SCOTUS Decisions 2011-2012 Sessi0n






United States Supreme Court (2010-2011) Session

SCOTUS (2011-2012 Session)

October 2012

Dog Sniff Cases to Be Argued on Halloween Have Haunting Implications, Law Prof Says

By Debra Cassens Weiss, ABA Journal

10-19-12 -- Two dog sniff cases to be heard by the U.S. Supreme Court on Halloween haven’t snared a lot of press, but they could have an impact on the right to privacy in years to come, a law professor asserts. . . . Writing in the New York Times, visiting Yale law professor Jeffrey Meyer opposes police use of contraband-sniffing dogs without a warrant. . . . In one of the cases, Florida v. Harris, the court is asked to decide whether a dog's alert establishes sufficient probable cause to search a vehicle. The case asks the court to determine how good the dog’s accuracy record must be, Meyer says. He says dogs aren’t always right, and he offers an example from the time he and his wife visited the U.S. Supreme Court for a law clerk reunion.

British subpoenas blocked

Lyle Denniston, SCOTUSblog        

10-17-12 -- Supreme Court Justice Stephen G. Breyer on Wednesday temporarily blocked subpoenas issued by the British government for papers collected in an academic project at Boston College about the history of the Irish Republican Army’s violent resistance to British rule in Northern Ireland.  The subpoenas are part of a United Kingdom criminal probe into the death of a former IRA member who allegedly had served as an informer for the British government.  Breyer’s order will remain in effect if the two researchers challenging the subpoenas file a formal appeal of the denial of their plea by the First Circuit Court in July. . . . The subpoenas had been challenged by Boston College, but it has given up at least part of its objection and has turned over some files.  Attempting to continue the challenge are a former member of the IRA, Anthony McIntyre, who served as the lead researcher on the oral history project (the “Belfast Project”), and a New York journalist and writer, Ed Moloney, who directed the Belfast Project.   That academic inquiry is an attempt to reconstruct the IRA rebellion from the perspective of former “foot soldiers” in that conflict, which ended in 1998 with the so-called “Good Friday Agreement.”

U.S. Museums Concerned About Unartful Impact of SCOTUS Copyright Case

By Lisa Shuchman, Corporate Counsel 

10-17-12 -- The U.S. Supreme Court will hear a copyright case later this month that could have serious unintended consequences for the nation’s art museums: If a decision by the Second Circuit Court of Appeals is upheld, every museum in the U.S. that exhibits modern art created overseas could potentially be infringing copyright. . . . “The most basic of museum functions—exhibiting art—could give rise to infringement claims,” said Stefan Mentzer, a partner with White & Case who filed an amicus brief [PDF] with the Supreme Court on behalf of the Association of Art Museum Directors and 28 museums of art. “The decision has the potential to disrupt the mission of American museums and interfere with the public’s access to art.” . . . On its face, the case before the High Court, Kirtsaeng v. John Wiley & Sons, has nothing to do modern art. The case concerns Supap Kirtsaeng, who came to the U.S. from Thailand to study at Cornell University—and found that textbooks published in Asia by Wiley were cheaper than those available in the U.S.

Time, Pen and Paper, and Now the Ear of the Supreme Court

By Adam Liptak’s "Sidebar" column. The New York Times

10-16-12 -- Kim Millbrook, an inmate at a federal prison in Pennsylvania, has 31 years of hard time on his hands. He has been using it to sue people. . . . courts have considered his lawsuits with patience and even solicitude, and last month he overcame long odds by persuading the Supreme Court to grant his handwritten petition seeking review of a decision in one of his many cases. . . . Mr. Millbrook is the kind of litigious prisoner that judges call a frequent filer. He has been inside four prisons and jails, and he has sued over asserted mistreatment in all of them. . . . He sued corrections officers at the Rock Island County Jail in Illinois for, he said, using excessive force in connection with a search of his cell. Then he sued law enforcement and medical personnel at the Henry County Jail, also in Illinois, for what he said were inhumane conditions and inadequate care. . . . He went on to sue the federal government for failing to protect him from an assault by a fellow inmate, Davon Golden, when the two men were in a federal prison in Terre Haute, Ind.

