O’Connor announces she has dementia

O’Connor announces she has dementiaRetired Justice Sandra Day O’Connor, the first woman to sit on the Supreme Court, announced today that she has been diagnosed with dementia, “probably Alzheimer’s disease,” and that as her “condition has progressed,” she is “no longer able to participate in public life.” O’Connor’s announcement came one day after Jessica Gresko of the Associated Press […]

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O’Connor announces she has dementia

Retired Justice Sandra Day O’Connor, the first woman to sit on the Supreme Court, announced today that she has been diagnosed with dementia, “probably Alzheimer’s disease,” and that as her “condition has progressed,” she is “no longer able to participate in public life.”

O’Connor’s announcement came one day after Jessica Gresko of the Associated Press reported that O’Connor had “stepped back from public life” and that her sons had cleared out O’Connor’s office and files at the Supreme Court. O’Connor announced in 2005 that she planned to step down from the court in no small part to spend more time with her husband, John, who was suffering from Alzheimer’s disease. John O’Connor died in 2009.

In a letter released by the Supreme Court’s Public Information Office that was addressed to “Friends and Fellow Americans,” the 88-year-old O’Connor was characteristically straightforward. Noting that “many people have asked” about her health and activities and that she wanted “to be open about these changes,” O’Connor wrote that “[s]ome time ago” she was “diagnosed with the beginning states of dementia.”

O’Connor used her announcement today as an opportunity to promote civics education, a cause that she has supported since her retirement 12 years ago. O’Connor explained that she feels “so strongly about the topic because I’ve seen first-hand how vital it is for all citizens to understand our Constitution and unique system of government, and participate actively in their communities.”

In particular, O’Connor put in a plug for iCivics, the online civics education program that she started eight years ago. The program, she observed, currently reaches half of the young people in the United States, but she insisted that it should reach them all. “There is no more important work than deepening young people’s engagement in our nation.” And although she “can no longer help lead this cause,” she wrote, she urged “new leaders to make civic learning and civic engagement a reality for all.”

O’Connor indicated that she would remain in Phoenix, “surrounded by dear friends and family.” “While the final chapter of my life with dementia may be trying,” she wrote, “nothing has diminished my gratitude and deep appreciation for the countless blessings in my life.” “As a young cowgirl from the Arizona desert,” she concluded, “I never could have imagined that one day I would become the first woman justice on the U.S. Supreme Court.”

Chief Justice John Roberts released a statement responding to O’Connor’s letter. He described himself as “saddened” by the news but “not at all surprised that she used the occasion of sharing that fact to think of our country first” by calling for an increased commitment to civics education. “Although she has announced that she is withdrawing from public life,” Roberts stressed, “no illness or condition can take away the inspiration she provides for those who will follow the many paths she has blazed.”

This post was originally published at Howe on the Court.

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Masterpiece Cakeshop question returns to the Supreme Court

<em>Masterpiece Cakeshop</em> question returns to the Supreme CourtThe Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs. Less than five months ago, the justices issued a narrow ruling in the case of Jack Phillips, a […]

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<em>Masterpiece Cakeshop</em> question returns to the Supreme Court

The Supreme Court has once again been asked to weigh in on the case of a baker who refused to make a cake for a same-sex marriage celebration because doing so would violate the baker’s religious beliefs.

Less than five months ago, the justices issued a narrow ruling in the case of Jack Phillips, a devout Christian and Colorado baker who told a gay couple that he would not design a cake for their upcoming festivities. The decision, authored by now-retired Justice Anthony Kennedy, emphasized that the Colorado administrative agency that had ruled against Phillips had treated him unfairly by being too hostile to Phillips’ religious convictions. However, the Supreme Court did not resolve a key question in the case: When can sincerely held religious beliefs like Phillips’ trump neutral laws that apply to everyone?

