This week’s oral argument audio now available on Oyez

This week’s oral argument audio now available on OyezOyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in: Hamer v. Neighborhood Housing Services of Chicago National Association of Manufacturers v. Department of Defense Jesner v. Arab Bank, PLC

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This week’s oral argument audio now available on Oyez
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

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Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdiction

Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdictionThe scope of the federal government’s regulatory authority under the Clean Water Act has long been controversial. Stretch it too far, and it appears that the federal government can regulate every puddle in the nation; narrow it too much, and the government is left unable to protect the quality of interconnected waters. For that reason, […]

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Argument analysis: Wading through the “themeless pudding” of Clean Water Act jurisdiction

The scope of the federal government’s regulatory authority under the Clean Water Act has long been controversial. Stretch it too far, and it appears that the federal government can regulate every puddle in the nation; narrow it too much, and the government is left unable to protect the quality of interconnected waters. For that reason, each time the government has promulgated a rule defining the act’s geographic scope — as it did in the 2015 “Clean Water Rule” — lawsuits quickly follow. In yesterday’s argument in National Association of Manufacturers v. Department of Defense, the Supreme Court considered the preliminary question of whether those lawsuits should be filed in district courts or courts of appeals.

Rachel P. Kovner, assistant to the U.S. solicitor general (Art Lien)

As described in my preview, the case hinges on a provision of the statute, 33 U.S.C § 1369(b)(1), which specifies seven actions by the Environmental Protection Agency that are reviewable directly in the courts of appeals. The petitioners — a varied group including the National Association of Manufacturers, states, environmental groups, electric utilities and agricultural companies — all argue that the Clean Water Rule does not fall within any of the EPA actions on the list, so lawsuits challenging the rule should be filed in district court. The United States, along with fellow-respondents the Natural Resources Defense Council and the National Wildlife Federation, argues that the rule does fall within the provisions that trigger direct appellate review. Specifically, the government argues, the rule falls within Subsection (E), which covers EPA actions “in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title”; as a fallback, the government also argues that the rule is within the scope of Subsection (F), which covers EPA actions “in issuing or denying any permit under section 1342 of this title.”

The oral argument focused largely on whether the government’s position can be squared with the text of Section 1369(b)(1). Timothy Bishop, arguing for NAM, began by stressing that his position is consistent with the act’s text: The Clean Water Rule simply isn’t an “effluent limitation or other limitation,” and it is not promulgated “under” section 1311. Justice Sonia Sotomayor, however, suggested — echoing the government’s position — that perhaps the rule is such a limitation. After all, she noted, “[o]nce you define navigable waters you say where an effluent applies or doesn’t.” Rachel Kovner of the U.S. solicitor general’s office, representing the United States, stressed that point: The rule is a limitation because it restricts where pollutants can be discharged. As for whether the rule was promulgated “under” section 1311, Justice Elena Kagan asked whether “under” could mean “regulating actions taken under” section 1311 — which would seem to cover the rule. Kovner also argued that the rule is “under” section 1311 in the sense that it was promulgated under the authority of section 1311. On the whole, however, the government’s textual argument faced an uphill battle, and it was likely not a good sign for Kovner when Justice Stephen Breyer remarked that it was “hard to agree” with the government’s position.

Timothy S. Bishop for petitioner (Art Lien)

But if the petitioners had the textual advantage, they faced harder questions about whether the statute makes any sense under their reading. As Justice Ruth Bader Ginsburg pointed out, NAM’s position means that individual permit decisions go to appellate courts, whereas broad definitional pronouncements like the Clean Water Rule go to the district court, and “[o]ne would think it would be just the other way around.” Bishop conceded that he was not aware of any explanation for why Congress had assembled this seemingly incongruous list of actions that get direct appellate review. This led Kagan to ask whether Bishop’s position was that the court should “just resign [itself] to thinking of this as having no particular rationale. Congress said what it said … It’s all a themeless pudding and that’s just what it is?” Bishop said yes, stressing that the best way to handle seemingly puzzling language is to stick to the text. Ohio Solicitor General Eric Murphy, sharing argument time with Bishop, suggested that a unifying theme for the list is that each of the seven subsections refers to a specific action that Congress was instructing the EPA to take. Perhaps those, above others, were actions that Congress thought should receive direct appellate review.

The argument also brought to the surface two broader and competing concerns. On one hand, several questions pointed out the inefficiency of NAM’s approach. Chief Justice John Roberts, for example, observed that NAM’s position calls for district courts around the country to review the agency’s entire administrative record, and then for appellate courts to review the exact same record “all over again.” This led him to ask, “You’ll agree that it’s inefficient, won’t you?” In response, both Bishop and Murphy suggested that their rule actually fosters efficiency by creating a clearer jurisdictional test. Kovner resisted that characterization, arguing that, to the contrary, the government’s rule “is very clear”: It just asks “does it impose a limitation under section 1311?”

