consider these cases again at their conference on Friday, January 18, and could announce new grants from that conference as early as Friday afternoon. After that, the justices’ next conference is not until Friday, February 15, at which point any new cases would normally be scheduled for oral argument in the fall.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in Michaels. The author of this post is not affiliated with the firm.]

* * *

Past case linked to in this post: Moore v. Texas, 137 S. Ct. 1039 (2017)

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Eight new grants, Ginsburg recovery from surgery “on track”

Eight new grants, Ginsburg recovery from surgery “on track”One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg […]

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Eight new grants, Ginsburg recovery from surgery “on track”

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, although the justice will miss next week’s oral argument, participating in the cases by reading the briefs and transcripts of oral arguments, as she did this week.

Meanwhile, the justices issued orders from their private conference today, adding eight new cases to their merits docket. The issues in the cases included everything from the constitutionality of a Wisconsin law that allows law enforcement to draw blood from an unconscious motorist to when the statute of limitations begins to run for federal civil rights claims based on the fabrication of evidence in criminal proceedings. The list of grants did not, however, include some of the high-profile cases that the justices considered this morning, involving issues such as abortion, gun rights, the Trump administration’s decision to end the “Deferred Action for Childhood Arrivals” program, the ban on transgender servicemembers in the military and whether federal employment discrimination laws protect LGBTQ employees.

In Rehaif v. United States, the justices agreed to decide whether, when the government prosecutes a noncitizen who is in the United States illegally for violating a federal law prohibiting him from having guns or ammunition, the government must show that the defendant knew he was in the country illegally, or whether it is enough to show that the defendant knew he had the guns or ammunition.

The question arose in the case of Hamid Mohamed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, who came to the United States on a student visa but was dismissed from school – and, as a result, was no longer in the country legally. Several months later, Rehaif was arrested and charged with having ammunition in his hotel room; he was convicted and sentenced to 18 months in prison. The U.S. Court of Appeals for the 11th Circuit upheld Rehaif’s sentence, rejecting his argument that he could only be convicted if he knew that he was in the country illegally.

In Mitchell v. Wisconsin, the justices will rule on the constitutionality of a state law allowing law-enforcement officials to draw blood from unconscious drivers without a warrant. The petitioner in the case, Gerald Mitchell, was arrested for driving while intoxicated. A preliminary breath test indicated that Mitchell had a blood-alcohol concentration of 0.24; when police took Mitchell to the hospital because he had passed out, a blood test revealed a blood-alcohol concentration of 0.222.

When Mitchell went to court, he argued that the blood-test results should not be admitted because police had not gotten a warrant before drawing the blood – a violation, he said, of the Fourth Amendment. After the Wisconsin Supreme Court upheld the blood test, Mitchell asked the U.S. Supreme Court to weigh in. The fact that Wisconsin law authorized the blood test, on the theory that Mitchell had consented to the test by getting behind the wheel, does not make the law constitutional, he contended.

McDonough v. Smith is the first of two granted cases today filed by former acting solicitor general Neal Katyal. The question in McDonough is when the statute of limitations begins to run for a federal civil rights claims alleging that prosecutors fabricated evidence in a criminal proceeding – when the defendant is cleared of wrongdoing, or when he should have known that the evidence was fabricated? The question arises in the case of Edward McDonough, a former election official in New York, who was indicted on 74 felony counts alleging that he had been involved in the forgery of absentee-ballot applications and absentee ballots. McDonough was acquitted in 2012 and filed a lawsuit less than three years later. But a federal trial court concluded that his lawsuit came too late, because the statute of limitations for his fabrication-of-evidence claim begin to run long before he was acquitted, when he knew or should have known that the evidence was manufactured. A federal appeals court upheld that ruling, and today the Supreme Court agreed to weigh in.

Fort Bend County v. Davis is Katyal’s second grant today. Before filing a lawsuit under Title VII of the Civil Rights Act of 1964, an employee who alleges that she has been the victim of employment discrimination must first go to the federal Equal Employment Opportunity Commission. The question that the justices agreed to review today is whether federal courts have the power to review Title VII claims if the employee did not file a charge with the EEOC, or whether Title VII’s requirement that a plaintiff go to the EEOC first is instead what is known as a “claim-processing rule” – a rule requiring someone to take specific steps, often to promote order – that can be waived or forfeited.