In a petition for review filed today, an Oregon couple has asked the Supreme Court to return to that question. The couple, Melissa and Aaron Klein, owned a bakery in the Portland suburbs that they called Sweetcakes by Melissa.

In 2013, Rachel Bowman-Cryer and her mother, Cheryl, visited Sweetcakes to order a wedding cake for Rachel’s upcoming marriage to her fiancée, Laurel. When Aaron Klein learned that two women would be getting married, he told Rachel and Cheryl that the bakery did not make cakes for same-sex ceremonies because the Kleins believe that a marriage is limited to the union between a man and a woman.

Rachel and Laurel filed a complaint with a state administrative agency, arguing that the Kleins had refused to serve them because of their sexual orientation. The agency concluded that the Kleins had violated state laws barring businesses that serve the public from discriminating based on sexual orientation, and it awarded the Bowman-Cryers $135,000. A state appeals court upheld that ruling, rebuffing the Kleins’ argument that applying the state’s anti-discrimination laws to them violates the First Amendment by compelling them to “express a message—a celebration of same-sex marriage—with which they disagree.”

The Kleins have now asked the Supreme Court to take up their case. Invoking language from the majority’s decision in Obergefell v. Hodges, finding a constitutional right to same-sex marriage, they urge the justices to grant review “to ensure that the constitutionally guaranteed rights to exercise one’s religious beliefs and to express those beliefs are not subordinated to a new majoritarian effort to” attack the convictions of individuals who oppose same-sex marriage “based on decent and honorable religious or philosophical premises.”

The Kleins – whose lawyers report that they were forced to close their bakery in 2013 because business had declined – add that their case is an even better candidate for review than Masterpiece Cakeshop’s was because some of the “uncertainties about the record” in Masterpiece Cakeshop are not present here – for example, the Kleins only sell custom cakes, so there is no question about whether the Kleins refused to sell the Bowman-Cryers a custom cake or instead refused to sell them any cake at all.

The state will now have approximately a month to respond to the Kleins’ petition, although it could seek a 30-day extension. Depending on the precise timing of the briefing, if the justices opt to grant review, they could potentially hear oral argument in the case and issue a ruling before the end of June.

This post was originally published at Howe on the Court.

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SCOTUS Map: October 2018

SCOTUS Map: October 2018The Supreme Court justices strove to calm the frayed nerves of a nation in the aftermath of the Justice Brett Kavanaugh’s tumultuous confirmation fight, attempting to restore a narrative about a nonpartisan and independent court that had been damaged with each twist of the hearings. Justices Sonia Sotomayor and Elena Kagan, making a joint appearance […]

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SCOTUS Map: October 2018

The Supreme Court justices strove to calm the frayed nerves of a nation in the aftermath of the Justice Brett Kavanaugh’s tumultuous confirmation fight, attempting to restore a narrative about a nonpartisan and independent court that had been damaged with each twist of the hearings.

Justices Sonia Sotomayor and Elena Kagan, making a joint appearance at a Princeton alumnae conference on October 5, spoke at length on the court’s role as a neutral arbiter in an era of intense partisanship. “Part of the court’s strength and part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures in this country right now,” Kagan stated. “It’s an incredibly important thing for the court to guard—this reputation of being fair, of being impartial, of being neutral, and not simply an extension of the terribly political process and environment that we live in.”

Conceding that the votes in many closely-watched 5-4 rulings could be predicted by looking at the party of the president who nominated the justice, Kagan noted that the lack of a swing vote could harm the court’s image:

It’s been an extremely important thing for the court that in the last 30 years, starting with Justice [Sandra Day] O’Connor and continuing with Justice [Anthony] Kennedy, there’s been a person who people found the center, or people couldn’t predict in that sort of way, and that’s enabled the court to look as though it was not owned by one side or another, and was indeed impartial and neutral and fair. It’s not so clear, I think, going forward, that sort of middle position – it’s not so clear whether we’ll have it. All of us need to be aware of that, every single one of us, and to realize how precious the court’s legitimacy is. We don’t have an army, we don’t have any money. The only way we get people to do what we say that they should do is because people respect us, and respect our fairness.

