Court adds four new cases to merits docket

Court adds four new cases to merits docketThis morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review. The highest-profile grant of the day came in United States v. Microsoft Corp., in which […]

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Court adds four new cases to merits docket

This morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review.

The highest-profile grant of the day came in United States v. Microsoft Corp., in which the justices agreed to decide whether an email provider who has been served with a warrant must provide the federal government with emails, even when the email records are stored outside the United States. The case arose when the federal government asked for a warrant that would require the software behemoth to disclose information about a specific email account, which the government believed was being used for drug trafficking. The government relied on the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act, which authorizes the government to use a warrant to obtain email records when it has probable cause to believe a crime is being committed. A federal judge issued the warrant, which was served on Microsoft at its headquarters in Washington state.

Microsoft refused to hand over the contents of the emails in the accounts. It argued that, because the emails were stored overseas, the SCA did not apply to them. The company was unsuccessful at the trial level, but it found a more sympathetic audience in the U.S. Court of Appeals for the 2nd Circuit, which declined to enforce the warrant. An evenly divided full court of appeals denied rehearing en banc.

The federal government took its case to the Supreme Court. The United States complained that, as a result of the 2nd Circuit’s ruling, “the government cannot require a U.S. service provider to disclose to the government, in the United States, emails and related information that the provider, for its own business reasons, has stored abroad.” Describing that holding as “unprecedented,” the government told the justices that “the decision is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.” “Under this opinion,” the government continued, “hundreds if not thousands of investigations of crimes—ranging from terrorism, to child pornography, to fraud—are being or will be hampered by the government’s inability to obtain electronic evidence.”

Today the justices granted the government’s petition. As this blog’s John Elwood reported last week, there is apparently no division among the lower courts on the question that the justices have agreed to review – suggesting that the justices regard the issue as particularly important.

In Dahda v. United States, the justices will interpret a provision of the Omnibus Crime and Safe Streets Act of 1968, which gives a judge the power to issue a wiretap order to intercept communications within the territorial jurisdiction of the court on which the judge sits. The same law, however, also allows courts to suppress those communications if (among other things) the order that approved the interception was “insufficient on its face.”

In this case, Los and Roosevelt Dahda – twin brothers – were indicted on charges that they had conspired to distribute illegal drugs. In the case against the Dahdas and their co-defendants, the federal government relied heavily on evidence obtained by tapping several cellphones, including the brothers’, pursuant to wiretap orders issued by a federal district court in Kansas. The twins argued that the evidence should be suppressed because the order allowed the government to intercept their communications even if the phones were outside Kansas. But the trial court rejected that argument, and both were found guilty; Los was sentenced to 189 months in prison, while Roosevelt was sentenced to 201 months.

The U.S. Court of Appeals for the 10th Circuit upheld the decision to allow the evidence from the cellphones to be used against the twins. The court of appeals agreed with the Dahdas that the wiretap orders were, on their face, insufficient because they allowed the government to intercept the cellphones even when they were not in Kansas. But, the court continued, the evidence from the wiretaps could still come in. The court reasoned that Congress had enacted the law to advance two “core concerns” – privacy and uniformity – that were not implicated by the Dahdas’ argument that the order exceeded the Kansas district court’s jurisdiction. Describing the question presented by their case as one of “immense practical importance for criminal defendants” because of both the growing use of wiretaps and the central role that evidence derived from wiretaps often plays at trial, particularly in conspiracy cases, the Dahdas asked the Supreme Court to review their case, which it agreed to do today. Justice Neil Gorsuch recused himself, presumably because he sat on the 10th Circuit panel that heard oral argument in the Dahdas’ case, although he was not involved in the lower court’s ruling.

Ohio v. American Express Co. has its roots in the credit-card network’s “anti-steering” rules, included as part of its contracts with the merchants who accept AmEx cards. The rules prohibit the merchants from showing a preference for other, cheaper credit cards (like Visa or MasterCard) or offering their customers discounts or incentives to use those cards. In 2010, the federal government and a group of states went to court, charging AmEx with a violation of Section 1 of the Sherman Act, which prohibits agreements that restrain trade.

To determine whether a practice violates Section 1, courts normally employ a standard known as the “rule of reason,” which looks at the history and justifications for the practice, as well as its economic costs and benefits. For the case to proceed, the plaintiffs must first show that the practice is, on its face, anti-competitive. If they can do so, the burden then shifts to the defendant to show that there is a “pro-competitive justification” for the practice.

Applying the rule of reason, the district court in this case ruled that AmEx’s “anti-steering” rules violated Section 1. The U.S. Court of Appeals for the 2nd Circuit reversed, however. For the court of appeals, it wasn’t enough that the anti-steering rules inhibited price competition among credit-card networks, which led to merchants and customers paying more. The plaintiffs would also have to show, the court ruled, that the anti-competitive effects outweighed the benefits – such as “cash-back” rewards and airline miles – to AmEx cardholders.

Ohio and a group of other states went to the Supreme Court, asking it to clarify how the rule of reason should be applied. Review was also essential, the states argued, because the question is “important to the national economy”: The 2nd Circuit, they contended, “should not have the final say over the prices of everyday retail transactions across the whole country.”

During the Obama administration, the federal government had joined the states in their lawsuit and even asked (unsuccessfully) the 2nd Circuit to reconsider its ruling. But in a brief filed in August 2017, the federal government urged the justices to deny review, even though it agreed with the states that the lower court’s decision “seriously departed from sound antitrust principles” and “leaves in place restraints that thwart price competition in an important sector of the economy and inflate the retail prices paid by all consumers.” The case, the government explained, did not meet the Supreme Court’s normal standards for granting review, particularly because neither the Supreme Court nor other lower courts had considered some of the “novel legal issues”’ in the case.

The Constitution’s double jeopardy clause protects a defendant from repeat prosecutions for the same offense. Whether the clause precludes a retrial can be a fairly straightforward question when a defendant is tried on a specific charge and then acquitted; prosecutors cannot then retry him on the same charge. But it can become more complicated when a defendant is indicted on multiple charges and consents to having them tried separately: In that case, does he benefit from an acquittal at the first trial, or do the protections of the double jeopardy clause evaporate? That is the question that the Supreme Court has agreed to review in Currier v. Virginia.

The petitioner in the case, Michael Currier, was indicted on three charges arising out of the theft of a safe that contained a large amount of cash and 20 guns: breaking and entering, grand larceny, and being a felon in possession of a firearm – the guns inside the safe. To avoid having the jury’s verdict on the theft charges tainted by the knowledge that Currier had previously been convicted of a felony, prosecutors and Currier agreed to try those two charges first, followed by a separate trial on the felon-in-possession charge. The central question in the first trial was whether Currier was involved in stealing the safe; Currier’s lawyers argued that he was not, and the jury agreed, finding him not guilty of both charges.

Prosecutors opted to move forward with the felon-in-possession charge, despite Currier’s contention that the double jeopardy clause barred them from trying to persuade a second jury that he had been involved in the theft of the safe. If Currier did not steal the guns, he emphasized, he could not have possessed them. Prosecutors relied on “the same basic theory as the first trial” – that Currier had helped to break into the home where the safe was stored and helped to steal it. This time Currier was convicted and sentenced to five years in prison.

Both the trial court and the appeals court rejected his argument that the prosecution violated his rights under the double jeopardy clause. Even if the jury in the first trial had rebuffed the theory on which prosecutors relied in the second trial, they reasoned, the double jeopardy clause was still not implicated because prosecutors had opted for two separate trials to protect Currier, rather than because they were “overreaching” – which, the lower courts contended, is one of the other evils against which the double jeopardy clause is intended to guard. Currier then went to the Supreme Court, where he told the justices that the federal courts of appeals and state supreme courts are divided on the question presented by his case. Virginia conceded that there is a “limited split of authority,” but it contended that the split is “neither a pronounced nor a mature” one – and, in any event, it added, the ruling below is correct. Now the justices will have the last word.