In Food Marketing Institute v. Argus Leader Media, the justices will consider the meaning of the term “confidential” in the Freedom of Information Act, which protects from disclosure all “confidential” private-sector “commercial or financial information” in the government’s possession, In particular, the justices will decide whether the government should withhold any commercial or financial information that is not publicly disseminated, or whether the entity opposing disclosure of information must show that the disclosure would likely cause substantial competitive harm.

The case arose when a South Dakota newspaper, the Argus Leader, tried to get data about the federal food stamp program. The U.S. Department of Agriculture, which runs the program, refused to turn over data about food stamp sales at specific stores, but the district court ordered it to release the data, concluding that any harm to the stores was “speculative at best.” The Food Marketing Institute entered the case to appeal that ruling after USDA declined to do so, and the U.S. Court of Appeals for the 8th Circuit affirmed.

In another of today’s grants, Quarles v. United States, the justices will decide a case involving the timing of the intent required to commit burglary for purposes of a “violent felony” under Armed Career Criminal Act: Do prosecutors need to prove that the defendant intended to commit a crime when he first entered the building where the burglary occurred, or is it enough that the defendant decided to commit the burglary at some point while he was in the building?

In Parker Drilling Management Services v. Newton, the justices will decide whether California’s overtime and wage laws apply to drilling rigs on the outer continental shelf under the Outer Continental Shelf Lands Act.

And in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the justices will decide whether the Constitution’s due process clause bars a state from taxing trusts when beneficiaries of the trust are in-state residents. Urging the Supreme Court to take the case, the state stressed that over “$120 billion of our nation’s income flows through trusts,” making them a “vital source of tax revenue for the states.”

More orders from today’s conference are expected on Monday, January 14, at 9:30 a.m. The justices will meet again for their next conference on Friday, January 18, and could add more cases to their merits docket that day. After that, the justices’ next regularly scheduled conference is not until Friday, February 15.

This post was originally published at Howe on the Court.

[Disclosure: The law firm of Vinson & Elkins, LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Quarles and is also among the counsel on an amicus brief in support of the petitioner in Food Marketing Institute and Parker Drilling, but the author of this post is not affiliated with the firm.]

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Eight new grants, Ginsburg recovery from surgery “on track”

Eight new grants, Ginsburg recovery from surgery “on track”One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg […]

The post Eight new grants, Ginsburg recovery from surgery “on track” appeared first on SCOTUSblog.

Eight new grants, Ginsburg recovery from surgery “on track”

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, although the justice will miss next week’s oral argument, participating in the cases by reading the briefs and transcripts of oral arguments, as she did this week.

Meanwhile, the justices issued orders from their private conference today, adding eight new cases to their merits docket. The issues in the cases included everything from the constitutionality of a Wisconsin law that allows law enforcement to draw blood from an unconscious motorist to when the statute of limitations begins to run for federal civil rights claims based on the fabrication of evidence in criminal proceedings. The list of grants did not, however, include some of the high-profile cases that the justices considered this morning, involving issues such as abortion, gun rights, the Trump administration’s decision to end the “Deferred Action for Childhood Arrivals” program, the ban on transgender servicemembers in the military and whether federal employment discrimination laws protect LGBTQ employees.

In Rehaif v. United States, the justices agreed to decide whether, when the government prosecutes a noncitizen who is in the United States illegally for violating a federal law prohibiting him from having guns or ammunition, the government must show that the defendant knew he was in the country illegally, or whether it is enough to show that the defendant knew he had the guns or ammunition.

The question arose in the case of Hamid Mohamed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, who came to the United States on a student visa but was dismissed from school – and, as a result, was no longer in the country legally. Several months later, Rehaif was arrested and charged with having ammunition in his hotel room; he was convicted and sentenced to 18 months in prison. The U.S. Court of Appeals for the 11th Circuit upheld Rehaif’s sentence, rejecting his argument that he could only be convicted if he knew that he was in the country illegally.

In Mitchell v. Wisconsin, the justices will rule on the constitutionality of a state law allowing law-enforcement officials to draw blood from unconscious drivers without a warrant. The petitioner in the case, Gerald Mitchell, was arrested for driving while intoxicated. A preliminary breath test indicated that Mitchell had a blood-alcohol concentration of 0.24; when police took Mitchell to the hospital because he had passed out, a blood test revealed a blood-alcohol concentration of 0.222.

When Mitchell went to court, he argued that the blood-test results should not be admitted because police had not gotten a warrant before drawing the blood – a violation, he said, of the Fourth Amendment. After the Wisconsin Supreme Court upheld the blood test, Mitchell asked the U.S. Supreme Court to weigh in. The fact that Wisconsin law authorized the blood test, on the theory that Mitchell had consented to the test by getting behind the wheel, does not make the law constitutional, he contended.