Sotomayor offered a further reason for the politicization of the court: “[O]ur political parties have adopted the academic discussions [about originalism vs. the living constitution] that judges were having for the longest time about how to interpret laws and the Constitution… And when the political parties adopted that language as their own, they’ve now superimposed that on the court, so originalists get identified as the choice of a certain group of politicians, and non-originalists, the choice of another group, of a different party.” This, Sotomayor said, “has hurt the court a lot.”

The justices then spoke of civility as both a moral good and a long-term strategy. “[W]e have to rise above partisanship in our personal relationships,” Sotomayor said, urging the audience to find the good in each other, as the justices do. “We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share. Elena’s relationship with Justice Scalia is well-known … and Neil Gorsuch and I are doing a lot of work together promoting civic education in the United States. Our openness about respecting one another is an example that’s important for us both to maintain and promote.”

Being civil does not mean that the justices compromise their fundamental approaches to interpreting the Constitution, Sotomayor continued, which sometimes leads to the 5-4 decisions that the public finds so divisive. “But we do manage to agree on lots of things and to the extent we can avoid ruling in such expansive ways as to foreclose continued conversation, I think we have a chance of holding on to our legitimacy.”

Kagan admitted that there is “a little bit of self-interest going on here, because we live in this world where it’s just the nine of us.” Harboring grudges or ill will toward a colleague would backfire in future cases, she stated, “since you have not much of a chance of persuading that colleague to come along with what you think is the right thing to do.” According to Kagan, “we all have a vested interest in having good relations with each other, and that is part of what maintains our good behavior.”

Video of Sotomayor and Kagan’s talk is available online via Circa. Coverage comes from NJ.com, North Jersey Record, The Daily Princetonian and Bloomberg.

Two days later, after Kavanaugh had been confirmed and sworn in as the newest justice, Sotomayor spoke at an American Academy of Arts & Sciences event in Cambridge, Massachusetts, where she carefully tiptoed around questions about the dynamics of the court going forward. While acknowledging that the arrival of a new colleague is like having a “new child in the family” — “It disrupts everything, doesn’t it? It changes your world” — the justice was quick to emphasize that all families agree on some things and disagree on others. “That family conversation, when there’s a new member, changes… There are those who will ask me to predict what that change will be. That’s not a useful enterprise, at least for me, because I have to watch this development and participate in it with as open a mind as I can have.” Video of Sotomayor’s remarks is accessible on the American Academy of Arts & Sciences website.

Echoing Sotomayor’s description of the court as a family, Chief Justice John Roberts compared gaining a new justice to having a “new in-law at Thanksgiving dinner” at an October 16 appearance at the University of Minnesota Law School.

Notably, Roberts took a few minutes ahead of the scheduled conversation to deliver prepared remarks addressing “the contentious events in Washington of recent weeks.”

I will not criticize the political branches, we do that often enough in our opinions. But what I would like to do briefly is emphasize how the judicial branch is and how it must be very different.

I have great respect for our public officials. After all, they speak for the people, and that commands a certain degree of humility from those of us in the judicial branch who do not. We do not speak for the people, but we speak for the Constitution. Our role is very clear: We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them.

That job obviously requires independence from the political branches. The story of the Supreme Court would be very different without that sort of independence. Without independence, there is no Brown v. Board of Education. Without independence, there is no West Virginia v. Barnette, where the court held that the government could not compel schoolchildren to salute the flag, and without independence there is no steel seizure case, where the court held that President Truman was subject to the Constitution, even in a time of war.

Now, the court has from time to time erred, and erred greatly. But when it has, it has been because the court yielded to political pressure, as in the Korematsu case, shamefully upholding the internment during World War II of Japanese American citizens.