When FOIA and the Commerce Clause collide

By Erin Geiger Smith, at Alison Frankel's "On the Case" from Thomson Reuters News & Insight 

10-11-12 -- The U.S. Supreme Court agreed on Friday to hear a case concerning Virginia's Freedom of Information Act and whether its restrictions are constitutional. The restrictions on who has access to state documents have stoked the fires of two separate information-loving groups -- journalists and those who gather and sell public records for a living. . . . Virginia is one of at least eight states with a law that restricts access to public records to state residents. Specifically, the law at issue says that "all public records shall be open to inspection and copying by any citizen of the Commonwealth." So those Americans who don't live in the great state of Virginia but want to see its records are out of luck. There is an exception to that rule for "representatives of newspapers and magazines with circulation in the Commonwealth," as well as radio and television broadcasters who reach into Virginia's airwaves. But we at On the Case took note that Virginia's description of media leaves out a whole lot of reporters who practice their craft on the Internet.

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Office Max is A Victims-of-Law Associate

At high court, prospects look dim for university's affirmative action policy

By Marcia Coyle, The National Law Journal  

10-10-12 -- The University of Texas' affirmative action admissions policy, and perhaps even a 2003 landmark ruling on race, appeared in serious trouble Wednesday during arguments in the U.S. Supreme Court. . . . Eight justices heard from lawyers for the university, a white woman denied admission in 2008, and the United States in Fisher v. University of Texas at Austin. Justice Elena Kagan did not participate apparently because of experience with the litigation in her prior role as solicitor general of the United States. . . . Constitutional questions about race generally have divided the Roberts Court and, unsurprisingly on Wednesday, the Court's moderate-liberal members aggressively challenged Abigail Fisher's counsel, Bert Rein of Wiley Rein, while the conservative justices aimed their firepower at the university's advocate, Gregory Garre of Latham & Watkins.

Justices uphold government immunity over domestic eavesdropping program

By Bill Mears, CNN 

10-09-12 -- The U.S. Supreme Court on Tuesday left in place a law that allows the Justice Department to stop suits against telecommunications companies for participating in wiretaps of potential terrorists. . . . The ruling was a key setback for civil libertarians challenging the broader powers of government since the September 11, 2001, attacks on the United States to use electronic surveillance to track potential threats in the name of national security. . . . The Justices declined to take up a challenge to the once-secret domestic eavesdropping program under the Foreign Intelligence Surveillance Act - this one involving the monitoring of information moving into and out of the United States. . . . Previous petitions dealing with alleged abuses of the surveillance law also have been rejected by the court. Another case will be heard later this month.

Supreme Court receives outpouring of conflicting views on affirmative action

By Robert Barnes, The Washington Post 

10-08-12 -- Gail Heriot and two other members of the U.S. Commission on Civil Rights would like the Supreme Court to know that new research indicates that race-preferential admissions to America’s top universities are hurting those they are supposed to help. . . . “If this research is right, we now have fewer minority science and engineering graduates than we would have under race neutral admissions policies,” Heriot said in an amicus brief filed along with fellow commissioners Peter Kirsanow and Todd Gaziano. . . . “We have fewer minority college professors. fewer minority lawyers too.” . . . The American Educational Research Association would like the Supreme Court to know that Heriot and her fellow conservatives on the commission have it all wrong. . . . “Research continues to show that student body diversity leads to important educational benefits,” the group, along with other research associations, said in its amicus brief to the court.

Supreme Court to take up UT admission case

By Mike Tolson, Houston Chronicle     

10-08-12 -- In the fall of 2008, the University of Texas enrolled 10,335 minority students, not including Asian-Americans. As far as Abigail Fisher was concerned, that was one too many. . . . Fisher had made good grades in high school - a 3.59 average on a 4.0 scale - posted a score of 1180 on the SAT test and finished as number 82 in a graduating class of 674 at Stephen F. Austin High School in Sugar Land. She figured that was good enough. Then came those dreadful words: "We regret to inform you ..." . . . Fisher was heartbroken. Her dad went to Texas, and her sister. She bled burnt orange. "I had dreamt of going to UT since the second grade," she said.