The justices declined to step into two related Florida death-penalty cases, over two separate dissents. In both Truehill v. Florida and Oliver v. Florida, the inmates challenged their sentences in the wake of Hurst v. Florida, the court’s 2016 decision holding that the state’s capital-sentencing scheme, in which a jury renders an “advisory sentence” but a judge must independently weigh the aggravating and mitigating factors before entering a sentence of life or death, violates the Sixth Amendment. Justice Sonia Sotomayor dissented from the denial of review in the two cases, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. In Sotomayor’s view, Truehill and Oliver had also raised “a potentially meritorious Eighth Amendment challenge to their death sentences” – specifically, the idea that a jury that only recommends a death sentence but does not have the final say violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Supreme Court, Sotomayor contended, should have sent the case back to the Florida Supreme Court for it to consider the Eighth Amendment question. Breyer also wrote a separate dissent echoing the Eighth Amendment concerns.

And in Scenic America v. Department of Transportation, an administrative-law dispute over digital billboards, the court’s newest justice, Neil Gorsuch, wrote a statement respecting the court’s denial of review that was joined by Chief Justice John Roberts and Justice Samuel Alito. Under the court’s 1984 decision in Chevron v. Natural Resources Defense Council, courts should defer to an agency’s interpretation of an ambiguous law as long as it is reasonable. This is an area of the law in which Gorsuch displayed a keen interest while a judge on the U.S. Court of Appeals for the 10th Circuit. He has suggested that the days of the “Chevron doctrine” should come to end because it is the job of a courts, rather than an administrative agency, to say what the law means. If Congress doesn’t like the courts’ interpretation, in his view, it can change it.

In 1965, Congress enacted the Highway Beautification Act to (among other things) “promote the safety and recreational value of public travel, and to preserve natural beauty.” The HBA allows the Federal Highway Administration to reduce a state’s federal highway funding if the state does not maintain “effective control” over outdoor billboards. One way for a state to maintain that “effective control” is to enter into an agreement with the FHWA that sets standards for signs on major highways. Most of the agreements currently in place bar signs with “flashing,” “intermittent” or “moving” lights. In a memorandum issued in 2007 as “guidance” for its internal staff, the FHWA interpreted the agreements to allow digital billboards.

In 2013, Scenic America – which describes its mission as seeking to “preserve and improve the visual character of America’s communities and countryside” – filed a lawsuit against the federal government, challenging the guidance on digital billboards. After the lower courts ruled for the government, Scenic America asked the justices to review the ruling against it by the U.S. Court of Appeals for the District of Columbia Circuit. The group argued that the court of appeals should not have deferred to the FHWA’s conclusion on digital billboards because it was interpreting only the agreements – to which it was a party – rather than the FBA itself.

After taking the unusual step of requesting a reply (which is optional under the court’s rules) when Scenic America failed to file one last spring – which, according to John Elwood, was only the second time they had done so since 2001 – the justices today denied review. In his three-page statement, Gorsuch suggested that the question whether “Chevron-type deference warrants a place in the canons of contract interpretation is surely open to dispute” and is “important.” But, he continued, Scenic America’s case is not the right one in which to consider that issue, because (among other things) the case is “factbound” – that is, it hinges on the application of law to specific facts. Therefore, he concluded, he was “persuaded that the proper course is to deny certiorari in this particular case even though the issues lying at its core are surely worthy of consideration in” an appropriate case in the future.

The justices will not meet for a private conference this week; their next conference is scheduled for October 27.

This case was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in Ohio v. American Express; however, I am not affiliated with the firm.]

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Argument analysis: Corporate liability for violations of international law on shaky ground

Argument analysis: Corporate liability for violations of international law on shaky groundThe Supreme Court was divided today on whether corporations can be held liable in U.S. courts under a federal law dating back over two centuries. After an hour of oral argument by three excellent advocates, and five years after they considered the question for the first time, several of the justices appeared to be ready […]

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Argument analysis: Corporate liability for violations of international law on shaky ground

The Supreme Court was divided today on whether corporations can be held liable in U.S. courts under a federal law dating back over two centuries. After an hour of oral argument by three excellent advocates, and five years after they considered the question for the first time, several of the justices appeared to be ready to hold that the Alien Tort Statute does not allow lawsuits against corporations for serious violations of international law. Some of the other justices seemed to be trying to salvage a ruling that might eventually end this lawsuit while leaving the door open for some lawsuits against corporations, but it was not at all clear that they could garner five votes for that result.

Jeffrey L. Fisher for petitioners (Art Lien)

The plaintiffs in Jesner v. Arab Bank are the victims of terrorist attacks that occurred over a 10-year period in Israel, the West Bank and Gaza. They allege that Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers. They filed lawsuits under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The ATS was enacted as part of the Judiciary Act of 1789 but was largely dormant for nearly 200 years, until a federal appeals court allowed a lawsuit against a former Paraguayan police official living in the United States to go forward on the ground that the complaint alleged torture, which violates the “law of nations.” Since then, the ATS has been frequently cited as the basis for lawsuits – against both foreign governments and multinational corporations – filed in U.S. courts seeking compensation for human-rights violations.

In 2004, the Supreme Court ruled that the universe of claims that can be brought under the ATS is limited to claims that are easily defined and commonly regarded as violations of international law. In making that determination, the justices added, courts should also consider “the practical consequences of” allowing a claim to go forward, along with whether international law would allow a particular defendant to be held liable for violating it. Eight years later, the court agreed to decide the question at the center of this case: whether corporations can be held liable under the ATS. After oral argument in that case, though, the justices asked the two sides to weigh in on whether the ATS allows lawsuits based on actions that take place in another country. In an opinion by Chief Justice John Roberts, the court concluded that the principles underlying the general presumption that U.S. law does not apply outside the United States also apply to the ATS.

Arguing for the plaintiffs, attorney Jeffrey Fisher contended that the text of the ATS leads to a “straightforward result”: a presumption that corporations can be held liable for violations of international law. Concerns about the effect that lawsuits like this one may have on the relationship between the United States and other countries, Fisher suggested, do not justify a categorical ban on lawsuits against corporations. And even when such concerns are valid, he continued, there are other legal theories – such as the presumption that the ATS does not apply to conduct that occurs outside the United States – that can be applied to address those concerns.

Justice Samuel Alito was doubtful that the potential foreign-relations implications of such suits could be so easily minimized. When courts are deciding whether to recognize claims under the ATS, he told Fisher, there will definitely be lawsuits that, if allowed to go forward, will create friction with other countries. But will there really be cases on the other end of the spectrum, Alito queried, in which dismissing the lawsuit will create foreign-relations problems?

Fisher later responded that the answer to Alito’s question was “yes,” telling the justices in his rebuttal that Israel – where several of the attacks that led to this lawsuit took place, and whose citizens are plaintiffs in the case – would certainly complain if the case were dismissed. But Roberts seemed to share Alito’s skepticism, telling Assistant to the Solicitor General Brian Fletcher (who argued on behalf of the United States) that the United States would likely be held “accountable” if it does provide a forum and a remedy in cases like this one.

Brian H. Fletcher, assistant to the U.S. solicitor general (Art Lien)

The court’s newest justice, Neil Gorsuch, was even more unsympathetic to the plaintiffs. He repeatedly pressed Fisher to explain whether the plaintiffs’ interpretation of the ATS was consistent with what Congress intended when it enacted the law in 1789, and he seemed unconvinced by Fisher’s answers. When Fisher at one point cited a seminal Supreme Court opinion from 1900 to bolster his argument, Gorsuch pushed back, asking Fisher how we could know whether that was the understanding of Congress in 1789.