Those of us on the court know the best way to do our job is to work together in a collegial way. I am not talking about mere civility, although that helps. I am instead talking about a shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know in each step that we are in this together.

There is a concrete expression of that collegiality in a tradition at the court that has prevailed for over a century. Before we go onto the bench to hear an argument in a case, and before we go into the conference room to discuss a case, we pause for a moment and shake each other’s hand.

It’s a small thing, perhaps, but it is a repeated reminder that, as our newest colleague put it, we do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation. And I want to assure all of you that we will continue to do that to the best of our abilities, whether times are calm or contentious.

CNN, The Washington Post and POLITICO summarized Roberts’ remarks, as did Andrew Hamm for this blog. C-SPAN posted video of the appearance.

At an October 19 ceremony celebrating the expansion of the Judicial Center in Newton County, Georgia, Justice Clarence Thomas also spoke about judicial independence. “Judicial independence is critical to liberty and to justice. In our great country, the judiciary is not a puppet for those in power, nor is it the engine for pioneering social change,” the Rockdale Newton Citizen and the Associated Press quoted him as saying. “Rather, it is a safeguard against tyranny, and an assurance of neutral arbiters for those seeking the protection of the law.”

Although the sitting justices projected a united front, retired Justice John Paul Stevens felt no such obligation to match his message to his former colleagues’. Stevens made headlines at an October 4 Institute for Learning in Retirement event in Boca Raton, Florida, when he said that Kavanaugh’s temperament disqualified him from a seat on the court. The justice, who had favorably quoted Kavanaugh in one of his books, explained: “At that time, I thought he had the qualifications for the Supreme Court should he be selected… I’ve changed my views for reasons that have no relationship to his intellectual ability or his record as a federal judge. He’s a fine federal judge who should have been confirmed when he was nominated. But his performance during the hearings caused me to change my mind… [As several commentators have noted], he has demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.”

Asked how Kavanaugh’s hearings differed from Thomas’, Stevens replied: “There is nothing Clarence did during the hearings that would disqualify him from sitting in cases after he came on the court… As a person, I am very fond of him. He is a very decent and likable person. You cannot help but like Clarence Thomas, which I don’t think necessarily would be true of this particular nominee.” Coverage comes from the Palm Beach Post and the New York Times. Video of the event is available on C-SPAN.

On the same day of Stevens’ lecture, five of his former coworkers — Roberts, Thomas, Justice Samuel Alito, Kagan and Gorsuch — attended the unveiling of a statue of Justice Antonin Scalia at George Mason University. Coverage of that event comes from the Associated Press and the Washington Post. Justice Stephen Breyer, meanwhile, appeared at The Atlantic Festival to discuss Shakespeare and the law. Andrew Hamm of this blog covered Breyer’s talk. Footage comes from C-SPAN.

In other events this month:

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Court issues new circuit assignments

Court issues new circuit assignmentsThirteen days after Brett Kavanaugh was confirmed as the Supreme Court’s newest associate justice, the court today issued a new set of circuit justice assignments, which take effect immediately. The new list was the second one in the past few months, replacing the assignment list issued after Justice Anthony Kennedy retired on July 31, leaving […]

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Court issues new circuit assignments

Thirteen days after Brett Kavanaugh was confirmed as the Supreme Court’s newest associate justice, the court today issued a new set of circuit justice assignments, which take effect immediately. The new list was the second one in the past few months, replacing the assignment list issued after Justice Anthony Kennedy retired on July 31, leaving the court with only eight justices.

A circuit justice is primarily responsible for emergency requests (for example, an application to block an execution or allow it to go forward) from the geographic area covered by his or her circuit, as well as more mundane matters – for example, a request to extend the time to file a petition for review. However, justices can and often do refer significant emergency requests to the full court, as Justice Neil Gorsuch did earlier this month with a request by Native Americans in North Dakota to block the state from enforcing a law requiring voters to show an ID that includes a residential street address.