McDonough v. Smith is the first of two granted cases today filed by former acting solicitor general Neal Katyal. The question in McDonough is when the statute of limitations begins to run for a federal civil rights claims alleging that prosecutors fabricated evidence in a criminal proceeding – when the defendant is cleared of wrongdoing, or when he should have known that the evidence was fabricated? The question arises in the case of Edward McDonough, a former election official in New York, who was indicted on 74 felony counts alleging that he had been involved in the forgery of absentee-ballot applications and absentee ballots. McDonough was acquitted in 2012 and filed a lawsuit less than three years later. But a federal trial court concluded that his lawsuit came too late, because the statute of limitations for his fabrication-of-evidence claim begin to run long before he was acquitted, when he knew or should have known that the evidence was manufactured. A federal appeals court upheld that ruling, and today the Supreme Court agreed to weigh in.

Fort Bend County v. Davis is Katyal’s second grant today. Before filing a lawsuit under Title VII of the Civil Rights Act of 1964, an employee who alleges that she has been the victim of employment discrimination must first go to the federal Equal Employment Opportunity Commission. The question that the justices agreed to review today is whether federal courts have the power to review Title VII claims if the employee did not file a charge with the EEOC, or whether Title VII’s requirement that a plaintiff go to the EEOC first is instead what is known as a “claim-processing rule” – a rule requiring someone to take specific steps, often to promote order – that can be waived or forfeited.

In Food Marketing Institute v. Argus Leader Media, the justices will consider the meaning of the term “confidential” in the Freedom of Information Act, which protects from disclosure all “confidential” private-sector “commercial or financial information” in the government’s possession, In particular, the justices will decide whether the government should withhold any commercial or financial information that is not publicly disseminated, or whether the entity opposing disclosure of information must show that the disclosure would likely cause substantial competitive harm.

The case arose when a South Dakota newspaper, the Argus Leader, tried to get data about the federal food stamp program. The U.S. Department of Agriculture, which runs the program, refused to turn over data about food stamp sales at specific stores, but the district court ordered it to release the data, concluding that any harm to the stores was “speculative at best.” The Food Marketing Institute entered the case to appeal that ruling after USDA declined to do so, and the U.S. Court of Appeals for the 8th Circuit affirmed.

In another of today’s grants, Quarles v. United States, the justices will decide a case involving the timing of the intent required to commit burglary for purposes of a “violent felony” under Armed Career Criminal Act: Do prosecutors need to prove that the defendant intended to commit a crime when he first entered the building where the burglary occurred, or is it enough that the defendant decided to commit the burglary at some point while he was in the building?

In Parker Drilling Management Services v. Newton, the justices will decide whether California’s overtime and wage laws apply to drilling rigs on the outer continental shelf under the Outer Continental Shelf Lands Act.

And in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the justices will decide whether the Constitution’s due process clause bars a state from taxing trusts when beneficiaries of the trust are in-state residents. Urging the Supreme Court to take the case, the state stressed that over “$120 billion of our nation’s income flows through trusts,” making them a “vital source of tax revenue for the states.”

More orders from today’s conference are expected on Monday, January 14, at 9:30 a.m. The justices will meet again for their next conference on Friday, January 18, and could add more cases to their merits docket that day. After that, the justices’ next regularly scheduled conference is not until Friday, February 15.

This post was originally published at Howe on the Court.

[Disclosure: The law firm of Vinson & Elkins, LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Quarles and is also among the counsel on an amicus brief in support of the petitioner in Food Marketing Institute and Parker Drilling, but the author of this post is not affiliated with the firm.]

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Argument preview: Justices to consider constitutionality of residency requirements for liquor licenses

Argument preview: Justices to consider constitutionality of residency requirements for liquor licensesThe Constitution’s 21st Amendment gives states the power to regulate the distribution of alcohol into and within a state, while a doctrine known as the dormant commerce clause (derived from the Constitution’s commerce clause) bars states from discriminating against interstate commerce. Next week the Supreme Court will hear oral argument in a challenge to a […]

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Argument preview: Justices to consider constitutionality of residency requirements for liquor licenses

The Constitution’s 21st Amendment gives states the power to regulate the distribution of alcohol into and within a state, while a doctrine known as the dormant commerce clause (derived from the Constitution’s commerce clause) bars states from discriminating against interstate commerce. Next week the Supreme Court will hear oral argument in a challenge to a Tennessee law that requires anyone who wants a retail license to sell alcohol in Tennessee to have lived there for at least two years. A federal appeals court ruled that the law violates the Constitution by discriminating against out-of-state residents. Defending the law, a trade association representing the state’s liquor retailers argues that the Constitution treats alcohol differently from other products, giving states broad powers to regulate it.

