Petitions of the day

Petitions of the dayThe petitions of the day are: National Institute of Family and Life Advocates v. Becerra 16-1140 Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer […]

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Petitions of the day

The petitions of the day are:

16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbertestablishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious non-profits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

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Federal government files invitation briefs

Federal government files invitation briefsIn response to requests from the Supreme Court, Acting Solicitor General Jeffrey Wall this week filed 10 briefs expressing the views of the United States. The justices sometimes invite the federal government to weigh in when they are deciding whether to review a case on the merits and, although the federal government is not directly […]

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Federal government files invitation briefs

In response to requests from the Supreme Court, Acting Solicitor General Jeffrey Wall this week filed 10 briefs expressing the views of the United States. The justices sometimes invite the federal government to weigh in when they are deciding whether to review a case on the merits and, although the federal government is not directly involved the case, the court believes that the government may have an interest – for example, when the case involves the interpretation of a federal law. Although the government’s recommendation is not dispositive, it generally carries significant weight with the justices, especially when the government recommends that review be granted.

The federal government recommended that review be granted in two cases in which it filed briefs. One of those cases was Rubin v. Islamic Republic of Iran, in which the plaintiffs obtained a $71.5 million judgment against Iran for its role in a 1997 suicide bombing in Jerusalem and are seeking to enforce the judgment by seizing ancient Persian artifacts that have been on loan to the University of Chicago since the 1930s. As a general rule, the Foreign Sovereign Immunities Act protects property in the United States that is owned by foreign governments from being seized, but there are exceptions to that rule, including when the property at issue is used for commercial activity and when the plaintiff has obtained a judgment against a “terrorist party.” The two questions that the court has been asked to consider in Rubin relate to the scope of those exceptions.

The government urges the court to grant review on one of the two questions: whether Section 1610(g) of the FSIA creates a “freestanding” immunity exception (as the plaintiffs in Rubin have argued, and as the U.S. Court of Appeals for the 9th Circuit held in Bank Melli v. Bennett, another case in which the government filed a brief this week) or whether the other requirements for seizing a foreign state’s property still apply. The government contends that the U.S. Court of Appeals for the 7th Circuit’s ruling adopting the more restrictive approach was the correct one, but it urges the Supreme Court to nonetheless grant review to resolve the conflict in the lower courts on the question. It makes clear that, although it “sympathizes” with Rubin “and other victims of terrorism, the seizure of a foreign sovereign’s property via attachment or execution can affect the United States’ foreign relations.”

The government tells the court that it should deny review on the second question presented in the case – which, as Rubin notes, boils down to the issue of whose commercial use of the property at issue counts for purposes of immunity from seizure. In the government’s view, the 7th Circuit was right that the “commercial activity” exception applies only when the foreign government uses the property that the plaintiffs want to seize; it does not apply when a third party (such as the University of Chicago) uses it. The government suggests that the court should grant review in Rubin and hold Bennett until it issues its decision on the merits.

The government has also recommended a grant in Cyan, Inc. v. Beaver County Employees Retirement Fund. The case arises from a lawsuit brought as a class action on behalf of shareholders who purchased stock in Cyan after its initial public offering, only to experience “weaker-than-expected” results. The shareholders filed their lawsuit in state court under the Securities Act of 1933, which creates causes of action for false statements made in connection with the public offering of stocks. The question presented by the case is whether a 1998 federal law, the Securities Litigation Uniform Standards Act, bars state court jurisdiction over lawsuits that, like this one, only allege violations of the Securities Act of 1933.

The government agrees with the lower court that the federal law, known as SLUSA, does not strip state courts of jurisdiction over this lawsuit. But, the government continues, the justices should nonetheless grant review of this “difficult interpretive issue that has generated confusion in lower courts.” Moreover, the government adds, adopting the lower court’s interpretation of SLUSA does not leave defendants without any recourse, because another SLUSA provision allows defendants to transfer many class actions to federal courts. The government acknowledges that Cyan had not actually tried to move this case from state to federal court, but it suggests that deciding this case on the merits would still “provide helpful guidance to lower courts” about the scope of the other SLUSA provision.