A central issue at today’s oral argument was exactly how to characterize the court’s inquiry in this case: Should it look at whether there is a consensus that financing terrorism is generally accepted as a violation of international law, or instead at whether there is a consensus that corporations can be held liable for such violations? For Paul Clement, who argued on behalf of Arab Bank, the answer was the latter. And, he stressed repeatedly in his half-hour at the lectern, there is no specific and widely accepted norm of international law that would allow corporations to be held liable for financing terrorism.

Paul D. Clement for respondent (Art Lien)

Justice Sonia Sotomayor did not agree. She told Clement that there is no specific norm for holding people liable either. The norm, she said, focuses on conduct – for example, should you or shouldn’t you finance terrorism or be a pirate?

Justice Elena Kagan echoed Sotomayor’s thoughts, telling Clement that the question of whether specific conduct constitutes a violation of international law is different from the question of who can be held liable for that conduct. Other countries’ views on the liability question are certainly relevant, she acknowledged, but where do you get the idea, she asked Clement, that there has to be consensus on the liability question?

Justice Stephen Breyer also seemed to be in the plaintiffs’ camp on this issue. If you have a rule of international law that prohibits the financing of terrorism, he asked somewhat rhetorically, to whom would it apply besides corporations and the occasional billionaire?

Perhaps most crucially, the bank found a friendlier audience in Justice Anthony Kennedy, who asked relatively few questions. Unlike Sotomayor, Kagan and Breyer, Kennedy seemed unpersuaded by the plaintiffs’ efforts to distinguish between conduct and who can be held liable for that conduct. Allowing corporate liability under the ATS does impose a norm, he told Fisher, because it tells corporations how to run their business. “Norms control behavior,” he repeated, and we would be saying that corporations “now must conform their behavior. That seems to me to be a norm.”

With Kennedy having possibly shown his hand, Kagan seemed to turn to triage, hoping to avoid a ruling that establishes a categorical bar on corporate liability, even if it comes at the expense of the plaintiffs in this case. “You have plenty of things to gripe about,” she told Clement: This is a “foreign-cubed” lawsuit – one involving foreign plaintiffs, a foreign defendant and conduct that largely happened overseas. But the question of corporate liability, she continued, is not one of them. Why on earth, she asked Clement, is there any reason to distinguish between an individual and corporation when it comes to who can be held liable? To hammer her point home, she offered a hypothetical involving a corporation that uses citizens of another country for slave labor in the United States. Was Clement really saying that the ATS would not provide a basis for a lawsuit in such a case?

Clement acknowledged that Kagan’s hypothetical was a “tough” one, but he countered that the slaves could sue the individuals responsible for their plight in the United States – who, he assured Kagan, would have sufficiently “deep pockets” to satisfy a judgment for the plaintiffs.

To the extent that Kagan’s goal was a ruling for the bank – for example, because the mere fact that the bank may have routed foreign transactions in dollars through its U.S. branch does not establish the kind of connection to the United States that the Supreme Court’s earlier cases require – that leaves the door open for lawsuits against other corporations in the future, it may be a tough sell. The United States had advanced a similar argument, but made little headway today with Roberts and Alito. Kagan may have been hoping that the argument would gain more traction with Kennedy, but we likely won’t know until next year whether she succeeded.

This post was originally published at Howe on the Court.

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Justices end 4th Circuit travel-ban challenge

Justices end 4th Circuit travel-ban challengeOne of the challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” came to an end at the Supreme Court today, at least for now. In a brief order issued this evening, the justices sent Trump v. International Refugee Assistance Project back to the U.S. Court of Appeals for […]

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Justices end 4th Circuit travel-ban challenge

One of the challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” came to an end at the Supreme Court today, at least for now. In a brief order issued this evening, the justices sent Trump v. International Refugee Assistance Project back to the U.S. Court of Appeals for the 4th Circuit with instructions to dismiss the case as moot – that is, no longer a live controversy. The justices did not act on Trump v. Hawaii, the challenge that it had agreed to review along with Trump v. IRAP last June. The likely explanation for the different treatment of the two cases is that the Hawaii case challenges a provision of the March 6 order that is still in effect, but will expire later this month. This means that the justices could also dismiss that case, but even if they do, they are probably not done with the issues at the heart of both cases – whether the Trump administration’s restrictions on entry into the United States violate the Constitution or exceed the president’s authority. Those questions are likely to return to the court soon, perhaps even this term.

Both of the challenges were filed after the president’s March 6 order imposed a 90-day freeze on the entry into the United States by travelers from six Muslim-majority countries: Somalia, Sudan, Libya, Yemen, Syria and Iran. The Hawaii case also challenged a provision of the order that suspended the admission of refugees into the United States for 120 days. On September 24, as the 90-day period was due to expire, however, Trump issued a new proclamation that restricted travel to the United States by nationals from five of the six countries on his March 6 list (Somalia, Syria, Libya, Iran and Yemen) and added three more countries: North Korea, Venezuela and Chad. Trump explained that the federal government had, as directed in the March 6 order, evaluated the procedures that it used to vet travelers to the United States. Although the country as a whole “has improved its capability and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat,” he indicated, travel restrictions are still necessary for these eight countries.

One day after Trump issued his proclamation, the Supreme Court removed the travel-ban cases, which had been scheduled for oral argument on October 10, from its argument calendar. The justices also instructed the two sides to file briefs, due last week, addressing whether the challenges are moot in the wake of Trump’s proclamation and the scheduled expiration of the March 6 order’s temporary suspension of the admission of refugees on October 24.

In the briefs that they filed last week, the two sides disagreed on two central questions: Whether the cases are moot and, if they are, the fate of the lower-court decisions ruling for the challengers. The federal government insisted that the two cases “are now or soon will be moot,” because the 90-day suspension on the entry of nationals from the six Muslim-majority countries has already expired (and been replaced by the September 24 proclamation), while the 120-day suspension of the admission of refugees into the United States will expire on October 24. And the government urged the court to vacate the lower courts’ decisions, so that they would not carry any legal weight in the future, describing such a step as essential to avoid “‘legal consequences’ in future cases, on critical issues including justiciability and the President’s authority to protect national security.”

The challengers countered that the disputes are not moot and should be returned to the court’s calendar for oral argument and an eventual decision on the merits. Part of the March 6 executive order remains in place, they reasoned, while the September 24 proclamation restores and even extends many other parts of that order. But even if the disputes were moot, they argued, the court should not vacate the decisions below (which would give the challengers useful precedent to use in litigation over the September 24 proclamation), because doing so would effectively reward the government for its efforts to manipulate the litigation and the timing of the order to make the disputes moot in the first place. Instead, the challengers urged, the justices should dismiss the cases as “improvidently granted” (that is, on the ground that it was a mistake for the court to have agreed to review them), an outcome that would leave the decisions below in place, and allow the two sides to renew their dispute in litigation over the newest proclamation.

Explaining that the freeze on the entry of travelers from the six countries “‘expired by its own terms’ on September 24” and therefore “no longer presents a live case or controversy,” the court agreed with the federal government that the 4th Circuit’s ruling for the challengers should be vacated. Justice Sonia Sotomayor was the only justice to note her disagreement with this outcome; she would have dismissed the case as improvidently granted.

If the justices are indeed waiting for the 120-day suspension of the refugee program to expire on October 24, there may not be any action on the Hawaii case in the Supreme Court until then. However, litigation challenging the September 24 proclamation could be well under way in the lower courts by that point. Attorneys in both Trump v. Hawaii and Trump v. IRAP have sought to amend their original complaints (here and here) to challenge the new proclamation, while another group – the Council on American-Islamic Relations – has filed its own challenge.

This post originally appeared at Howe on the Court.