The case now before the Supreme Court arose when Total Wine – whose website describes it as “the country’s largest independent retailer of fine wine,” committed to both offering “the nation’s best wine selection” and “having the lowest prices” – applied for a license to run a store in Nashville, but couldn’t satisfy the residency requirement because its owners are residents of Maryland. (In the Supreme Court version of the “Six Degrees of Separation” game, one of Total Wine’s founders, David Trone, spent $16 million of his own money in a successful campaign for Congress last year, after an unsuccessful campaign in 2016 that cost him $13 million. Trone now represents Maryland’s 6th congressional district in Congress – which is the subject of a partisan gerrymandering suit in which the Supreme Court will hear oral argument in March.)

At roughly the same time, Doug and Mary Ketchum left their home in Utah after doctors told them that the weather there was bad for the Ketchums’ disabled daughter. The family moved to Memphis to buy a liquor store, using their retirement savings, in the hope that owning their own business would give them more flexibility to care for their daughter.

Tennessee’s Alcoholic Beverage Commission recommended that liquor licenses for both Total Wine and the Ketchums be approved, but the Tennessee Wine and Spirits Retailers Association – a trade association representing the state’s liquor retailers – threatened to sue the commission if it awarded the licenses, citing the residency requirement.

The TABC went to federal district court, asking the judge to rule on whether the two-year requirement is constitutional. Both the state and the retailers argued that it is, but the district court disagreed.

The retailers appealed to the U.S. Court of Appeals for the 6th Circuit. The TABC did not appeal, and it did not participate in the oral argument in the court of appeals, although it did file a brief supporting the residency requirement. Meanwhile, the Ketchums received a liquor license and bought a store in Memphis, while Total Wine opened a 30,000-square-foot store in Knoxville in June 2018.

A divided panel of the 6th Circuit affirmed. It ruled that Tennessee’s two-year requirement discriminates against out-of-state residents and that the state could have achieved its goals of protecting the public welfare using other strategies – for example, requiring retailers to use a general manager who lives in Tennessee or regularly reviewing a retailer’s operations to make sure that it is following state laws. The retailers then went to the Supreme Court, which agreed last fall to hear the case.

In their brief in the Supreme Court, the retailers emphasize that the 21st Amendment gives states “broad latitude” to regulate retail sales of alcohol without violating the dormant commerce clause. They add that the amendment was also intended to give back the powers that states had before Prohibition, including to allow the “states to pursue policies that best fit local values and conditions, and to experiment with different approaches to the difficult problems inherent in regulating the distribution and use of alcohol.”

The retailers argue that the Supreme Court has distinguished between “core” state powers, which are protected by the 21st Amendment against suggestions that they violate the dormant commerce clause, and “non-core” powers, which are not protected. “Core” powers, the retailers explain, include the power to directly regulate sale or use of liquor within the state, while “non-core” powers try to regulate activity outside the state – for example, a ban on alcohol-related TV ads that are broadcast into the state from another state or laws that regulate prices in the state by comparison to prices at which alcohol is sold in other states.

The two-year residency requirement at issue in this case, the retailers stress, is a core power: It directly regulates the sale of liquor within Tennessee, treating out-of-state liquor the same as domestic liquor.

As a practical matter, the retailers continue, the requirement makes sense in several different ways. First, it gives state and local officials enough time to determine whether an applicant has the right character to have a liquor license. Second, it makes it more likely that the applicant will understand the needs of the community in which he plans to sell liquor. “The long-time resident who attends football games on Fridays is less likely to be duped by the drum major’s fake ID on Saturdays,” the retailers suggest. And more broadly, the retailers add, rules that make it harder to open a liquor store are generally good, because less liquor may help to reduce alcohol abuse.