Lawyers who practice regularly before the court are often keenly interested in circuit justice assignments because the justices can have different policies on when they will grant extensions to file petitions for review: The late Justice Antonin Scalia, for example, virtually never granted them, while now-retired Justice John Paul Stevens would generally grant not just one but two 30-day extensions as long as they were timely filed.

In August, Chief Justice John Roberts had assumed responsibility for the 9th Circuit, which covers nine states (Alaska, Arizona, California, Hawaii, Idaho, Oregon, Montana, Nevada and Washington) plus Guam and the Northern Mariana Islands. Justice Elena Kagan is now the circuit justice for the 9th Circuit; the 6th and 7th Circuits, for which Kagan had previously been responsible, are now covered by Justices Sonia Sotomayor and Brett Kavanaugh, respectively. All of the other circuit-justice assignments remain the same.

The chief justice generally is responsible for three circuits: the District of Columbia Circuit, the Federal Circuit and the 4th Circuit. Some of the other circuit assignments reflect the justices’ links to different parts of the country. Justice Ruth Bader Ginsburg, for example, is responsible for the 2nd Circuit, which includes New York, where she grew up and lived before moving to Washington to become a judge, while Justice Stephen Breyer, who sat on the 1st Circuit before he became a justice, is the circuit justice for that circuit. Justice Samuel Alito, who was born in New Jersey and formerly served as judge on the 3rd Circuit, which includes New Jersey, continues to serve as the circuit justice for the 3rd Circuit (along with the 5th Circuit), while Justice Clarence Thomas, a Georgia native, is the circuit justice for the 11th Circuit, which includes Georgia. Kagan, however, is a native New Yorker who has spent most of her adult life in Chicago, Massachusetts, and Washington.

This post was originally published at Howe on the Court.

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Government returns in climate change lawsuit (UPDATED)

Government returns in climate change lawsuit (UPDATED)UPDATE: On Friday, October 19, Chief Justice John Roberts put discovery and the trial on hold until the plaintiffs respond to the government’s request and the justices can rule on that request. The plaintiffs’ response is due on Wednesday, October 24, at 3 p.m. In July, the Supreme Court declined to intervene in a lawsuit filed by […]

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Government returns in climate change lawsuit (UPDATED)

UPDATE: On Friday, October 19, Chief Justice John Roberts put discovery and the trial on hold until the plaintiffs respond to the government’s request and the justices can rule on that request. The plaintiffs’ response is due on Wednesday, October 24, at 3 p.m.

In July, the Supreme Court declined to intervene in a lawsuit filed by a group of 21 children and teenagers who allege that they have a constitutional right to a “climate system capable of sustaining human life.” The justices rejected the federal government’s request to block discovery and a trial until the U.S. Court of Appeals for the 9th Circuit could rule on the government’s petition seeking to have the case dismissed or, at a minimum, to block discovery and the trial temporarily. Today the Trump administration returned to the Supreme Court, asking it once again to put discovery and the trial – now scheduled for the end of October – on hold.

The case was originally filed in 2015 against the Obama administration. The plaintiffs argue that the federal government’s actions are causing a “dangerous climate system,” and they have asked a federal district court in Oregon to order various federal agencies to prepare and implement a remedial plan to phase out fossil-fuel emissions.

When the government asked the justices to step in over the summer, they rejected the request, which they described as “premature.” But the justices also seemed to express some skepticism about the “breadth” of the plaintiffs’ claims, calling them “striking” and observing that there are “substantial grounds for difference of opinion” on whether those claims belong in court at all. The justices instructed the district court to “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the” federal government’s other pending motions, which could result in dismissal of some or all of the plaintiffs’ claims.