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Court issues orders from last week’s conference

Court issues orders from last week’s conferenceThe justices this morning issued orders from their October 6 conference. They did not act on the two challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” nor did they grant review in any new cases. However, they did call for the views of the U.S. solicitor general in […]

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Court issues orders from last week’s conference

The justices this morning issued orders from their October 6 conference. They did not act on the two challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” nor did they grant review in any new cases. However, they did call for the views of the U.S. solicitor general in one case and set two original-jurisdiction cases for oral argument “in due course.”

On Thursday of last week, the two sides in the dispute over the travel ban weighed in on the future of the challenges in the wake of Trump’s September 24 proclamation, which restricted travel to the United States indefinitely by nationals from eight countries (Somalia, Syria, Libya, Iran, Yemen, North Korea, Venezuela and Chad). The September 24 proclamation came as a provision of the March 6 order that suspended travel by nationals from six Muslim-majority countries (Libya, Iran, Somalia, Syria, Sudan and Yemen) was due to expire. The Supreme Court removed the two cases, which had been scheduled for oral argument today, from its oral argument calendar and directed the federal government and the challengers to file briefs addressing whether the disputes are moot in light of the September 24 proclamation and the looming expiration of another provision of the March 6 order that suspended the admission of refugees into the United States. The justices did not take any action on the disputes in their regular order list, but a separate order could come later.

The justices called for the views of the U.S. solicitor general in Apple Inc. v. Pepper, in which the computer giant has asked the Supreme Court to review a ruling by the U.S. Court of Appeals for the 9th Circuit on who qualifies as a “direct purchaser” and can therefore file an antitrust case seeking damages. The plaintiffs in the case, purchasers of iPhones and iPhone apps, contend that Apple monopolized the market for the apps; Apple counters that the 9th Circuit’s decision allowing the suit to go forward is a “dangerous” one because of the “explosive growth of electronic commerce.” There is no deadline for the federal government to file its brief in the case.

The court also put two original-jurisdiction cases, Florida v. Georgia and Texas v. New Mexico, on a path toward oral argument. As Stephen Wermiel explained nearly three years ago, original-jurisdiction cases are lawsuits – usually, although not always, between two states – filed directly in the Supreme Court. Original-jurisdiction cases frequently involve disputes over water rights, as both of these cases do. Although the Supreme Court could in theory hold a trial itself in an original-jurisdiction case, it generally will instead appoint a special master to gather evidence and put together a report, to which both sides can respond. The justices will now hold oral arguments, presumably this term, on the questions raised in the parties’ responses to reports by the special masters in the two cases.

The justices also denied review in several noteworthy cases, including al Bahlul v. United States, in which a Yemeni national held at Guantanamo Bay had asked the court to decide whether military tribunals can try detainees for violations of U.S. law, and Conagra Brands v. Briseno, a class action filed by purchasers of Wesson Oil, who allege that Conagra misleadingly marketed the oil as “100% natural” when it was not. Conagra had argued that the trial court should not certify a class of purchasers, because it is impossible to reliably identify who bought the cooking oil during the time frame at issue, but the district court certified the class, and the 9th Circuit affirmed.

This post was originally published at Howe on the Court.

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More on the December calendar

More on the December calendarThe Supreme Court released its calendar today for the December sitting, which begins on November 27. During the six days of the sitting, the justices will hear 10 oral arguments: Four of the days will feature two oral arguments each, while two days have only one oral argument scheduled each day. Highlights of the sitting […]

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More on the December calendar

The Supreme Court released its calendar today for the December sitting, which begins on November 27. During the six days of the sitting, the justices will hear 10 oral arguments: Four of the days will feature two oral arguments each, while two days have only one oral argument scheduled each day. Highlights of the sitting include the much-anticipated oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Colorado baker argues that requiring him to create custom cakes for same-sex wedding celebrations violates his right to religious freedom, and Carpenter v. United States, in which the justices will consider whether law-enforcement officials must obtain a warrant to request cell-phone records from a cell-phone service provider. The justices granted review in all of the cases on the December calendar before they returned from their summer recess; this means that the cases granted last week after the justices’ September 25 conference are likely to be scheduled for argument in the January sitting.

Here is a complete list of the cases slated for argument in the December sitting, along with brief summaries for the cases not already mentioned above:

Monday, November 27

Oil States Energy Services v. Greene’s Energy Group – A challenge to the constitutionality of an administrative process known as inter partes review, which can be used to contest the validity of patents that have already been issued.

SAS Institute v. Matal – Whether the Patent Trial and Appeal Board must issue a final written decision on all of the claims that are being challenged in inter partes review, or instead only some of them.

Tuesday, November 28

Cyan v. Beaver County Employees Retirement Fund – Whether a 1998 federal law, the Securities Litigation Uniform Standards Act, bars a state court from exercising jurisdiction over lawsuits that only allege violations of the Securities Act of 1933.

Digital Realty Trust v. Somers – Whether a lawsuit can go forward under the provision in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 protecting “whistleblowers” from retaliation when the plaintiff did not report alleged misconduct to the Securities and Exchange Commission and thus falls outside the act’s definition of “whistleblower.”

Wednesday, November 29

Carpenter v. United States

Monday, December 4

Christie v. National Collegiate Athletic Association (consolidated with New Jersey Thoroughbred Horsemen’s Association v. NCAA) – Whether the federal Professional and Amateur Sports Protection Act, which prohibits states from authorizing sports-gambling schemes, violates the Tenth Amendment, which provides that powers which are not specifically given to the federal government or taken from the states are reserved for the states.

Rubin v. Islamic Republic of Iran – Whether the Foreign Sovereign Immunities Act, which generally protects property in the United States that is owned by foreign governments from being seized but contains some limited exceptions, contains a “freestanding” immunity exception, or whether the other requirements for seizing a foreign state’s property instead still apply.

Tuesday, December 5

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Marinello v. United States — Whether a conviction for trying to impede or obstruct the administration of the tax laws requires the government to show that the defendant knew of a pending IRS action when he acted.

Wednesday, December 6

Murphy v. Smith – Under the Prison Litigation Reform Act, when a prisoner is awarded money in a civil rights lawsuit, “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendants”: Does the phrase “not to exceed 25 percent” mean that 25 percent of the money awarded to the prisoner must go toward his attorney’s fees, before the defendants must also contribute to the fees, or can the district court require a smaller portion of the attorney’s fees to come out of the prisoner’s award?

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in Oil States Energy Services and is among the counsel to the respondents in Cyan. However, I am not affiliated with the firm.]

 

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Government, challengers file on future of travel-ban litigation

Government, challengers file on future of travel-ban litigationBoth sides of the dispute over President Donald Trump’s March 6 executive order weighed in on the future of the challenges today. In filings with the Supreme Court, the federal government urged the justices to dismiss the case as moot – that is, no longer a live dispute – while the challengers told the court […]

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Government, challengers file on future of travel-ban litigation

Both sides of the dispute over President Donald Trump’s March 6 executive order weighed in on the future of the challenges today. In filings with the Supreme Court, the federal government urged the justices to dismiss the case as moot – that is, no longer a live dispute – while the challengers told the court that it should continue to hear the case.

Today’s filings came in response to an order issued by the court on September 25, one day after Trump issued a proclamation that restricted travel to the United States by nationals of eight countries indefinitely. The justices removed the challenges, which had been scheduled for oral argument on October 10, from their October calendar and directed the two sides to brief the question whether the disputes are now moot.

In a letter sent to the court today, U.S. Solicitor General Noel Francisco told the justices that both Trump v. Hawaii and Trump v. International Refugee Assistance Project “are now or soon will be moot”: Two provisions of the March 6 order – the 90-day suspension on the entry of nationals from six Muslim-majority countries and the cap on the number of refugees that can be admitted to the United States – have already expired, Francisco noted, and the 90-day suspension has already been replaced by the September 24 proclamation; anyone who feels that his rights have been violated by the proclamation  is free to file a new challenge. And another provision of the March 6 order, a 120-day suspension of the admission of refugees into the United States, is scheduled to expire on October 24. The next step for the court, Francisco argued, is to vacate the lower courts’ decisions, which would mean that they would not serve as legal precedent. Such a step is essential, Francisco contended, to avoid “‘legal consequences’ in future cases, on critical issues including justiciability and the President’s authority to protect national security.”