In its brief on the merits, Total Wine begins by stressing that Tennessee effectively has a 10-year residency requirement for people who want to own a liquor store in Tennessee: A first-time applicant must have lived in Tennessee for at least two years, but the one-year license “cannot be renewed unless the individual has been a Tennessee resident for ten years.” Total Wine takes it as a given that the residency requirement violates the dormant commerce clause: As Tennessee itself has acknowledged, the residency requirement prevents out-of-state residents from getting liquor licenses to protect Tennessee sellers from competition. The requirement, Total Wine says, is “so manifestly protectionist” that the state hasn’t enforced it for six years and has only filed a letter in the Supreme Court agreeing with the retailers. Instead, Total Wine observes, the group that is actively defending the residency requirement in the Supreme Court is the retailers themselves, who acknowledge that their right to sue comes from their interest in not having to compete with Total Wine and the Ketchums.

Total Wine questions the rationales that the retailers have offered in defense of the residency requirement. Applicants are not actually required to have any local ties to the community where they will open a store, Total Wine observes; it is enough that they live in Tennessee. “The notion that someone living in Memphis is more in touch with Knoxville than someone living in Asheville, North Carolina, which is 250 miles closer, is silly,” Total Wine posits. And in any event, the store’s general manager and employees who will “actually check IDs and make point-of-sale decisions” will live in the community, Total Wine emphasizes.

Total Wine also points out that Tennessee does not have a similar residency requirement for bars, hotels and restaurants – which, it argues, “forecloses any argument that Tennessee is genuinely concerned about nonresidents’ suitability to own retail alcohol businesses.”

Total Wine and the Ketchums argue that the 21st Amendment doesn’t make the residency requirement constitutional. A primary goal of the dormant commerce clause, they say, is to prevent the states from protecting their own citizens and businesses at the expense of others, and the Supreme Court “has made clear that the Twenty-first Amendment was not intended to save laws that have no purpose other than protecting in-state businesses.”

Total Wine and the Ketchums also press a fallback position. Even if the Supreme Court were to agree with TWSRA, Total Wine suggests, the justices should send the case back for the lower courts to consider whether the residency requirement violates the Constitution’s privileges and immunities clause, which bars a state from treating nonresidents differently from residents. The Ketchums go a step further, noting that Tennessee’s residency requirement also “discriminate[s] against newly-arrived residents of Tennessee itself” – in conflict with the original understanding of the clause, which was to allow newly freed slaves to travel to find work and “be treated equally in their new states of residence” – and they urge the Supreme Court to decide the case on this ground if it disagrees with the 6th Circuit’s reasoning on the dormant commerce clause and the 21st Amendment.

This post was originally published at Howe on the Court.

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Supreme Court declines to intervene in Virginia redistricting dispute

Supreme Court declines to intervene in Virginia redistricting disputeToday the Supreme Court rejected a request by Virginia legislators to put lower-court proceedings in a case challenging the legislative districts drawn for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – that is, the idea that legislators relied too much on race when drawing the maps — on hold until […]

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Supreme Court declines to intervene in Virginia redistricting dispute

Today the Supreme Court rejected a request by Virginia legislators to put lower-court proceedings in a case challenging the legislative districts drawn for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – that is, the idea that legislators relied too much on race when drawing the maps — on hold until the justices rule on the case. Today’s order means that a federal district court’s efforts to create a new map, with the assistance of a voting-rights expert appointed by the court, for the state’s elections in November can move forward, even as the Supreme Court prepares to hear oral argument and eventually issue a decision that could prompt changes in that map.

The court’s order came in Virginia House of Delegates v. Bethune-Hill, which will likely be argued in March. The case is on its second trip to the Supreme Court: In 2017, the justices concluded that a lower court had applied the wrong legal standard when it rebuffed the challengers’ claims that 12 districts were the result of racial gerrymandering. Although the justices upheld one of the 12 districts, it sent the case back to the lower court for it to take another look at the remaining 11 districts.

In June of last year, the lower court struck down the districts as unconstitutional. It concluded that race was indeed the main factor dictating the boundaries for the districts, and that the legislature had not shown that it needed to try to have the exact same percentage of African-American adults in each of the “vastly dissimilar” districts at issue to comply with federal voting-rights laws.

The state’s House of Delegates appealed to the Supreme Court in September, and the justices announced in November that they would review the case – including the question whether the House of Delegates has a legal right, known as standing, to take the case to the Supreme Court.

Meanwhile, with Virginia’s off-year elections scheduled for November 2019 (and a decision from the Supreme Court not likely until May or June), the lower court continued to move ahead with plans to draw new maps, with the assistance of a voting-rights expert from California.