Your right to resell your own stuff is in peril

It could become illegal to resell your iPhone 4, car or family antiques

Jennifer Waters's Consumer Confidential, MarketWatch  

10-04-12 -- Tucked into the U.S. Supreme Court’s busy agenda this fall is a little-known case that could upend your ability to resell everything from your grandmother’s antique furniture to your iPhone 4. . . . At issue in Kirtsaeng v. John Wiley & Sons is the first-sale doctrine in copyright law, which allows you to buy and then sell things like electronics, books, artwork and furniture as well as CDs and DVDs, without getting permission from the copyright holder of those products. . . . Under the doctrine, which the Supreme Court has recognized since 1908, you can resell your stuff without worry because the copyright holder only had control over the first sale. . . . Put simply, though Apple has the copyright on the iPhone and Mark Owen does on the book “No Easy Day,” you can still sell your copies to whomever you please whenever you want without retribution. . . . That’s being challenged now for products that are made abroad and if the Supreme Court upholds an appellate court ruling it would mean that the copyright holders of anything you own that has been made in China, Japan or Europe, for example, would have to give you permission to sell it.

Supreme Court asks for review of LU's challenge to healthcare act

By: Amy Trent | The News & Advance   

10-03-12 -- The U.S. Supreme Court this week asked the Department of Justice for its view on whether Liberty University’s case against the Affordable Care Act should be heard by a federal appeals court. . . . The high court, which began its 2012-13 session Monday, gave the federal government and LU 30 days to respond to the case, Liberty University v. Geithner. . . . The court declined to rule on the case in 2011, and then made its landmark ruling in the spring upholding certain provisions of the ACA. . . . Liberty Counsel, which is representing LU, said the Supreme Court’s 2012 decision did not rule on its claims that the act infringes on free exercise of religion and the requirement that employers provide health insurance or pay a penalty exceeds legislative authority.. . . Liberty Counsel’s petition asks that those issues be considered now.

Are class action lawyers in Arkansas snubbing SCOTUS (and CAFA)?

by Alison Frankel, Thomson Reuters News & Insights         

10-03-12 -- Over the summer, the justices of the U.S. Supreme Court made one of the most improbable grants of certiorari you will ever see. . . . The timing alone was unusual. The court granted cert in Standard Fire Insurance v. Knowles on Aug. 31, almost a month before the first conference of the new term on Sept. 24. But that's just the beginning of this case's oddities. There's no split among the federal circuits on the issue presented in Standard Fire: whether a class action plaintiff can defeat removal to federal court under the Class Action Fairness Act by stipulating on behalf of the entire class to seek less than $5 million, the statutory cut-off for a state-court class action. In fact, there couldn't possibly be a circuit split on that question because only one appellate court, the 8th Circuit Court of Appeals, has addressed it. And though Standard Fire comes out of 8th Circuit turf in Arkansas, it is not even the case in which the 8th Circuit opined on these class action damages stipulations, which have become an oft-used tactic of plaintiffs' lawyers who want to keep their cases in state court.

Argument recap: If it floats, so what?

Lyle Denniston, SCOTUSblog 

10-01-12 -- It used to be said that the way to identify whether a stream was navigable was whether a log would float in it.   Seems a bit old-fashioned.  Perhaps it now could be said that the way to know whether a floating structure is or is not a “vessel” is to ask whether, if it were a styrofoam sofa, would it float?   Seems a bit silly, but that is sometimes the way it goes when the Supreme Court Justices try to outdo each other in imagining homely illustrations in order to make legal points.   It was Justice Stephen G. Breyer (usually to be counted upon to go from the ridiculous to the sublime with homely examples) who wondered on Monday about that lightweight sofa bobbing on the surface, perhaps with a retiree sitting back and enjoying being carried along.  At least it was funnier than Chief Justice John G. Roberts, Jr., wondering if an inner tube is a boat. . . . Breyer and the Chief Justice were reacting to Washington lawyer David C. Frederick, who had urged the Court in Lozman v. Riviera Beach to rule that a floating structure is a “vessel” in a legal sense “if it floats, moves, and carries people or things on water.” 