Attorneys for Hawaii and IRAP countered that the disputes are not moot, and they urged the justices to return the cases to their calendar for oral argument and an eventual decision on the merits. Part of the March 6 executive order remains in place, they pointed out, while the September 24 proclamation restores and even extends many other parts of that order. If anything, they added, the president indicated in a June 5 tweet that he wants to impose a “much tougher version” of the March 6 order in the future. Because the disputes are not moot, they continued, the court should not vacate the decisions below (which would give the challengers useful precedent to use in litigation over the September 24 proclamation). But even if the cases were moot, they contended, it would be “profoundly inequitable” to vacate the lower-court decisions in their favor because such an outcome would give the federal government exactly what it has been seeking all along, even though it was entirely the government’s actions that made the cases moot in the first place. At most, they concluded, the justices should dismiss the cases as “improvidently granted” (which would leave the decisions below in place) and allow the two sides to revive their dispute in litigation over the newest proclamation.

The justices are scheduled to meet tomorrow for their private conference and will likely consider today’s filings then. They could announce the next steps for the case as soon as tomorrow or (more likely) Tuesday morning.

This post was originally published at Howe on the Court.

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Divided court opens door for Alabama execution

Divided court opens door for Alabama executionIn a brief order entered this afternoon, the Supreme Court allowed the execution of an Alabama inmate to go forward. The state had asked the court to intervene after the U.S. Court of Appeals for the 11th Circuit put the execution on hold; the ruling means that the execution of Jeffrey Borden can proceed as […]

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Divided court opens door for Alabama execution

In a brief order entered this afternoon, the Supreme Court allowed the execution of an Alabama inmate to go forward. The state had asked the court to intervene after the U.S. Court of Appeals for the 11th Circuit put the execution on hold; the ruling means that the execution of Jeffrey Borden can proceed as scheduled tomorrow evening.

Borden was sentenced to death for the murders of his estranged wife and her father on Christmas Eve 1993. He shot Cheryl Borden in the back of her head in front of their children; he then shot his father-in-law in the back as he attempted to run to safety. Borden’s challenge to his execution has been a common one in death-penalty cases in recent years: He argues that the three-drug protocol that the state plans to use to execute him violates the Constitution’s bar on cruel and unusual punishment. In particular, he contends, the first drug in that protocol – midazolam – will sedate him but cannot guarantee that he will not feel excruciating pain from the drugs that follow.

A federal district court in Alabama dismissed his claims, but the 11th Circuit reversed and ordered the district court to order an evidentiary hearing. Last week the court of appeals put the execution on hold to give the lower court enough time to consider Borden’s claims. That prompted Alabama to go to the Supreme Court on Monday, where it told the justices that “Alabama has already carried out four executions using this protocol. Any questions concerning three-drug midazolam protocols have effectively been answered.”

Three justices – Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – indicated that they would have denied the state’s request, leaving Borden two justices short of the support that he needed to block his execution.

This post was originally published at Howe on the Court.

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Argument analysis: The justices get personal in probable-cause argument

Argument analysis: The justices get personal in probable-cause argumentWhen the justices took the bench this morning to hear oral argument in District of Columbia v. Wesby, there were two young children, dressed in their Sunday best, seated in the front row of the public section. The issues before the court in Wesby seemed like fairly dry ones: whether D.C. police officers had probable […]

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Argument analysis: The justices get personal in probable-cause argument

When the justices took the bench this morning to hear oral argument in District of Columbia v. Wesby, there were two young children, dressed in their Sunday best, seated in the front row of the public section. The issues before the court in Wesby seemed like fairly dry ones: whether D.C. police officers had probable cause to arrest a group of people attending a party in a vacant home; and, even if they did not, whether the lawsuit must be thrown out anyway because the officers are entitled to immunity. But the kids wound up getting an earful, as the justices spent most of the argument focusing on the facts of the (as even Nathaniel Garrett, who represented the partygoers, acknowledged) “raucous party” – which included “stripping, drinking, and marijuana smoking.” The children (and the rest of the courtroom) also got a peek into Justice Elena Kagan’s younger years, as she admitted that she may have once attended large parties where she didn’t know the host and other guests “may” have been smoking marijuana. The tea leaves were not entirely clear by the end of the hour, but it seems likely that the police officers will eventually prevail, at the very least on the ground that they are entitled to immunity.

Nathaniel P. Garrett for respondents (Art Lien)

We often think of the Supreme Court as deciding lofty issues of law. But today they were mostly mired in the facts, trying to figure out whether the officers had probable cause to arrest the partygoers, many of whom claimed that they had been invited to the party by someone named “Peaches” or “Tasty.” Arguing on behalf of the District of Columbia and the police officers, D.C. Solicitor General Todd Kim urged the justices to remember that the standard for probable cause “accounts for the practical limitations that officers face when” arresting someone, including “an inability to look into the minds of suspects offering innocent explanations for suspicious conduct.” From the officers’ common-sense perspective, he stressed, there was a “fair probability” that the partygoers were trespassing when all of the facts of the situation were viewed together: The homeowner told police that no one was supposed to be there; it looked as though no one was living there, the partygoers said that they didn’t know where “Peaches” was, and they fled when the police arrived.

But the court’s four more liberal justices saw things differently. Justice Sonia Sotomayor asked Kim why the partygoers didn’t have a right to be there. I don’t ask to look at a lease when I am invited to someone’s house, or otherwise make sure that my host has a right to be there, she told him.

Todd Kim, solicitor general of Washington, D.C. (Art Lien)

Justice Stephen Breyer echoed Sotomayor’s thoughts, noting that – at least for young people today – it’s common for someone to tell others that there is a “party at Joe’s. And before you know it, 50 people go to Joe’s house” – none of whom asks whether it is actually Joe’s house or whether they are allowed to be there. Why is this different, Breyer queried? He later added that, in his view, there’s no reason for police to believe that the partygoer would know that it isn’t Joe’s house.

Arguing for the United States in support of the city and the police officers, Assistant to the Solicitor General Robert Parker also told the justices that police officers should be able to draw inferences from the “entire constellation of facts,” without having to “peer into the head of” a suspect. He emphasized that the United States was not arguing that someone can be arrested merely because he accepted a secondhand invitation to a party without first checking to make sure that the host’s name was on the lease. But in a scenario like this one, in which the partygoers found themselves in a “compromising situation,” he suggested, the “deck is stacked” against them.

Breyer was again unconvinced. Are you saying, he asked Parker, that every time the police go to a party in a sparsely furnished house and the partygoers claim that they were invited, the police can arrest them? Parker insisted that the government was not asking for a bright-line rule, but then Justice Ruth Bader Ginsburg chimed in. “Peaches,” Ginsburg said, had said that she had just leased the house, in which case it would make sense that she didn’t have much furniture.

Justice Kagan questions Robert A. Parker, assistant to the U.S. solicitor general

Parker seemed to agree, but added that there was more to consider here: The house was in a state of “disarray.” Sotomayor (who apparently also has attended more interesting parties than I have) retorted that “disarray” is “what happens during a party.” Parker pushed back, telling the justices that the house wasn’t just in “disarray” but “very dirty,” with trash and “used contraceptives” “strewn about.” (Fortunately, one of the children was asleep by then.)