The lower court’s actions prompted the House of Delegates to return to the Supreme Court last month, asking the justices to put further proceedings in the lower court on hold until the Supreme Court can decide the case. The Republican legislators told the justices that the new map could and should wait, even if it means that the state has to tinker with its election deadlines so that it can take the court’s eventual ruling into account.

Both Virginia officials and the individuals challenging the original districts urged the justices to allow the lower court to proceed, characterizing the legislators’ request as a ploy to get around the decision by state election officials to keep the redistricting process moving forward. The state officials and the challengers attacked the legislators’ right to appeal to the Supreme Court at all, arguing that “nothing in Virginia law authorizes the House to represent the State’s interest.” And more broadly, they contended that the House of Delegates would not be injured if the redistricting process continued – one factor that the Supreme Court would consider in deciding whether to intervene – because the legislature does not play any role in the state’s elections. The district court has concluded that if it waits for the Supreme Court’s decision to come up with a new redistricting plan, the 2019 election will likely take place using the old districts, and the Supreme Court should defer to that judgment, the state officials emphasized.

In a brief order today, the justices refused the legislators’ request. The order indicated only that Chief Justice John Roberts, who handles emergency appeals from the geographic area that includes Virginia, had referred the request to the full court, which is a common practice in these circumstances, and that the request was denied. There were no public dissents from the order.

This post was originally published at Howe on the Court.

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Unnamed corporation seeks to file petition for review in grand jury dispute (UPDATED)

Unnamed corporation seeks to file petition for review in grand jury dispute (UPDATED)UPDATE: Just a few hours after the unnamed corporation appealed to the Supreme Court, the justices denied the company’s request to put the lower court’s order requiring it to provide the information or pay penalties on hold. The justices also vacated the temporary stay that Chief Justice John Roberts had imposed on December 23. There […]

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Unnamed corporation seeks to file petition for review in grand jury dispute (UPDATED)

UPDATE: Just a few hours after the unnamed corporation appealed to the Supreme Court, the justices denied the company’s request to put the lower court’s order requiring it to provide the information or pay penalties on hold. The justices also vacated the temporary stay that Chief Justice John Roberts had imposed on December 23. There were no recorded dissents from the order, and no explanation for the ruling. However, one factor in the decision whether to grant such a request is whether there is a “reasonable probability” that at least four justices will vote to grant review, and another is whether there is a “fair prospect” that at least five justices will agree that the decision below was wrong. Taken together, these factors suggest that the unidentified corporation could face an uphill battle in getting the Supreme Court to take up its case and reverse the D.C. Circuit’s decision.  

The unidentified corporation at the center of a clash over a grand jury subpoena that is widely believed to be connected to Special Counsel Robert Mueller’s investigation into interference in the 2016 election returned to the Supreme Court today. The company is seeking to appeal a lower-court ruling holding it in contempt for failing to comply with a subpoena requesting information. On December 23, Chief Justice John Roberts put a temporary hold on the lower court’s order requiring the company to provide the information or pay penalties. Today’s filing – which, like others in the dispute, was made under seal – indicates that the company either is asking or plans to ask the justices to review the dispute over the subpoena on the merits, eventually making redacted copies of the filing available for the public.

Although the filings in the Supreme Court are not public, a December 18 decision by the U.S. Court of Appeals for the District of Columbia Circuit reveals that the grand jury is seeking information from the corporation, which is owned by an unidentified foreign country. The corporation argued in the lower courts that it did not need to provide the information because it is immune from lawsuits in U.S. courts under the federal Foreign Sovereign Immunities Act and because doing so would cause it to violate the laws of its own country. The D.C. Circuit rejected both of those arguments, so now the company has asked (or soon plans to ask) the Supreme Court to weigh in.

Today’s filing came in the form of a motion seeking permission to take the unusual step of filing a petition for review under seal. The motion will go to the full court for consideration by all nine justices.

Petitions for review filed under seal are highly unusual but not unprecedented – for example, Djamel Ameziane, an Algerian who lived in Canada for several years, filed a petition under seal in 2010, apparently challenging his detention at Guantanamo Bay, Cuba. But as Tony Mauro reported for the National Law Journal last month, if the justices were to grant review, history suggests that they are unlikely to hold closed-door hearings in the case.

This post was originally published at Howe on the Court.

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The justices return, without Ginsburg or any new grants

The justices return, without Ginsburg or any new grantsThe justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the […]

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The justices return, without Ginsburg or any new grants

The justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the briefs and transcripts.