  • In BeavEx Inc. v. Costello, the federal government urged the court to deny review in a case involving the Federal Aviation Administration Authorization Act, which pre-empts state laws “related to a price, route, or service of any motor carrier .. with respect to the transportation of property.” The case was filed as a class action by former drivers for BeavEx, a courier company that specializes in same- and next-day delivery using independent contractors as its drivers. The plaintiffs in the case argued that Illinois law bars BeavEx from taking deductions out of their pay – for example, to cover uniforms, equipment and insurance; BeavEx countered –unsuccessfully in the lower courts – that the state law is pre-empted by the FAAAA. In its brief filed yesterday, the federal government agreed with the 7th Circuit that the FAAAA does not pre-empt the application of the Illinois ban on deducting the drivers’ expenses: the law, the government explains, is a generally applicable one that affects transportation companies like BeavEx only in their capacity as an employer.
  • In Ali v. Warfaa, the federal government urged the justices to reject an appeal by Yusuf Abdi Ali, who was a colonel in the Somali National Army in the late 1980s. The case was brought by another Somali national, Farham Mohamoud Tani Warfaa, who alleges that he was kidnapped from his home in Somalia and taken to Ali’s headquarters, where he was tortured and shot. In 1990, Ali left Somalia and went to Canada, where he stayed for two years before being deported (because of human rights violations); he now lives in Virginia. Ali has asked the court to consider whether (as the U.S. Court of Appeals for the 4th Circuit has ruled) foreign officials cannot receive immunity for acts that they committed as part of their official role if a plaintiff in a civil suit alleges that their conduct violated principles of international law that are so fundamental and widely accepted that no deviation from them is allowed.The federal government agreed with Ali that the 4th Circuit’s rule is wrong, but it told the court that it should still deny review because the Somali government has waived any claim that Ali might have to immunity, so that a ruling by the Supreme Court on the legal issue wouldn’t make any difference in this case. The government acknowledged, however, that the Supreme Court might want to take up the issue in an appropriate case in the future.
  • The government also advised the Supreme Court to deny a cross-appeal by Warfaa, who argues that he should be allowed to sue Ali under the Alien Tort Statute, a 1789 law that gives U.S. courts jurisdiction over lawsuits filed by noncitizens alleging wrongs committed in violation of international law. In 2013, the Supreme Court held that the general presumption against applying U.S. law outside the country applies to the ATS, but Warfaa contends that the case has enough of a connection to the United States for him to sue Ali here. The federal government noted that Warfaa’s petition is conditioned on the Supreme Court granting Ali’s appeal, which the government has recommended against. In any event, the government added, Warfaa can bring most of his claims under another federal law, the Torture Victim Protection Act, which will “further the purpose he invokes in this case of preventing the United States from being viewed as harboring or providing a safe haven from human rights abusers.”
  • When states have legal grievances against other states, the Constitution allows them to file lawsuits directly in the Supreme Court. However, the Supreme Court has determined that it should only allow those lawsuits to go forward in “appropriate cases” – considering, for example, the seriousness of the state’s claim and whether an alternative forum is available. In New Mexico v. Colorado, New Mexico hopes to sue Colorado in the Supreme Court; as the federal government explained, New Mexico claims that “contamination from abandoned mines in Colorado has polluted New Mexico’s rivers and caused economic harm.” But the federal government told the justices that this case is not one that belongs in the Supreme Court. It emphasized that New Mexico has other ways to seek relief; indeed, the state has another lawsuit pending in the lower federal courts, and there is “substantial overlay” between the two actions.
  • The government also recommended a denial in the maritime law case Bulk Juliana v. World Fuel Services. The case arose when World Fuel Services delivered fuel to a ship while it was in Singapore; the contract specified that it would be governed by U.S. maritime law, including for maritime liens, no matter where the fuel was supplied. When it was not paid for the fuel, WFS went to federal court in the United States while the ship was docked in New Orleans, seeking to put a maritime lien on the ship. The district court ruled that, under Singapore law, the contract was valid, including the choice-of-law provision, and granted the request for the lien, relying on federal maritime law. The U.S. Court of Appeals for the 5th Circuit affirmed, rejecting the argument that the federal statute allowing the lien did not apply under the choice-of-law provision, and Bulk Juliana asked the justices to review the case. The federal government urged the court to deny review, arguing that the 5th Circuit’s decision “does not conflict with any precedent of this Court, and it is consistent with the decisions of both other circuits that have directly addressed the same issue.”
  • Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. National Collegiate Athletic Association arise from New Jersey’s efforts to allow sports gambling at its casinos and race tracks. When the NCAA filed a lawsuit, a federal district court agreed that a 2014 law passed by the New Jersey legislature authorizing the gambling was pre-empted by the Professional and Amateur Sports Protection Act, which bars states from authorizing sports-gambling schemes, and the U.S. Court of Appeals for the 3rd Circuit affirmed. New Jersey Governor Chris Christie asked the Supreme Court to weigh in on whether Congress can bar the states from authorizing sports gambling, or whether the PASPA instead 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. The federal government recommended that review be denied, telling the justices (among other things) that the 3rd Circuit’s decision is correct and does not conflict with any ruling by any other court of appeals.
  • Eric Loomis, the petitioner in Loomis v. Wisconsin, was charged with serving as a driver in a drive-by shooting and eventually pleaded guilty to attempting to flee a traffic officer. Loomis’ presentence report included a risk assessment to which both the state and the trial court referred at the sentencing hearing. The trial court sentenced Loomis to six years in prison and five years of supervision, telling him that the risk assessment had identified him as a “high risk to the community.” The court declined to order probation because of “the seriousness of the crime and because” Loomis’ “history” and “history on supervision, and the risk assessment tools that have been utilized, suggest that” Loomis was at an “extremely high risk to re-offend.” Loomis argues that the trial court’s reliance on the risk assessment violated his constitutional right to due process. The government recommended that review be denied. It conceded that a “sentencing court’s use of actuarial risk assessments raises novel constitutional questions that may merit this Court’s attention in a future case.” But it should not take up the question now, the government continued, because – among other things – the risk assessment in Loomis’ case was used for “narrow purposes only,” the Wisconsin Supreme Court’s ruling is consistent with that of the only other state supreme court to have reached the question, and Loomis would have received the same sentence even without the risk assessment.