The government is now back at the court, telling the justices that earlier this week the district court “declined to meaningfully narrow” the plaintiffs’ claims, instead rejecting various government motions that would have ended the case. The government is now asking the court to order the district court to “end this profoundly misguided suit” or, at the very least, review the district court’s rulings allowing the case to go forward; moreover, the government again urges, the Supreme Court should put discovery and the trial on hold while it considers these requests. There would be no real harm to the plaintiffs from doing so, the government stresses, because the plaintiffs are claiming that they have been harmed by the cumulative effects of carbon dioxide emissions over several decades.

The government’s request, signed by U.S. solicitor general Noel Francisco, goes to Chief Justice John Roberts, who currently serves as the circuit justice for the 9th Circuit. Roberts can act on the government’s application immediately or refer it to the full court.

This post was originally published at Howe on the Court.

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Chief Justice Roberts emphasizes Supreme Court’s independence

Chief Justice Roberts emphasizes Supreme Court’s independenceSpeaking at the University of Minnesota Law School in Minneapolis on Tuesday afternoon, Chief Justice John Roberts took a few minutes to address the “contentious events in Washington of recent weeks.” “I will not criticize the political branches,” Roberts began, choosing instead to “emphasize how the judicial branch is—how it must be—very different.” Unlike public […]

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Chief Justice Roberts emphasizes Supreme Court’s independence

Speaking at the University of Minnesota Law School in Minneapolis on Tuesday afternoon, Chief Justice John Roberts took a few minutes to address the “contentious events in Washington of recent weeks.”

“I will not criticize the political branches,” Roberts began, choosing instead to “emphasize how the judicial branch is—how it must be—very different.” Unlike public officials, members of the judicial branch “do not speak for the people, but we speak for the Constitution.”

“Our role is very clear,” Roberts maintained: “We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them.”

To do this job, Roberts stressed, “obviously requires independence from the political branches.” As exemplars of cases requiring independence, he cited school-desegregation case Brown v. Board of Education, free-speech case West Virginia State Board of Education v. Barnette and Youngstown Sheet & Tube Company v. Sawyer, a case on the limits of presidential authority during war.

“The court has from time to time erred and erred greatly,” Roberts admitted, “but when it has, it has been because the court yielded to political pressure,” as in Korematsu v. United States, upholding the internment of Americans of Japanese descent during World War II.

In addition to judicial independence, Roberts stressed collegiality, “which he described as a “shared commitment to a genuine exchange of ideas and views through each step of the decision process. We need to know at each step that we are in this together.”

A “concrete expression of that collegiality” is found “in a tradition that has prevailed for over a century.” Before taking the bench for oral argument or entering the conference room to discuss cases, the justices shake each other’s hands.

Roberts did not mention Justice Brett Kavanaugh by name, but Roberts did quote his newest colleague as saying that “we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.”

“I want to assure all of you,” Roberts said in closing, “that we will continue to do that to the best of our abilities whether times are calm or contentious.”

Following these remarks, Roberts spoke as planned with Professor Robert Stein, former dean of the law school. Among other topics, Roberts restated his opposition to television coverage of oral arguments, even as he acknowledged potential benefits. In response to one student following up on Roberts’ earlier statement about not speaking for the people, Roberts clarified that he meant that the court’s role is to support viewpoints not necessarily held by the majority.

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Quiet day for orders

Quiet day for ordersThis morning the Supreme Court issued orders from the justices’ private conference last week – the first one in which the court’s newest justice, Brett Kavanaugh, participated. On Friday afternoon, the justices had announced that they had granted review in one new case, involving the application of the First Amendment to the private operator of […]

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Quiet day for orders

This morning the Supreme Court issued orders from the justices’ private conference last week – the first one in which the court’s newest justice, Brett Kavanaugh, participated. On Friday afternoon, the justices had announced that they had granted review in one new case, involving the application of the First Amendment to the private operator of a public-access television channel. The justices did not add any new cases to their docket with today’s order list, and they did not act on several of the higher-profile cases that they were slated to consider last Friday.