But would the government’s position raise problems under the due process clause? This argument, which Murphy identified, flows from Section 1369(b)(2)’s limitation on future litigation: When direct appellate review applies, Section (b)(2) says that challenges must occur within 120 days of the relevant action, and litigants may not later challenge the EPA decision at issue if they could have obtained review within that 120-day period. What if, Roberts asked, the government brings an enforcement action against “a farmer in Kansas” who doesn’t think he’s within the Act’s geographic scope — is that farmer barred from challenging the rule as a defense? Kovner explained that the Supreme Court has previously left open whether applying a similar bar in enforcement situations would raise due-process concerns. She urged that if due-process concerns did exist (she did not take a firm position on whether they did), the solution would be to construe Section (b)(2) narrowly — an approach that doesn’t bear on the proper meaning of Section (b)(1). Justice Neil Gorsuch seemed to suggest, however, that this due-process carve-out from appellate jurisdiction dimmed the government’s purportedly bright-line rule.

Finally, the justices inquired about the case’s potential mootness. The Trump administration has already proposed rescinding the Clean Water Rule, and Kovner opined that this case would become moot if that rescission occurred before the court reached a decision. But, as both she and Bishop pointed out, the administration’s repeal process will take an unknown amount of time, and this controversy remains live in the interim.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is 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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Argument transcripts

Argument transcriptsThe transcript in National Association of Manufacturers v. Department of Defense is on the court’s website, as is the transcript in Jesner v. Arab Bank, PLC.

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Argument transcripts

The transcript in National Association of Manufacturers v. Department of Defense is on the court’s website, as is the transcript in Jesner v. Arab Bank, PLC.

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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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Argument analysis: Alito and Ginsburg spar over the rules for timely appeals

Argument analysis: Alito and Ginsburg spar over the rules for timely appealsTuesday’s argument in Hamer v. Neighborhood Housing Services of Chicago was unique in several respects. Justice Stephen Breyer did not ask any questions; Justices Anthony Kennedy and Neil Gorsuch, ordinarily active participants in arguments who stake out staunch positions, asked about one issue each. Justices Ruth Bader Ginsburg and Samuel Alito dominated the argument, with […]

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Argument analysis: Alito and Ginsburg spar over the rules for timely appeals

Tuesday’s argument in Hamer v. Neighborhood Housing Services of Chicago was unique in several respects. Justice Stephen Breyer did not ask any questions; Justices Anthony Kennedy and Neil Gorsuch, ordinarily active participants in arguments who stake out staunch positions, asked about one issue each. Justices Ruth Bader Ginsburg and Samuel Alito dominated the argument, with the latter challenging Hamer’s counsel, Jonathan Herstoff, and the former offering numerous comments and questions to support Herstoff’s argument and to guide his answers on issues.

The question in this case is the proper characterization and application of Federal Rule of Appellate Procedure 4(a)(5)(C), which allows a district court to extend the time for an appellant to file a notice of appeal on a showing of excusable neglect or good cause, but for no more than 30 more days beyond the prescribed time of 30 days from entry of the judgment appealed from. The question for the Supreme Court is whether that rule is jurisdictional and whether it is subject to waiver, forfeiture or equitable exception.

Herstoff led with his core argument – the time limit cannot be jurisdictional because it appears in a court-promulgated rule of procedure rather than a congressionally enacted statute. Justice Elena Kagan and Alito wondered whether that must be true and why. Herstoff responded that it derives from Article III of the Constitution, which grants Congress the power to set the jurisdiction of the lower federal courts, and from a “long line of cases,” including, as Ginsburg highlighted, Justice Clarence Thomas’ decision in Bowles v. Russell. Ginsburg then set Herstoff to discuss the 1991 amendments to 28 U.S.C. § 2107(c), which removed from the statute an identical 30-day limit on extensions of time; under her questioning, Herstoff argued that Congress made significant, more-than-technical changes, eliminating statutory support (and jurisdictionality) from the extension limit.

There followed a lengthy exchange in which Alito suggested that a (nonjurisdictional) “mandatory claim-processing rule” must have some teeth, such as by the rulemaker making the rule not subject to waiver or forfeiture. Ginsburg jumped in to suggest that calling a claim-processing rule mandatory means it must be applied where raised, but not that it is non-waivable or non-forfeitable; otherwise, it would be the same as declaring the rule jurisdictional, which judge-promulgated rules are not supposed to do. Alito then asked who the extension limit in Rule 4(a)(5)(C) is designed to protect; when Herstoff responded that it protects both the appellee and the court of appeals, Alito asked why the court of appeals cannot “put some teeth” in the rule, not by labeling it jurisdictional, but by placing a “thumb certainly on the scale” in applying it. This followed on Kennedy’s one line of questioning from earlier in the argument, as to whether the parties could ask the district court not to enter judgment on an order, lengthening the time for appeal for months or years. Herstoff argued that the doctrines of extraordinary circumstances and bad faith limit such gamesmanship.