That’s when Kagan joined the fray, telling Parker that he was meeting resistance because the scene might have looked very different from the partygoers’ perspective. After recalling her own party-going days, Kagan suggested that the partygoers in a case like this one might not have known all the details. Instead, she posited, “they just know that Joe is having a party” – perhaps with some liquor or “recreational drugs” – “and they’re having a good time.”

Representing the partygoers, attorney Nathaniel Garrett tried to capitalize on the earlier line of questioning, telling the justices that even if there was a “raucous party” going on at the house, that didn’t mean that the partygoers should have known that they weren’t supposed to be there. But he didn’t get far before Chief Justice John Roberts interrupted him, reminding him that there was more going on than just a wild party.

Although he had previously seemed to side with the partygoers, Breyer also pressed Garrett, telling him to put himself in the officers’ shoes. The officers knew that the house was supposed to be vacant, it looked “sort of vacant,” and they knew that parties in vacant houses had been a problem in the neighborhood. All of that information, taken together, Breyer suggested, “leads them to think, well, these people knew it was a vacant house.” And if a “reasonable officer” would “have concluded that the partygoers knew” that the house was vacant, “that’s enough,” Breyer said.

At that point, the argument moved temporarily to a technical discussion of D.C. trespass law and what it means for a house to be “vacant” from a legal standpoint, but Justice Samuel Alito sought to sidestep the technicalities. When neighbors phoned the police to complain about the party in the vacant house, Alito asked rhetorically, did they mean “vacant” under D.C. law or instead simply that no one was living there? Garrett agreed that it was the latter.

The argument then took an interesting socioeconomic turn, as Alito asked Garrett whether police would have probable cause to arrest partygoers if a party that was otherwise identical to the one at the heart of this case instead took place in an affluent suburb of Washington. Garrett responded that it would be a “closer” case than this one, suggesting that the officers could consider the condition of the house, which might look different than in a less affluent neighborhood.

That answer didn’t sit well with Justice Neil Gorsuch, who a few minutes later asked Garrett whether officers should “really have to distinguish between parts of town in deciding whether to make an arrest.” Joining Kagan in giving us a glimpse into his own life, Gorsuch rejected any suggestion that residents in a more affluent part of town would have better furniture than their counterparts in a poorer neighborhood, so that police officers might have probable cause to arrest in the more affluent neighborhood. Gorsuch told Garrett: “We all live with folding chairs for a time when we move.”

Returning to this topic during Kim’s rebuttal, Sotomayor’s comments were more pointed, but perhaps no less personal. She told Kim that, even if she did not “completely” agree with Garrett that “the wealth of the neighborhood should make a difference,” she suspected that “if police officers arrived at a wealthy home and it was white teenagers” who told police that they had been invited to the party, “I doubt very much those kids would be arrested.” “Twenty-one people en masse arrested for going to a party,” she observed to Kim. “Does that feel right?”

Although most of the argument focused on whether the police should have arrested the partygoers, there was another topic lurking in the background that could prove pivotal: Even if the police lacked probable cause to make the arrests, can they be sued for it? Kim maintained that they cannot. He told the justices that the discussion today about probable cause, along with the dissent from four judges on the U.S. Court of Appeals for the D.C. Circuit who believed that there was indeed probable cause, “would be enough to establish that this constitutional question was not beyond the debate,” which would entitle the officers to qualified immunity.

Ginsburg asked Garrett to weigh in, reminding him that the officers could be held liable only if they either “knowingly violated the law” or were “plainly incompetent.” Garrett responded that they were “plainly incompetent,” because there was nothing to suggest to them that the partygoers knew that they weren’t supposed to be in the house.

Kagan was not necessarily persuaded. She pointed out that several cases from the local federal trial court had upheld convictions for trespass even though the defendants had offered excuses for their presence on the property. In the face of cases like those, she asked, what are police officers supposed to do?

At the end of the hour, it was hard to make any predictions with any degree of certainty: The justices who asked questions seemed divided on the probable-cause question, but Justice Anthony Kennedy did not tip his hand. (Kennedy asked only one question, but it may have been the best line of the day. Following up on a series of questions about whether some partygoers thought the celebration was either a bachelor party or a birthday party, Kennedy quipped: “So Peaches” – a woman – “is the host at a bachelor party?”) But, particularly given the concerns that Breyer voiced in the second half of the argument, it’s hard to imagine that the partygoers can get five justices to agree that the arrests were not only wrong, but so wrong that they can meet the high bar needed to overcome the officers’ immunity. A decision is expected by the end of June.

This post was originally published at Howe on the Court.

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Argument preview: Corporate liability and the Alien Tort Statute

[Editor’s note: An earlier version of this post ran on July 24, as an introduction to the blog’s symposium on Jesner v. Arab Bank, PLC, as well as at Howe on the Court, where it was originally published.] Founded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an […]

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[Editor’s note: An earlier version of this post ran on July 24, as an introduction to the blog’s symposium on Jesner v. Arab Bank, PLCas well as at Howe on the Court, where it was originally published.]

Founded in Jerusalem nearly a century ago, Jordan’s Arab Bank now has over 600 branches on five continents. The bank describes itself as “an active and leading partner in the socio-economic development” of the Middle East – a description borne out by its work with the U.S. Agency for International Development, Oxfam, Save the Children and Catholic Relief Services. The Israeli government uses the bank as a conduit to transfer taxes that it collects for the Palestinian Authority, and the United States government has characterized the bank as a “constructive partner” in its efforts to combat money laundering and the financing of terrorism. But on October 11, the Supreme Court will hear oral argument in a case brought by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that Arab Bank maintained accounts for known terrorists, accepted donations that it knew would be used to fund terrorism, and distributed millions of dollars to families of suicide bombers – known as “martyrdom” payments. The question before the justices isn’t whether the victims’ allegations are true, but instead whether the bank can be sued in U.S. courts at all.

The victims have brought their lawsuits in U.S. courts under the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Judge Henry Friendly once described the ATS, which was enacted as part of the Judiciary Act of 1789, as a “kind of a legal Lohengrin,” after the mythical German knight who arrives in a boat pulled by swans, because “no one seems to know whence it came.”

The ATS went mostly unused until 1980, when a Paraguayan doctor and his daughter filed a lawsuit in the United States against Americo Pena-Irala, a former Paraguayan police official living in New York. The plaintiffs, Joel and Dolly Filartiga, alleged that Pena-Irala had kidnapped Joel’s son and Dolly’s brother, Joelito, and tortured him to death in retaliation for Joel’s opposition to the Paraguayan government. The Filartigas argued that the ATS gave U.S. courts jurisdiction over their lawsuit; the U.S. Court of Appeals for the 2nd Circuit agreed, observing that torture violates the law of nations.

In the years since the Filartiga decision, plaintiffs increasingly relied on the ATS as the basis for lawsuits filed in U.S. courts seeking compensation for human-rights violations that occurred overseas. These lawsuits were brought not only against foreign government officials, but also against multinational corporations for their role in “aiding and abetting” human-rights violations by foreign governments.

The defendants in these lawsuits pushed back against what they saw as efforts to make the United States, as Chief Justice John Roberts once put it, the “moral custodian” of the world. In 2004, the Supreme Court indicated that the kinds of claims that could be brought under the ATS are relatively limited. In Sosa v. Alvarez-Machain, the court ruled that the ATS itself is only jurisdictional – that is, it merely gives courts the power to hear cases, but does not itself provide a cause of action. The court also concluded that the drafters of the ATS would have intended any such cause of action to come from the common law, which is not enacted by the legislature but instead formulated by judges. And the common law at the time would have allowed lawsuits alleging “a narrow set of violations of the law of nations” – violations of safe-passage guarantees, violations of an ambassador’s rights, and piracy – that could have had serious repercussions for foreign relations.