Human rights in focus at U.S. Supreme Court

By Jonathan Stempel, Thomson Reuters News & Insights

10-01-12 -- The U.S. Supreme Court, back in session today after its summer recess, is expected to take up a closely watched case that could help it decide whether American judges are empowered to hear lawsuits over human rights atrocities abroad. . . . The nine justices will review the reach of the Alien Tort Statute, an obscure 1789 law that was revived in the 1980s by attorneys pursuing international human rights cases. . . . In the past two decades more than 150 Alien Tort Statute lawsuits, accusing U.S. and foreign corporations of wrongdoing in more than 60 foreign countries, have been filed in U.S. courts, according to the U.S. Chamber of Commerce. . . . Last February, during the first oral arguments in Kiobel v. Royal Dutch Petroleum, some of the court's conservative justices signaled a willingness to shield corporations from liability in U.S. courts over allegations that they had aided or acquiesced to foreign governments that abused their own people.

September 2012

Column: Will court open with bad blood?

Last term ended with contentious health care ruling. But justices won't let animosity, as with Congress, infect them.

Tony Mauro, USA Today 

09-30-12 -- Monday, it is the Supreme Court's turn to show whether it, like the other two branches of government, has been torn apart by Washington's climate of contentiousness. . . . This summer, a bitterly divided Congress accomplished little and went home, while the candidates for president have escalated their animosity in rhetoric and advertising. . . . As the Supreme Court returns from its summer recess on the traditional first Monday of October, the question on many minds will be whether the usually collegial nine justices have been bitten by the same bilious bug.

Six Supreme Court justices attend Red Mass

By Dan Merica, CNN

09-30-12 -- Six of the nine Supreme Court justices attended the annual Red Mass at the Cathedral of St. Matthew the Apostle in Washington on Sunday. The event’s speakers spoke about using faith in decision-making but largely stayed away from the controversial issues the court will face in the coming months. . . . Chief Justice John Roberts, Justice Stephen Breyer, Justice Antonin Scalia, Justice Clarence Thomas, Justice Anthony Kennedy and Justice Elena Kagan all attended the 60th annual Mass. This was Kagan’s first Red Mass. . . . Having six justices in attendance ties a record set in 2009. The only justices to not attend this year were Sonia Sotomayor and Samuel Alito, both of whom are Catholic, and Ruth Bader Ginsburg, who is Jewish. Kagan and Breyer, both of whom were in attendance, are also Jewish.

How much privacy does the Constitution guarantee for the blood’s chemistry?

By Lyle Denniston, "Constitution Daily" blog of the National Constitution Center.  

09-27-12 -- The Supreme Court, getting set for opening its new term, decided this week that it will take a serious look for the first time in nearly five decades at the constitutional privacy – or not – of individual’s blood chemistry.  The justices agreed to decide whether police can order that a blood sample be taken from a suspect, without first getting a judge’s approval to do so. . . . It is clear, under the Constitution’s Fourth Amendment, that government analysis of an individual’s blood or other bodily fluids is a “search” that can only be conducted within limits. Indeed, the court remarked in a blood search case in 1966 that “the integrity of an individual’s person is a cherished value in our society….Search warrants are ordinarily required…where intrusions into the body are concerned.”

U.S. Supreme Court to hear drug dog cases from Fla.

By David Royse, The News Service of Florida , Naples Daily News  

09-26-12 -- Every dog has his day … in court. . . . Or at least two Florida drug sniffing dogs, Franky and Aldo, will. . . . On Halloween, the U.S. Supreme Court will hear oral arguments in two separate Florida cases involving the smells picked up by drug sniffing canines. . . . One case involves whether a warrant is needed before a police dog goes sniffing around the door of a possible drug house. The other deals with the reliability of drug dogs and how much their skill is relevant to the admissibility of evidence. . . . In the case involving search warrants, Joelis Jardines v. Florida, the nation's highest justices are being asked to decide whether Franky the drug sniffing dog was violating the constitutional rights of a Miami drug dealer when he sniffed at his door without a warrant.

Supreme Court will hear case on North Carolina malpractice settlement

By Michael Doyle | McClatchy Newspapers 

09-25-12 -- A North Carolina family catastrophe has landed at the Supreme Court, with potentially far-reaching consequences for how states handle medical malpractice settlements. . . . In a case that’s both technical and poignant, the court agreed Tuesday to consider a North Carolina law that state officials use to claim a portion of the settlement funds provided to medical malpractice plaintiffs and their loved ones. The state share can add up to a lot, millions of dollars in some instances. . . . The case the high court accepted involves North Carolina officials asserting a lien on $933,333.33, one-third of the $2.8 million that Sandra and William Earl Armstrong secured in a lump-sum medical malpractice settlement reached in 2006 on behalf of their daughter.