Damien Stewart, representing Neighborhood Housing Services of Chicago, argued that NHSC could win if the court labels the rule either jurisdictional, as the U.S. Court of Appeals for the 7th Circuit did, or a mandatory claim-processing rule that was not waived or forfeited, because it was asserted in pre-merits briefing in the court of appeals. But Ginsburg jumped on NHSC’s failure to notify the district court that the order was defective in giving Hamer 60 additional days to appeal. This “allows the defendant to create a trap” by not raising the erroneous extension until more than 30 days have passed and it is too late for the district court to correct its error. Stewart responded that expecting NHSC to alert the district court to the error “ignores the realities of litigation,” in which parties focus more closely on the rules at certain points than at others. NHSC did not look at the rules immediately upon receiving the district court time-extension order (a point that drew an incredulous “You didn’t have an opportunity to look at the rules?” from Ginsburg). Instead, it focused on and argued the unlawful extension in pre-merits briefing in the court of appeals, although only after an erroneous docketing statement that mistakenly conceded the timeliness of the notice of appeal. This caused Justice Sonia Sotomayor and Ginsburg to take turns asking whether forfeiture resulted from the docketing statement conceding jurisdiction and NHSC not raising timeliness until tipped off by the court of appeals; Stewart insisted that cases support his argument that parties preserve issues by raising them in merits briefing and that NHSC had done so even earlier in this case, in pre-merits briefing.

Ginsburg, Kagan and Sotomayor then pushed Stewart on the meaning and significance of the 1991 amendments to Section 2017(c), whether legislative history showed that the removal of the statutory extension limit was inadvertent, and whether Congress could change a rule from jurisdictional to nonjurisdictional by amending the statute. Gorsuch’s lone question came near the end of Stewart’s argument, asking why NHSC did not raise the timeliness issue by cross-appealing the extension order to the 7th Circuit, which Hamer argued in briefing constituted forfeiture. Stewart replied that a cross-appeal is necessary only when an appellee seeks to enlarge its own rights or to lessen the appellant’s rights. Gorsuch responded that NHSC did seek to lessen Hamer’s rights, by extinguishing the longer time to file the appeal that the district court had granted. Stewart argued that the district court lacked the authority to grant that extra time, which relieved NHSC of the duty to cross-appeal.

On rebuttal, Herstoff argued to Alito that NHSC forfeited the challenge to the time extension after the 30th day from the original appeal deadline, the point at which any appeal no longer could be timely under the rules. Alito questioned how requiring appellees to call an invalid time extension to the attention of the court and the opposing party conforms to the adversarial system; Herstoff argued a prevailing party must do so if it wishes to enforce Rule 4(a)(5)(C). Herstoff then engaged with Chief Justice John Roberts and Alito about what NHSC would have cross-appealed from and about the distinction between the court of appeals affirming the district court’s grant of summary judgment and the court of appeals dismissing Hamer’s appeal as untimely. He argued, referring to Gorsuch’s earlier question to Stewart, that NHSC sought to limit Hamer’s rights by getting the court to dismiss the appeal without considering whether summary judgment was properly granted.

The tenor and amount of questioning hints at a court inclined to reverse the 7th Circuit’s conclusion that Rule 4(a)(5)(C) is jurisdictional; Kagan even asked Stewart whether he no longer was relying on that position. Only Alito seemed dubious of Herstoff’s arguments, and his concerns focused more on waiver and forfeiture than jurisdictionality. One open issue, raised by Ginsburg early in Herstoff’s argument, is whether the justices will resolve the waiver and forfeiture issue or remand for the 7th Circuit to conduct that analysis, as it did not do previously.

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This week’s oral argument audio now available on Oyez

This week’s oral argument audio now available on OyezOyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in: Epic Systems Corp. v. Lewis Sessions v. Dimaya Gill v. Whitford Jennings v. Rodriguez District of Columbia v. Wesby Class v. United States

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This week’s oral argument audio now available on Oyez
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.

The court heard argument this week in:

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Court releases December argument calendar

Court releases December argument calendarToday the Supreme Court released its calendar for the December sitting, which begins on November 27 and includes 10 hours of oral argument. Here is the schedule: Monday, November 27: Oil States Energy Services v. Greene’s Energy Group SAS Institute Inc. v. Matal Tuesday, November 28: Cyan v. Beaver Cty. Employees Retirement Fund Digital Realty […]

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Court releases December argument calendar

Today the Supreme Court released its calendar for the December sitting, which begins on November 27 and includes 10 hours of oral argument. Here is the schedule:

Monday, November 27:

Oil States Energy Services v. Greene’s Energy Group

SAS Institute Inc. v. Matal

Tuesday, November 28:

Cyan v. Beaver Cty. Employees Retirement Fund

Digital Realty Trust v. Somers

Wednesday, November 29:

Carpenter v. United States

Monday, December 4:

Christie v. NCAA (consolidated with NJ Thoroughbred Horsemen’s Assn. v. NCAA)

Rubin v. Iran

Tuesday, December 5:

Masterpiece Cakeshop v. Colorado Civil Rights Comm’n.

Marinello v. United States

Wednesday, December 6:

Murphy v. Smith

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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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