Claims brought under the ATS now, the court cautioned, should go forward only if they both are widely accepted as a violation of international norms and can be defined as specifically 18th-century wrongs like piracy. The court added two additional caveats. First, it noted, “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of” allowing litigants to rely on that norm. Second, courts considering claims under the ATS should also take into account not only whether international law recognizes the norm that has allegedly been violated, but also whether international law would allow this particular defendant to be held liable for violating it, “if the defendant is a private actor such as a corporation or individual.”

The ATS returned to the Supreme Court nearly a decade later, in Kiobel v. Royal Dutch Petroleum Co. The lawsuit was filed by Nigerians living in the United States, who alleged that Royal Dutch and its related companies had solicited help from the Nigerian government to suppress opposition from local residents to the companies’ environmental practices, leading to serious human-rights abuses by Nigerian government forces. The U.S. Court of Appeals for the 2nd Circuit dismissed their complaint, ruling that corporations cannot be held liable under the ATS. The Supreme Court agreed to review the case and even heard oral argument, but the justices then asked the two sides to address another question: whether claims can be brought under ATS for conduct that occurs in another country. In an opinion by Roberts, the court reasoned that the principles underlying the general presumption that U.S. law does not apply outside the United States extend fully to the ATS. Because the conduct at the heart of the Nigerian plaintiffs’ claims happened outside the United States, the court concluded, U.S. courts did not have the authority to hear the case.

Although the court in Kiobel did not decide whether corporations can be held liable under the ATS, that question is now squarely back before it in Jesner v. Arab Bank. The plaintiffs in the case, who are not U.S. citizens, contend that Arab Bank “violated the law of nations insofar as it financed terrorism, and also insofar as it directly and indirectly engaged in genocide and crimes against humanity.” In their view, the text of the ATS confirms that it can be used to hold corporations liable for violations of the law of nations. When Congress enacted the law, the plaintiffs observe, it was “unquestionable” that corporations could be held liable for torts, and nothing has changed since then. Indeed, although the ATS clearly puts restrictions on who can be a plaintiff in a lawsuit under the ATS – only “aliens” – it does not do so for defendants, even though Congress did limit classes of defendants in other provisions of the same act.

The history and purpose of the ATS, the plaintiffs continue, reinforce that the ATS applies equally to corporations. Congress passed the Judiciary Act, they explain, to ensure that federal courts had jurisdiction over lawsuits alleging violations of the law of nations, such as an assault on a French diplomat. There is no reason to believe that Congress wanted to avoid foreign-relations problems created by individuals but not by corporations.

More generally, the plaintiffs add, it is essential to be able to hold corporations liable to compensate for and deter ATS violations. “When an individual acts on behalf of an entity,” they reason, “it often is necessary to hold the entity accountable to provide an ‘adequate remedy’ and to meaningfully deter future misdeeds.” And in cases like these involving terrorism financing, they conclude, “corporate liability is the only meaningful option” to address the wrongdoing: Even if you can identify the individuals involved (which is itself a difficult task), “securing jurisdiction and collecting judgments against them would be even more difficult.”

The plaintiffs have support from a wide range of “friends of the court,” including a bipartisan brief from Senators Lindsey Graham and Sheldon Whitehouse. The senators emphasize that the ATS is the only avenue for civil lawsuits “against financial entities that use U.S. operations to aid terrorist attacks on foreign nationals overseas.” Indeed, they stress, specific allegations that Arab Bank “used its U.S. office to launder funds for Hamas are at the very core of this case.” And if defendants like Arab Bank cannot be sued under the ATS for their U.S.-based transactions, it will create “a dangerous gap that terrorists and their funders may exploit.”

Pointing to the Supreme Court’s 2004 decision in Sosa, Arab Bank counters that the plaintiffs’ claims can go forward only if they can show “that corporate liability is universally recognized in international law.” But this, the bank emphasizes, they have not done, as they have failed to “point the Court to a single instance of a corporation being held liable by an international tribunal under customary international law.” And indeed, the bank adds, even U.S. law does not allow corporations to be held liable in similar areas of the law – such as private lawsuits under the Supreme Court’s 1972 decision in Bivens v. Six Unknown Named Agents, seeking damages for civil-rights violations in the United States.

And the bank dismisses the senators’ suggestion “that the decision below will ‘create a troubling gap in U.S. global counterterrorism efforts’” as “pure hyperbole.” Other remedies are available to combat terrorism, it suggests, including federal criminal law – which bars material support to terrorists – and federal regulations and sanctions programs. Moreover, the bank emphasizes, those remedies allow prosecutors and regulators to exercise “discretion in an area fraught with foreign policy considerations” – discretion, they add, “to which the Plaintiffs’ bar in a private suit will pay no heed.”

The U.S. Chamber of Commerce and other business groups echo some of the bank’s arguments against corporate liability. They tell the justices that ATS lawsuits against corporations have run rampant in recent decades, pointing the court to “more than 150 ATS lawsuits against U.S. and foreign corporations doing business in two dozen industry sectors,” arising out of corporate activity in “more than 60 countries.” Allowing corporations to be sued under the ATS could create an imbalance that Congress certainly could not have intended, they add, because a related federal law – the Torture Victims Protection Act – only allows lawsuits against individuals. A ruling for the plaintiffs in this case, the business groups argue, would mean that noncitizens could bring lawsuits against U.S. corporations for torture but U.S. citizens could not.

The federal government takes a middle ground in its brief, filed in late June. It rejects the bank’s argument that the ATS forecloses corporate liability. But at the same time, it is skeptical that the lawsuits in this case should go forward, arguing that the mere fact that the bank may have routed foreign transactions in dollars through the bank’s U.S. branch does not establish the kind of connection to the United States that the Supreme Court requires. The purpose of the ATS, the government contends, is to ensure that private lawsuits for damages can be brought “in circumstances where other nations might hold the United States accountable if it did not provide a remedy.” But the “dollar’s prevalence as the currency of choice for unlawful actors does not,” the government concludes, “in itself present such a circumstance.”

The bank made similar arguments last year in its efforts to ward off Supreme Court review: It argued, among other things, that “there is no need to reach the question of corporate liability because” the plaintiffs’ claims “do not have a sufficient nexus to the United States to be litigated in U.S. courts.” But the justices nonetheless agreed to take on the case, which strongly suggests that – at least with regard to the need to tackle the corporate liability question – they disagree. How they will answer that question is less clear, but we are likely to know sometime next year.

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Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?

Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?Today may have been only the second day of the Supreme Court’s new term, but it may also prove to be one of the biggest. The justices heard oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last […]

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Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?

Today may have been only the second day of the Supreme Court’s new term, but it may also prove to be one of the biggest. The justices heard oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, agreeing with the plaintiffs that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. After roughly an hour of oral argument this morning, the justices seemed to agree that partisan gerrymandering is, as Justice Samuel Alito acknowledged, “distasteful.” But there was no apparent agreement about whether courts could or should get involved in policing the practice.

The case arose after Republicans won majorities in both houses of the Wisconsin legislature and captured the governor’s office, giving them control over the maps that were drawn after the 2010 census. In the 2012 elections, Republicans won slightly less than half of the statewide vote, which translated into 60 seats in the state’s 99-seat assembly; by contrast, Democrats won just over half of the statewide vote but garnered only 39 seats. Two years later, Republicans won 52% of the vote and 63 seats, while Democrats won approximately 48% of the vote and 36 seats.

A group of challengers argued that the new redistricting plan amounted to an unconstitutional partisan gerrymander. They contended that the new plan sought to dilute Democratic votes across the state, using two methods: “cracking,” which divides up supporters of one party among different districts so that they do not form a majority in any of them; and “packing,” which puts large numbers of a party’s supporters in relatively few districts, where they win by large margins.