The justices denied review in a group of cases filed by inmates who were sentenced as “career offenders” under federal sentencing guidelines. They had argued that their sentences were unconstitutional, citing a 2015 case in which the court struck down a federal provision requiring a longer sentence for certain defendants who have been found guilty of violating the ban on gun possession by felons. The court concluded that the provision, which applied to defendants who had already been convicted of three violent felonies, was too vague to be constitutional, because it included any felony that “involves conduct that presents a serious potential risk of injury to another.” Last year the Supreme Court ruled that a similar provision in the U.S. Sentencing Guidelines was not unconstitutionally vague because the guidelines in effect when the defendant was sentenced were only advisory, not mandatory. The inmates whose petitions for review were denied today contended that, unlike the inmate in last year’s case, they should be resentenced because the guidelines were mandatory when they were sentenced.

The justices today declined to take up their challenges, over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg. Sotomayor emphasized that, no matter what her colleagues think about how broadly the court’s 2015 ruling should apply, “this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case,” Sotomayor concluded, “we ought to hear.”

The justices also denied review in ConAgra Grocery Products v. California and The Sherwin-Williams Co. v. California, arising from California’s efforts to hold three companies liable for their role in making, selling and promoting lead paint. In their briefs asking the justices to weigh in, the companies complained that they had been ordered to pay “hundreds of millions of dollars to remediate a decades-old problem” based on their speech – that is, their efforts to promote the use of lead paint in homes.

The justices did not act on either the challenge to the “peace cross,” a memorial to soldiers killed in World War I that stands on public land in the Washington, D.C., suburbs, or a case involving the constitutionality of mandatory bar dues for lawyers. The justices will meet again for a private conference on Friday, October 26, with orders from that conference likely either that afternoon or on Monday, October 29.

This post was originally published at Howe on the Court.

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Justices take on one new case

Justices take on one new caseThe justices met today for their private conference – their first with the Supreme Court’s newest member, Justice Brett Kavanaugh. They announced only one new grant from that conference this afternoon, in a relatively low-profile but potentially significant case. In Manhattan Community Access Corp. v. Halleck, the justices agreed to review a ruling by the […]

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Justices take on one new case

The justices met today for their private conference – their first with the Supreme Court’s newest member, Justice Brett Kavanaugh. They announced only one new grant from that conference this afternoon, in a relatively low-profile but potentially significant case.

In Manhattan Community Access Corp. v. Halleck, the justices agreed to review a ruling by the U.S. Court of Appeals for the 2nd Circuit that the private operator of a public-access television channel is a “state actor” – that is, someone who is acting on behalf of the government — who can therefore be sued for violations of the First Amendment. The lower court’s decision, a “friend of the court” brief supporting the television channel told the justices, not only “threatens the viability” of “public-access channel operators around the country,” but it also raises a broader question: whether private property can be a public forum, a place traditionally open for public speech and debate, where the protections of the First Amendment are the strongest. And that question, says the Chicago Access Corporation, a foundation that runs public-access TV channels in that city, has become an important one lately, “as courts are increasingly being asked to consider whether privately owned internet platforms like Twitter and Facebook can ever be public forums.”

The justices did not act on several high-profile cases that they were scheduled to consider at today’s conference, including two petitions arising from a challenge to a 93-year-old cross on public land in the Washington, D.C., suburbs and a challenge to mandatory bar dues for lawyers. We expect the court to issue another set of orders from today’s conference on Monday, October 15, at 9:30 a.m.

This post was originally published at Howe on the Court.

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Ginsburg puts census depositions on hold

Ginsburg puts census depositions on holdTonight Justice Ruth Bader Ginsburg granted the federal government’s request to put off the depositions of two high-level Trump administration officials, Secretary of Commerce Wilbur Ross and John Gore, the acting head of the Department of Justice’s Civil Rights Division. Gore’s deposition had been scheduled for tomorrow morning, and Ross’ for Thursday, in a challenge […]

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Ginsburg puts census depositions on hold

Tonight Justice Ruth Bader Ginsburg granted the federal government’s request to put off the depositions of two high-level Trump administration officials, Secretary of Commerce Wilbur Ross and John Gore, the acting head of the Department of Justice’s Civil Rights Division. Gore’s deposition had been scheduled for tomorrow morning, and Ross’ for Thursday, in a challenge to Ross’ decision to bring back a question about citizenship on the 2020 census. (More details on the challenge and the issues involved can be found in an earlier post.)