The parties to these cases will have the opportunity to file briefs responding to the government’s recommendations. The justices are likely to announce whether they will grant review before their summer recess.

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. The Supreme Court conducted an overdue spring cleaning this week, trimming half the relists from its rolls. But in the process, losers outnumbered winners bigly. Sure, it was a good day for patent nerds as the court granted in one-time relist SAS Institute Inc. v. Lee, 16-969, presenting the question […]

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Relist Watch

John Elwood reviews Monday’s relists.

The Supreme Court conducted an overdue spring cleaning this week, trimming half the relists from its rolls. But in the process, losers outnumbered winners bigly. Sure, it was a good day for patent nerds as the court granted in one-time relist SAS Institute Inc. v. Lee, 16-969, presenting the question whether Patent Trial and Appeal Board opinions must address all the claims of patent challengers in inter partes review, or just the ones the Board feels like addressing. But it was bad news for one-time capital-case relist Neal v. Kubsch, 16-1021, regarding the admissibility of hearsay evidence. And worst of all, the court denied the big knot of seven state tax retroactivity cases that was on its fourth relist. I have it on good authority that those cases were exquisitely exciting, too. Aside from those nine relists, all the cases from last week are back again, although their chances aren’t getting any better.

That brings us to this week’s three-ish new relists. Our first entry, Husted v. A. Philip Randoph Institute, 16-980, is another in a string of recent high-profile voting cases. Husted involves what steps states may take to maintain accurate voter-registration lists under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. Those laws prohibit states from removing “the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote,” but provide that a state must remove a voter if the voter (1) does not respond to a confirmation notice the state sends them and (2) then does not vote in the next two general federal elections. Since 1994, Ohio has sent voters who do not vote over a two-year period a confirmation notice; if they do not respond to that notice and do not vote over the next four years (including two more federal elections), Ohio removes them from the list of registered voters and requires them to reregister.

A divided panel of the U.S. Court of Appeals for the 6th Circuit held that the state’s process violates the NVRA because Ohio uses the failure to vote as the “trigger” for sending voters a confirmation notice. The question presented is: Does the NVRA permit Ohio to use a voter’s inactivity as a reason to send a confirmation notice to that voter under the NVRA and HAVA? The issue appears to be splitless, but the petition is supported by four amicus briefs, including one filed by 15 states.