As new term approaches, Supreme Court adds six cases to its docket

By Marcia Coyle, The National Law Journal  

09-25-12 -- Getting an early start on the new term, the U.S. Supreme Court on September 25 added six new cases to its docket, including a case asking whether the litigation exception to the federal Driver's Privacy Protection Act protects lawyers who use car buyers' personal information for a potential class action. . . . The new term officially begins on Monday, October 1, but as has been the practice in recent years, the justices released an orders list of newly granted petitions the day after meeting intheir summer conference. However, in a break with tradition, the Court released the orders list a half hour earlier than the usual 10 a.m. time. At the request of news media, Chief Justice John Roberts Jr. and his colleagues approved the earlier time in order to enable reporters who must meet early filing deadlines on argument days to get to the courtroom in time for the start of oral arguments at 10 a.m. The change also will minimize past disruptions in the press section as late-arriving reporters required shifts in seating arrangements.

Court grants appeals from 2 people without lawyers

Well-heeled clients pay tens of thousands of dollars to hit the legal jackpot - Supreme Court review of their appeals. But on Tuesday, the court decided to hear cases filed by two people who couldn't afford or didn't bother to hire an attorney.

By Jesse J. Holland, Associated Press | The Seattle Times  

09-25-12 -- Well-heeled clients pay tens of thousands of dollars to hit the legal jackpot - Supreme Court review of their appeals. But on Tuesday, the court decided to hear cases filed by two people who couldn't afford or didn't bother to hire an attorney. . . . One was written in pencil and submitted by an inmate at a federal prison in Pennsylvania. The other was filed by a man with no telephone living on Guam. . . . Neither case seems destined to join the ranks of Gideon v. Wainwright, the landmark 1960s case filed by a prisoner with no lawyer that established a criminal defendant's right to a lawyer. Both show, however, that when the court is looking to resolve finicky legal issues and the right case shows up, it doesn't matter whether the author of the appeal wears a natty suit or prison garb. . . . Longtime Supreme Court practitioner Tom Goldstein called the granting of two such lawyerless cases at the same time "unheard of." But both cases chosen by the justices will help resolve the ability of civilians to sue the government over claims of improper actions of federal and military employees on the job.

August 2012

Supreme Court to hear international child custody dispute

Reporting by Jonathan Stempel and Terry Baynes, Thomson Reuters News & Insights    

08-13-12 -- The U.S. Supreme Court agreed Monday to hear a U.S. Army sergeant's challenge to a lower court ruling that awarded custody of his 5-year-old daughter to her mother in Scotland under an international treaty. . . . Jeffrey Chafin, the sergeant, is seeking to reverse a federal appeals court decision letting his daughter Eris remain in Scotland with her mother, Lynne Chafin, from whom he had filed for divorce. . . . According to court papers, Lynne Chafin, a Scottish national, had lived with her daughter in Scotland since 2007, apart from her husband because of his job, and in February 2010 traveled to visit him in Madison, Alabama, in a failed effort to save their marriage. . . . Lynne Chafin later returned to Scotland upon overstaying her visa and sought the return of their daughter after an Alabama state judge awarded custody to Jeffrey Chafin.

Supreme Court To Decide Whether Floating House Is Really A Boat

Daniel Fisher, Forbes Staff  

08-10-12 -- As yachts go, Fane Lozman’s vessel was no Queen Mary. First of all, the two-story, 60-foot boat had no name, motor or way of being steered. She drew only 10 inches of water and had glass French doors on three sides, making the idea of an ocean passage nonsensical.  Tied up at the dock in North Beach Village, Fla., she was the functional equivalent of a house down to the sewer line and electrical lines snaking onshore. . . . That didn’t stop town authorities from getting an order under marine law to seize the vessel and tow it to Miami, after accusing Lozman of failing to heed local ordinances and pay his dockage fees. Now the U.S. Supreme Court is scheduled to decide the question of whether the term “vessel” applies to anything that floats, or should be reserved for things intended to move from place to place.