The justices issued a lengthy order list from last Friday’s private conference. After having added six new cases to their merits docket for the term on Friday afternoon, they did not grant any new cases today, but they did act on several cases that had been their docket for some time.

Under the Supreme Court’s cases, the standard for qualified immunity is fairly difficult for plaintiffs suing police offers for violating the plaintiffs’ constitutional rights to overcome: The question is whether the laws that would apply to a specific case are so clear that an officer would know that his actions were wrong.

Today’s unsigned ruling in City of Escondido v. Emmons arose from a standoff during a domestic dispute. Marty Emmons surprised police by leaving the apartment at the center of the standoff without any warning; when Emmons did not heed police instructions not to close the apartment door, officers pushed him to the ground.

Emmons filed a lawsuit, arguing that the officers had used excessive force against him, but a federal district court concluded that the officers were immune from suit because Emmons had not cited any cases supporting his argument that police violated the Constitution when they pushed him to the ground or placed a hand on him.

The U.S. Court of Appeals for the 9th Circuit reversed, reinstating the excessive-force claim. The city asked the Supreme Court to weigh in, arguing that the lower court’s decision “puts police officers in the impossible position of enforcing the laws without knowing whether their particular conduct is constitutional.”

Today the Supreme Court threw out the 9th Circuit’s decision entirely as to one officer, concluding that the claim against him had been erroneously reinstated. And the court instructed the lower court to reconsider the case against a second officer, explaining that the 9th Circuit should have been more specific in defining the clearly established law that the officer allegedly violated: The 9th Circuit had said only that there is a clearly established “right to be free of excessive force” when it “should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”

The justices also sent a death-penalty case, Shoop v. Hill, back to the court of appeals for another look. The inmate in the case is Danny Hill, who was convicted and sentenced to death for the brutal rape and murder of a 12-year-old boy, Raymond Fife, in Ohio in 1985. After the Supreme Court’s 2002 decision in Atkins v. Virginia, holding that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of individuals with intellectual disabilities, Hill went back to state court to argue that he was intellectually disabled. In 2005, a state trial court rejected that claim, concluding that Hill had not met the standard outlined by the Ohio Supreme Court after Atkins, and a state appeals court upheld that ruling in 2008.

But the U.S. Court of Appeals for the 6th Circuit overturned Hill’s death sentence, applying the standard for state prisoners seeking post-conviction relief in federal courts and finding that the Ohio courts had unreasonably applied the Supreme Court’s decision in Atkins. The ruling relied heavily on Moore v. Texas, a 2017 decision by the Supreme Court rejecting a Texas court’s standards for determining whether an inmate is intellectually disabled. Ohio asked the justices to review that ruling, arguing that the 6th Circuit should not have based its decision on a Supreme Court case that wasn’t decided until several years after the state courts ruled on Hill’s intellectual-disability claims.

Today the Supreme Court agreed with Ohio, in an unsigned opinion that observed that “no reader of the decision of the Court of Appeals can escape the conclusion that it is heavily based on Moore, which came years after the decisions of the Ohio courts.” Therefore, the court concluded, the 6th Circuit’s decision “must be vacated.” “On remand,” the court explained, the 6th Circuit “should determine whether its conclusions can be sustained based strictly on legal rules that were clearly established in the decisions of this Court at the relevant time.”

Eighteen years ago, in Apprendi v. New Jersey, the Supreme Court ruled that any fact – except a prior conviction – that increases the penalty for a crime beyond the maximum sentence provided by law must be submitted to a jury and proven beyond a reasonable doubt. Six years ago, the justices agreed that the Apprendi rule also applies to criminal fines. Today, in Hester v. United States, the justices declined to decide whether Apprendi applies to criminal restitution – here, an order requiring two men to pay over $300,000 in restitution to CitiGroup.

Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, dissented from the court’s announcement that it would not hear the case. Gorsuch began by describing the “increasing role” of restitution in federal criminal sentencing, noting that “between 1996 and 2016, the amount of unpaid federal criminal restitution rose from less than $6 billion to more than $110 billion” and that the failure to pay restitution orders can have serious consequences, ranging from the loss of the right to vote to reincarceration. Gorsuch then noted that the government’s arguments against applying Apprendi to restitution are also “difficult to reconcile with the Constitution’s original meaning.”

Justice Samuel Alito filed a separate opinion agreeing with the decision to deny review. Alito expressed skepticism about whether the court’s decision in Apprendi was correct in the first place. “Unless the Court is willing to reconsider” that decision, he concluded, it should not extend its reasoning in Apprendi to new areas of the law.