The second case likewise comes to us from Ohio, and likewise involves review of a decision of a divided panel of the 6th Circuit. Hooks v. Langford, 16-886, involves a Detroit gang member who was convicted of murder, apparently on an aiding-and-abetting theory, because of a mistake in the jury instruction that may have eliminated the required mens rea showing for the defendant. The state courts affirmed the conviction, but a federal district judge granted habeas relief, finding that the jury was never told that it must find that the defendant acted with a purpose to kill, and the error was not harmless. A divided panel of the 6th Circuit, over Judge Danny Boggs’ dissent, affirmed. The Supreme Court then granted Ohio’s petition, vacated the judgment, and remanded for further consideration in light of Davis v. Ayala, which held that under the Antiterrorism and Effective Death Penalty Act, a federal court must not only conclude that the state courts’ application of the law regarding the underlying error was unreasonable; it must also conclude that the state courts’ application of harmless error was unreasonable. On remand, the same divided panel of the 6th Circuit again affirmed the district court’s grant of habeas relief, concluding that “there was no state court review of harmless error.” The court ordered the defendant, Mark Langford, retried or released within 180 days.

In its petition, Ohio makes no bones that it is only requesting summary reversal; it doesn’t allege any split on the trial court’s error or on the 6th Circuit’s conclusion that the state courts hadn’t conducted harmless-error review. So now we — and more to the point, Mark Langford—must wait to see whether some justice is preparing a summary reversal or a dissent from denial of cert (or perhaps just is taking a little longer to make up his or her mind). The court called for the record back on April 19, so obviously, someone is looking at the case pretty closely. The state has filed an application to stay the 6th Circuit’s mandate, because the 180-day period ends June 13. By my calculation, the court has three more relists to finish up with whatever it’s doing before either it will need to grant the stay or its failure to do so would show its hand.

That brings us to the third-ish relist, which isn’t really a relist for this week. Pavan v. Smith, 16-992, was relisted on Monday for yesterday’s conference. But later the same day, the court requested the record in the case. The record arrived the very next day (it’s electronic), but there’s no way that the law clerk(s) have had time to review it and write up a supplemental memo. So it’s almost certain the case will be hanging around until at least next week. The issue is a juicy one. Under Arkansas law, when a married woman gives birth, her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s genetic parent because the child was conceived by target=”_blank”artificial insemination. The Supreme Court of Arkansas held below that, notwithstanding Obergefell v. Hodges, Arkansas may treat married same-sex couples differently. The question presented is: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate. Because some poor clerk is now poring over the record, don’t freak out when the name and docket number aren’t on Monday’s orders list; we’ll have to wait for the next conference to find out what is up with this one.

That’s all for this week. Tune in next week to find out what fresh hell awaits us in June.

Thanks to Bryan U. Gividen for compiling the cases in this post.

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New Relists

Husted v. A. Philip Randoph Institute, 16-980

Issue: Whether 52 U.S.C. § 20507 permits Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002.

(Relisted after the May 18 conference)

 

Hooks v. Langford, 16-886

Issues: (1) Whether a state court unreasonably applied this court’s cases under Section 2254(d)(1) when it held that a misplaced adverb in one jury instruction on state law did not violate federal due process; and (2) whether the U.S. Court of Appeals for the 6th Circuit properly held that the alleged instructional error was harmful and that Davis v. Ayala was irrelevant to the harmless-error inquiry.

(Relisted after the May 18 conference)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11 and May 18 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Rios v. United States, 16-7314 

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21, April 28, May 11 and May 18 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11 and May 18 conferences)

  

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11 and May 18 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11 and May 18 conferences)

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Petition of the day

Petition of the dayThe petition of the day is: 616 Croft Ave., LLC v. City of West Hollywood 16-1137 Issue(s): Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management District, Dolan v. City of Tigard and Nollan v. California Coastal Commission.