July 2012

Chief Justice’s Stay Order Suggests Court Will Consider Constitutionality of DNA Tests for Arrestees

By Debra Cassens Weiss, ABA Journal

07-31-12 -- An order by Chief Justice John G. Roberts Jr. is allowing Maryland police to continue collecting DNA samples from those who are arrested for serious crimes. . . . Roberts said there is a "fair prospect" that the U.S. Supreme Court will overturn an April ruling by Maryland’s highest court, which found the state's DNA law violated the Fourth Amendment. The law authorizes DNA collection from individuals charged with but not yet convicted of violent crimes and burglaries. . . . The Wall Street Journal (sub. req.), the Washington Post, the New York Times and SCOTUSblog have stories on Roberts’ order (PDF) staying the Maryland ruling.

Supreme Court is asked to find that insanity defense is a constitutional right

By Robert Barnes, The Washington Post    

07-22-12 -- There’s no doubt John Joseph Delling knew what he was doing. His carefully planned 2007 crime spree lasted weeks, covered 6,500 miles and culminated in two people dead and one seriously wounded. . . . He had his reasons, too. Delling, then 21, had become “a type of Jesus,” he later explained, and the men he attacked, two of them former classmates he had not seen in years, were stealing his “energy.” An MRI of his brain would have revealed the damage the men had already caused, he told authorities. . . . “I had to defend myself,” he said. . . . As the nation confronts another act of unfathomable madness, Delling’s story is one chapter in a distressing and violent genre: the loner who tries to impress a movie star by shooting the president; the mother who drowns her children to save them from damnation; the black-clad shooter who seems to step from the movie screen to kill. . . . But Delling’s case presents an intriguing legal question as well. He committed his crimes in Idaho, which is one of only four states — Kansas, Montana and Utah are the others — in which a defendant may not use insanity as a defense to criminal charges.

Benefits rules eased on same-sex partners of federal employees

The Obama administration has made it easier for domestic partners to get some retirement funds, while it awaits a Supreme Court ruling on the benefits ban for same-sex spouses of federal workers.

By David G. Savage, Washington Bureau, The Los Angeles Times   

07-21-12 -- The Obama administration has made it easier for same-sex domestic partners of federal employees to receive a share of their retirement benefits, while its lawyers seek equal benefits for legally married gay couples in the Supreme Court. . . . Since 1996, the Defense of Marriage Act has barred federal agencies from recognizing marriages between gay men or lesbians or extending them the benefits due a married couple. But two years ago, President Obama said this barrier did not necessarily extend to unmarried same-sex partners, and he told federal executives to take a close look at the rules to see where equal benefits could be extended. . . . On Friday, the government announced several such rule changes. It added "same-sex domestic partners" to the small list of those who have an "insurable interest" in a federal employee's retirement. Retirees can opt to provide an annuity for their survivors. Before the rule change, the list of eligible persons for such an annuity included a spouse or former spouse, but not a same-sex partner.

Whitehead Commentary:

Whatever Happened to Justice? Supreme Court OKs Police Tasering Pregnant Women

By John W. Whitehead, Rutherford Institute June 6, 2012

Justice Roberts issues order in Wicomico case

Suspect's DNA collection contested in 2003 rape

Written by Jennifer Shutt, The Daily Times of Salisbury Staff Writer   

07-20-12 -- A Wicomico County court case has attracted the attention of the U.S. Supreme Court. . . . On Wednesday evening, Chief Justice John Roberts issued an order temporarily halting a decision by the Maryland Court of Appeals that granted convicted rapist Alonzo King Jr. a second chance in Wicomico County Circuit Court. . . . "This is good news to the extent that this stay effectively reinstates King's conviction as if the Court of Appeals had not yet ruled," said Wicomico County State's Attorney Matt Maciarello. "The defendant is going to get a chance to respond to the attorney general's motion; however, we are optimistic that because the Supreme Court granted the stay, preliminarily, that the court is looking at this seriously and considering granting the writ of certiorari."

Kiobel: Made simple

Editor’s note:  During the Supreme Court’s summer recess, the blog will be publishing a series of posts that explain, in non-legal terms, some of the most important cases that will be decided in the new Term that starts October 1.  This is the first of those posts.  It explains the case of Kiobel v. Royal Dutch Petroleum. Beginning on Monday, the blog will also be hosting a symposium on Kiobel.