Tonight was the second time in less than a week that the government had come to the Supreme Court seeking relief from a federal district court’s order in the case. On October 5, Ginsburg – who handles emergency appeals from New York, where the case originated – denied a similar request by the government to block the orders allowing the depositions to go forward, but she left open the possibility that the government could return to the Supreme Court before the depositions were taken. That is what happened tonight, after the U.S. Court of Appeals for the 2nd Circuit rejected the government’s request to put the depositions on hold.

Ginsburg directed the challengers to respond to the government’s request by 4 p.m. on Thursday, October 11. Her order will remain in effect until either she or the full Supreme Court acts on the request.

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Court releases December calendar

Court releases December calendarToday the Supreme Court released the oral argument calendar for its December sitting, which begins on Monday, November 26. The December sitting contains some of the highest-profile cases granted (at least so far) for this term, including Apple v. Pepper, in which the justices will consider whether customers who purchased iPhone apps from Apple’s App […]

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Court releases December calendar

Today the Supreme Court released the oral argument calendar for its December sitting, which begins on Monday, November 26. The December sitting contains some of the highest-profile cases granted (at least so far) for this term, including Apple v. Pepper, in which the justices will consider whether customers who purchased iPhone apps from Apple’s App Store can bring an antitrust case against Apple; Timbs v. Indiana, in which the justices will determine whether the Constitution’s ban on excessive fines applies to the states; and Gamble v. United States, in which the court has been asked to overrule the “separate sovereign” exception to the Constitution’s double jeopardy clause, which allows two “separate sovereigns” – for example, the federal government and a state – to prosecute a defendant for the same conduct.

The full schedule for cases to be argued in the December sitting, along with a brief summary of the issues presented in the cases not described above, follows the jump.

Apple v. Pepper (Monday, Nov. 26)

Nieves v. Bartlett (Monday, Nov. 26): Whether probable cause defeats a First Amendment retaliatory-arrest claim under federal civil rights laws

Nutraceutical Corp. v. Lambert (Tuesday, Nov. 27): Whether equitable exceptions apply to mandatory claim-processing rules and therefore excuse a failure to timely file within the deadline set by Federal Rule of Civil Procedure 23(f)

Carpenter v. Murphy (Tuesday, Nov. 27): Whether the 1866 territorial boundaries of the Creek Nation within the former Indian territory of eastern Oklahoma constitute an “Indian reservation” today

Timbs v. Indiana (Wednesday, Nov. 28)

Dawson v. Steager (Monday, Dec. 3): Whether the doctrine of intergovernmental tax immunity bars West Virginia from exempting the retirement benefits for some of its own law-enforcement officials from state taxes without providing the same exemption for the retirement benefits of former employees of the U.S. Marshals Service

Lorenzo v. SEC (Monday, Dec. 3): Whether a misstatement claim that does not meet the requirements outlined in the Supreme Court’s cases can instead be pursued as a fraudulent-scheme claim

Biestek v. Berryhill (Tuesday, Dec. 4): Whether a vocational expert’s testimony can constitute substantial evidence of “other work” available to an applicant for social security benefits on the basis of a disability, when the expert does not provide the applicant with the underlying data on which that testimony is premised

Helsinn Healthcare v. Teva Pharmaceuticals (Tuesday, Dec. 4): Whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention

Gamble v. United States (Wednesday, Dec. 5)

This post was originally published at Howe on the Court.

The post Court releases December calendar appeared first on SCOTUSblog.

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