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Petition of the day

The petition of the day is:

16-1137

Issue(s): Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

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Petition of the day

Petition of the dayThe petition of the day is: Santander Holdings USA, Inc. v. United States 16-1130 Issue: Whether foreign tax payments should be treated as “expenses” and thereby factored into a court’s pre-tax profitability calculation under the economic substance test.

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Petition of the day

The petition of the day is:

16-1130

Issue: Whether foreign tax payments should be treated as “expenses” and thereby factored into a court’s pre-tax profitability calculation under the economic substance test.

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Petitions to watch | Conference of May 25

Petitions to watch | Conference of May 25In its conference of May 25, 2017, the court will consider petitions involving issues such as whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their […]

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Petitions to watch | Conference of May 25

In its conference of May 25, 2017, the court will consider petitions involving issues such as whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate; whether 52 U.S.C. § 20507 permits Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002; and whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

16-886

Issues: (1) Whether a state court unreasonably applied this court’s cases under Section 2254(d)(1) when it held that a misplaced adverb in one jury instruction on state law did not violate federal due process; and (2) whether the U.S. Court of Appeals for the 6th Circuit properly held that the alleged instructional error was harmful and that Davis v. Ayala was irrelevant to the harmless-error inquiry.

16-980

Issue: Whether 52 U.S.C. § 20507 permits Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002.

16-1023

Issues: (1) Whether the district court had jurisdiction to expand upon its previously ordered remedy after the state filed its notice of appeal; and (2) whether the district court exceeded the bounds of its equitable discretion by partially invalidating election results, abrogating several provisions of the state constitution and ordering a special election – all without any discussion of the competing equities.

16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular-service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in Racketeer Influenced and Corrupt Organizations Act conspiracy cases, and likewise whether the court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

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Wisconsin seeks stay as back-up plan in partisan gerrymandering case

Wisconsin seeks stay as back-up plan in partisan gerrymandering caseIn March, the state of Wisconsin asked the Supreme Court to review a decision by a three-judge court striking down the redistricting map that the Republican-controlled legislature created after the 2010 census. The three-judge court concluded that the map was the result of partisan gerrymandering – that is, purposely drawing district lines to favor one […]

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Wisconsin seeks stay as back-up plan in partisan gerrymandering case

In March, the state of Wisconsin asked the Supreme Court to review a decision by a three-judge court striking down the redistricting map that the Republican-controlled legislature created after the 2010 census. The three-judge court concluded that the map was the result of partisan gerrymandering – that is, purposely drawing district lines to favor one party and put another at a disadvantage. The justices will consider the case at their June 8 conference, but yesterday Wisconsin added a new request to the case, asking the Supreme Court to block a court order requiring the state legislature to create a new plan by the fall.

The issue of partisan gerrymandering has deeply divided the Supreme Court. In 2004, the justices considered a challenge to Pennsylvania’s redistricting plan and issued a split ruling that resolved little. Four justices believed that courts should never review partisan gerrymandering claims, reasoning that it is too hard to come with a manageable test to determine when politics plays too influential a role. Four other justices believed that courts should be able to review partisan gerrymandering claims. Justice Anthony Kennedy provided the crucial vote in the case: He agreed that the Supreme Court should stay out of the Pennsylvania case, but he left open the door for courts to have a role in reviewing partisan gerrymandering cases in the future if a workable standard could be found.

In yesterday’s filing, Wisconsin officials argued that the lower court’s decision striking down the redistricting plan was so “fundamentally flawed” that the justices should consider reversing it without even asking for additional briefing or oral argument. If the court were take that route by the end of June, the state explained, there would be no need for the justices to put the lower court’s order on hold.

But if the Supreme Court instead opts to review the case on the merits, with oral argument in the fall, the state continued, then it should spare the state from having to comply with the lower court’s deadline. Blocking the order would save the state the trouble of creating a new map until the Supreme Court can rule on the validity of the old plan, the state claims. And if the state ultimately prevails – as it believes it will – it can simply continue to use the old plan. Moreover, even if the Supreme Court were to agree with the challengers that the plan must go, the court’s eventual opinion will provide “significant guidance” for the state to use in drafting a new redistricting plan. “It would be a serious intrusion,” the state concludes, on the state’s “sovereign resources to force it to redraw a map half-blind, guided by only an indisputably-flawed district court opinion.”