The dispute went to a divided three-judge district court, which Congress has designated as the forum for redistricting challenges. That court regarded the case as an easy one. Although it may sometimes be difficult to tell when politics plays too influential a role in redistricting, the lower court conceded, this case is “far more straightforward”: The Republican-controlled legislature drafted a redistricting plan to lock in the party’s control of the state legislature, even though it could have created a different plan that would have accomplished redistricting goals without giving Republicans such a partisan advantage.

The district court may have regarded the case as a “straightforward” one, but few justices seemed to share that sentiment today. That’s not particularly surprising, because the issue of partisan gerrymandering has deeply divided the Supreme Court in the past. Thirteen years ago, the justices rejected a challenge to Pennsylvania’s redistricting plan, with four justices agreeing that courts should decline to review partisan-gerrymandering claims, because it is too hard to come up with a manageable test to determine when politics plays too influential a role in redistricting. Four other justices would have allowed courts to review partisan-gerrymandering claims. That left Justice Anthony Kennedy, who agreed that the Supreme Court should stay out of the Pennsylvania case but suggested that courts could play a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found.

Before the justices got to the merits of the case this morning, they tackled another question: whether the plaintiffs have a legal right – known as “standing” — to challenge the 2010 map at all, particularly because some of them live in heavily Democratic districts. Kennedy (whom many regard as the key vote in the case) acknowledged that the plaintiffs could not point to a specific Supreme Court case in their favor, but he asked Wisconsin Solicitor General Misha Tseytlin whether the plaintiffs might have standing if their claims were grounded in the First Amendment, rather than a right to equal protection of the laws. Kennedy seemed to suggest that they would, telling Tseytlin that such plaintiffs would have a First Amendment interest in having their preferred political party be strong, rather than weak.

Chief Justice John Roberts seemed to disagree. He told attorney Paul Smith, who argued on behalf of the plaintiffs challenging the map, that allowing plaintiffs in a partisan-gerrymandering case to challenge an entire map seemed inconsistent with the court’s rule that plaintiffs in racial-gerrymandering cases can only challenge their own districts, not the whole map.

Smith countered that the two scenarios are different: In racial-gerrymandering cases, he argued, the claim does attack a specific district; by contrast, a plaintiff in a partisan-gerrymandering claim is challenging the dilution of one party’s votes statewide.

If five justices were to agree that the plaintiffs lack standing to challenge the whole map, it would allow them to avoid ruling on the merits of the case. But it does not look as though there are five votes for that outcome – especially if, as Kennedy’s comment suggests, he would allow the lawsuit to go forward. And so most of the one-hour argument today was spent on the substance of the case, and in particular on two closely related questions: Should the courts get involved in reviewing partisan-gerrymandering cases at all; and, if so, what standard should they use to review such claims?

Roberts made clear that, in his view, the Supreme Court should stay out – for the good of its institutional reputation. He told Smith that if the plaintiffs win, the courts would be flooded with partisan-gerrymandering claims, which would all wind up at the Supreme Court because, unlike in most cases, in which the court can choose which cases to review, the court is generally required to review redistricting challenges. For example, if the Supreme Court rules for the Democrats in a case, Roberts continued, most people will not understand that the decision rests on a complicated calculus. Instead, Roberts posited, the average person will say, “That’s a bunch of baloney,” and chalk the ruling up to a preference for the Democrats. And that, Roberts stressed, will cause very serious harm to the status and perceived integrity of the Supreme Court.

Smith pushed back, predicting that any potential harm to the Supreme Court’s reputation would pale in comparison with the harm to democracy if the state prevails. Partisan gerrymandering is already bad, he cautioned, but we are on the “cusp of a more serious problem” because officials drawing redistricting maps now have access to vast amounts of data, and because the electorate is now so polarized that voting has become more predictable than ever. If you uphold the Wisconsin map, he told Roberts ominously, the court will be confronted with a “festival of copycat gerrymandering,” and people will lose faith in democracy altogether.

Roberts was unconvinced, telling Smith that his rule would take democracy away from the legislatures based on social science “gobbledygook.” The court’s newest justice, Neil Gorsuch, was relatively quiet, but he appeared to show his cards when he asked Smith to name the source of the Supreme Court’s authority to revise state redistricting maps. The court should be cautious, Gorsuch emphasized, about stepping in here.

The plaintiffs seemed to find a more receptive audience in Justice Ruth Bader Ginsburg, who told Erin Murphy – arguing on behalf of the Wisconsin legislature – that the “precious right to vote” is at the heart of this case. If legislators can “stack” a legislature, so that the result of the election is “preordained,” she queried, where is the incentive for voters to actually go to the polls? “Society should be concerned,” Ginsburg concluded.

Justice Sonia Sotomayor voiced similar concerns. She asked Murphy whether it was okay for one party to “stack the decks, so that for 10 years,” it could garner a minority of the vote but still win a majority of the seats in the legislature.

But although the justices spent some time at the 50,000-feet level, contemplating the broader implications of their ruling, much of their time was spent in the weeds, on what Justice Stephen Breyer described as another “hard issue” in the case: If courts are going to get involved with partisan-gerrymandering cases, what are manageable standards that they can apply to evaluate the claims? Breyer offered Tseytlin a five-part test that looked at, among other things, whether one party controls the legislature and the redistricting process; whether the redistricting maps create “partisan asymmetry” – that is, they do not treat the different political parties equally; and whether that asymmetry is “persistent” and extreme. I “suspect,” Breyer told Tseytlin, that the test is manageable.

Justice Elena Kagan seemed to agree. She observed that, if the technology now available to legislators is so good that legislators can draw the maps easily, the same techniques can be used on the back end to evaluate what the legislature was considering when it was drawing the maps. This is not “airy fairy,” she stressed, but instead “pretty scientific.”

Not surprisingly, Tseytlin disagreed. He maintained that the Supreme Court had already rejected some of these kinds of inquiries in its earlier cases. And he repeated a theme that would resurface throughout the hour: Any “standards” that the court might articulate to evaluate partisan-gerrymandering claims would rely heavily on statistics and battles between each side’s experts.

Murphy picked up this theme, reminding the justices that the kinds of standards that the plaintiffs have proposed have identified “false positives” – districts that appear to be the result of gerrymandering but are not – 50% of the time. What, she asked rhetorically, are legislatures supposed to do when confronted with problems like these?

Justice Samuel Alito was also skeptical. He told Smith that, although everyone has been looking for a manageable standard, one of the theories on which the plaintiffs relied – known as the “efficiency gap,” which looks at the number of votes “wasted” in each election, either because they are cast for the losing candidate or because the victorious candidate did not need them to win – was not developed until very recently. “Is this the time for us to jump into this,” Alito asked, when there are still so many questions about the theory?

Although it was obvious that, for Alito, the answer was “no,” for Smith the answer was “yes.” In the 2004 redistricting case, the court provided a blueprint for future partisan-gerrymandering challengers: They would need to give the court manageable standards to evaluate their claims. And that is exactly what social scientists have done, Smith argued. In this case, the district court used three different social-science standards and concluded that the 2010 Wisconsin map was, for purposes of partisan gerrymandering, one of the worst maps ever.

Kagan seemed to be on board with Breyer’s standard, but looked for reassurance that the courts would not be inundated with challenges to other redistricting maps in the future. Smith suggested a variety of measures that seemed to placate Kagan, but not Roberts, who complained that the kind of statistics-based predictions that Smith’s measures would call for had “been a very hazardous exercise” for the court in the past. Alito also complained about the “dozens of uncertainties” in the process that Smith was proposing.

Perhaps notably, Kennedy did not ask Smith any questions at all during Smith’s 30 minutes at the lectern – which, although there’s no way to know, would seem to bode well for the challengers. Smith seemed to direct his closing remarks straight at Kennedy, as he told the justices that if they do not act now, it could be too late. We’ll know by the end of June whether and how the court will act.

This post was originally published at Howe on the Court.

The post Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case? appeared first on SCOTUSblog.

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