The justices declined to hear Lance v. Sellers, the case of Donnie Lance, who is on death row in Georgia for the 1997 murder of his former wife and her boyfriend. Lance argues that when he was sentenced, his attorney’s performance was so sub-par that it violated Lance’s constitutional right to have an attorney represent him. In particular, Lance contends, his attorney did not investigate or present any evidence that Lance suffered from a condition similar to dementia as a result of trauma to his head (including a gunshot wound) and alcohol abuse. A state court agreed that Lance should get a new trial, but the Georgia Supreme Court reversed.

Lance went to the U.S. Supreme Court, asking the justices to review his case, but today the justices turned him down, over a dissent by Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan. Sotomayor emphasized that the “jury heard no evidence whatsoever to counterbalance the State’s case for the death penalty.” Because “Lance was prejudiced by his inability to inform the jury about his impairments,” she would have granted Lance’s petition for review and ruled in his favor. Instead, she observed, “Lance may well be executed without any adequately informed jury having decided his fate.”

The justices did not act on some closely watched cases that they considered at last week’s conference, including the case of a high-school football coach fired for praying on the field after a game, a challenge to an Indiana law barring abortions based on the race, sex, or disability of the fetus and requiring fetal remains to be buried or cremated, a challenge to a New York City law banning the transport of unloaded guns outside the city limits, and a group of cases asking whether federal employment discrimination laws protect LGBTQ employees.

The justices will meet again for another private conference on Friday, January 11.

This post was originally published at Howe on the Court.

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More on today’s orders

More on today’s ordersThis afternoon the justices issued orders from their private conference earlier in the day. In addition to the two partisan-gerrymandering cases set for argument in the March session, the justices also granted review in four other new cases, involving issues ranging from “immoral” copyright marks to  vagueness in a federal criminal law. In Iancu v. […]

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More on today’s orders

This afternoon the justices issued orders from their private conference earlier in the day. In addition to the two partisan-gerrymandering cases set for argument in the March session, the justices also granted review in four other new cases, involving issues ranging from “immoral” copyright marks to  vagueness in a federal criminal law.

In Iancu v. Brunetti, the justices will take up a First Amendment challenge to a federal law that bans the registration of “immoral” or “scandalous” trademarks. The question comes to the court in the case of Erik Brunetti, who tried to register the trademark “FUCT” in connection with his clothing line; after the U.S. Patent and Trademark Office rejected Brunetti’s application, the U.S. Court of Appeals for the Federal Circuit agreed with him that the ban violates the Constitution. The federal government went to the Supreme Court, which today agreed to weigh in.

The Securities Exchange Act of 1934 prohibits false statements and significant omissions in connection with a tender offer – that is, a public offer to purchase shareholders’ stock in a corporation. In Emulex Corp. v. Varjabedian, the justices will consider whether a private plaintiff has to show that a person who made a false statement intended to do so, or whether it is enough that the false statement was made negligently.

In Taggart v. Lorenzen, the justices add another bankruptcy case to their docket. A “discharge” in bankruptcy is the bankruptcy equivalent of a fresh start: Creditors can no longer attempt to collect debts covered by the discharge, and bankruptcy laws allow courts to hold creditors who violate the discharge in contempt. The question before the court in Taggart is whether a creditor can be held in contempt if he believes in good faith that the discharge does not apply. The U.S. Court of Appeals for the 9th Circuit ruled that a creditor’s good-faith belief can excuse a violation of a discharge order, so that the creditor should not be held in contempt, even if the creditor’s belief is unreasonable.

And in United States v. Davis, the justices will once again consider whether a provision of federal law is so vague that it is unconstitutional. The question arises in the cases of Maurice Davis and Andre Glover, who were found guilty of a series of armed robberies, stealing money and cigarettes from convenience stores in the Dallas area. The counts on which they were convicted included a federal criminal law that bars the use or carrying of a gun during a “crime of violence,” which is defined as any crime that involves “a substantial risk that physical force” may be used against someone or something.

A federal appeals court struck down the law. The lower court agreed with Davis and Glover that the law was unconstitutionally vague in the wake of a Supreme Court ruling from earlier this year, which concluded that a similar definition in the immigration context was unconstitutional. The federal government asked the Supreme Court to weigh in, telling the justices that the question is “of critical importance to the prosecution of violent crime,” and today the justices agreed to do so.

More orders from today’s conference are expected on Monday morning at 9:30 am.

This post was first published at Howe on the Court.

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