The state has asked the justices to consider its new request “contemporaneously” with its brief seeking review of the lower court’s decision, so the court likely will not act on yesterday’s request until after June 8. However, the court could ask the challengers to respond to the request before then.

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Petition of the day

Petition of the dayThe petition of the day is: Evergreen Partnering Group, Inc. v. Pactiv Corp. 16-1148 Issues: (1) Whether Eastman Kodak Industry Co. v. Image Technical Services, Inc.‘s Rule 56 standard or the more stringent “tends to exclude the possibility of independent action” standard articulated in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. applies where the […]

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Petition of the day

The petition of the day is:

16-1148

Issues: (1) Whether Eastman Kodak Industry Co. v. Image Technical Services, Inc.‘s Rule 56 standard or the more stringent “tends to exclude the possibility of independent action” standard articulated in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp. applies where the alleged conduct, unlike in Matsushita, is not inherently pro-competitive and is not economically or otherwise irrational; and (2) whether the U.S. Court of Appeals for the 1st Circuit improvidently applied the heightened “tends to exclude” test to the petitioner’s concerted refusal to deal claim, in circumstances in which it is not warranted, and thus erroneously denied the plaintiff its right to have its case heard by the trier of fact.

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Petition of the day

Petition of the dayThe petition of the day is: Bloomingdale’s, Inc. v. Vitolo 16-1110 Issue: Whether the Federal Arbitration Act preempts a state-law rule that prohibits enforcement of a pre-dispute arbitration agreement with respect to a state statutory claim unless the agreement allows the claimant to pursue representative relief on behalf of all similarly-situated individuals.

The post Petition of the day appeared first on SCOTUSblog.

Petition of the day

The petition of the day is:

16-1110

Issue: Whether the Federal Arbitration Act preempts a state-law rule that prohibits enforcement of a pre-dispute arbitration agreement with respect to a state statutory claim unless the agreement allows the claimant to pursue representative relief on behalf of all similarly-situated individuals.

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Today’s orders

Today’s ordersToday the Supreme Court declined to wade into the battle over “soft money,” unregulated contributions to political parties. The Bipartisan Campaign Finance Reform Act of 2002, also known as “McCain-Feingold” after the senators who spearheaded it, bars state and local political parties from using soft money for activities related to federal elections – for example, […]

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Today’s orders

Today the Supreme Court declined to wade into the battle over “soft money,” unregulated contributions to political parties. The Bipartisan Campaign Finance Reform Act of 2002, also known as “McCain-Feingold” after the senators who spearheaded it, bars state and local political parties from using soft money for activities related to federal elections – for example, vote-registration drives and get-out-the-vote efforts for elections that include candidates for federal offices. The law also bars the use of soft money to raise money for activities related to federal elections.

The Louisiana Republican Party challenged the bans, arguing that they violated the First Amendment by prohibiting the party from using soft money for activities that are not coordinated with federal candidates or campaigns. A special three-judge panel rejected that claim, and today the justices agreed to let that ruling stand. Groups supporting campaign finance reform hailed the announcement as an important step to limit the influence of major donors. Justice Clarence Thomas and the court’s new justice, Neil Gorsuch, indicated that they would have heard oral argument in the case and reviewed it on the merits.

The justices added only one new case to their merits docket for next term: SAS Institute v. Lee, a patent case involving the process known as “inter partes review.” That process allows a third party to ask the U.S. Patent and Trademark Office to take another look at claims in patents that have already been issued and, if the office concludes that they are not patentable, cancel them. The question now before the justices is whether the law requires the Patent Trial and Appeal Board, which conducts the review, to issue a final written decision with regard to all of the claims that are being challenged, or instead only some of them.

The justices denied review in a group of cases that asked the court to weigh in on Michigan’s repeal of the Multistate Tax Compact, but they once again did not act on a number of high-profile petitions, including a challenge by a Colorado baker who argues that his religious beliefs would be violated by creating cakes for same-sex weddings and a California case that asks the justices to rule on whether the Second Amendment protects the right to carry a handgun for self-defense outside the home. The gun rights case, Peruta v. California, has been relisted for this Thursday’s conference, so an order in the case could come as soon as Tuesday, May 30, at 9:30 a.m.

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