Lyle Denniston, SCOTUSblog Reporter          

07-06-12 -- America’s very first Congress, which started meeting in 1789, passed a law that has been given a new life in the Nation’s courts since the 1980s as the world searched for legal ways to deal with human rights abuses such as torture and killing that occurred around the world.   At its next Term, the Supreme Court is expected to decide whether that law gives federal courts in the U.S. the authority — in essence — to reach across the seas and judge violations of international law that occur entirely in another country.   If the Justices find that the law goes that far, they are then likely to decide whether corporations can be sued for such human rights violations. . . . The law is called the Alien Tort Statute.  The word “alien” means a person who is not a U.S. citizen.  Those individuals are the only ones who have a right to file a lawsuit under that law.  The word “tort” means misconduct or wrongdoing for which the law provides a remedy.  Under this old law, foreign nationals may sue in federal courts in the U.S. for “torts” that violate either international law or a treaty that the U.S. has signed.

The next big Supreme Court controversy: same-sex marriage

By Lyle Denniston, "Constitution Daily" blog of the National Constitution Center 

07-05-12 -- The Supreme Court Justices have left a steaming Washington – a summer heat wave and a searing new dispute over how they made the health care decision – but no sooner had they departed than the next major controversy arrived. . . . Awaiting them at the end of summer will be the issue of same-sex marriage, as emotionally charged as any issue they faced even in the difficult term just ended. . . . As if to prolong the partisan conflict that surrounded the health care decision, President Obama’s Justice Department is facing off in the new cases against the Republican leadership of the House of Representatives.   They will be jousting over the Defense of Marriage Act (DOMA), the 1996 law that defines marriage for all federal purposes (benefits included) as only the union of a man and a woman.  More than 1,000 federal laws are involved.

Lenders in the Courthouse

By Steve Kolowich, Inside Higher Ed   

07-03-12 -- If the U.S. Supreme Court upholds the conviction of a Thai-born graduate student who allegedly made close to $1 million importing cheaply made foreign editions of textbooks and selling them to U.S. students on eBay, then academic libraries might not be allowed to lend certain books and electronic materials, according to library advocates who plan to file an amicus brief on the case today. . . . The Library Copyright Alliance, a consortium of three major library associations, argues that a lower court’s ruling in John Wiley & Sons, Inc. v. Supap Kirtsaeng could make libraries liable for copyright infringement if they lend out library books and other materials that were “not lawfully manufactured in the United States” without purchasing expensive “lending licenses.” (Libraries, the alliance asserts, tend to have large numbers of foreign-made books in their collections.) . . . Such an outcome could give publishers greater leverage to dictate the terms under which patrons may access copyrighted works, according to Brandon Butler, director of public policy initiatives for the Association of Research Libraries and co-author of the amicus brief.

June 2012

Don’t call it a mandate — it’s a tax

For those reading the opinions, the key section on the mandate is in Roberts’ opinion, from pp. 33-44. That clearly has five votes behind it.

Lyle Denniston, SCOTUSBLOG Reporter  

06-28-12 -- Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Thursday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act.   By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t.  That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed.  The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form. . . . Since President Obama signed the new law, it has been understood by almost everyone that the expansion of health care coverage to tens of millions of Americans without it could work — economically — only if the health insurance companies were guaranteed a large pool of customers.   The mandate to buy health insurance by 2014 was the method Congress chose to supply that pool.   It is not immediately clear whether the Court’s approach will produce as large a pool of new customers.   The ACA’s key provision amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.

Supreme Court: Lying about military medals is protected by Constitution

By Michael E. Ruane and Robert Barnes, The Washington Post    

06-28-12 -- The Supreme Court on Thursday struck down a federal law that made it a crime to falsely claim being awarded a top military honor, saying the law smacked of an Orwellian Truth Ministry and threatened free speech. . . . The court invalidated the Stolen Valor Act, under which a California man, Xavier Alvarez, 54, was convicted for claiming falsely in 2007 that he had been awarded the Medal of Honor, the nation’s highest award for valor. . . . But Alvarez’s attorneys convinced a lower court that his untruths were protected by the First Amendment’s guarantee of free speech. And Thursday, the Supreme Court agreed in a 6 to 3 decision. . . . “Lying was his habit,” Justice Anthony M. Kennedy wrote of Alvarez. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico.”

Supreme Court to Decide Class Certification Issue; Expert Says Case Could Be ‘the Big One’

By Debra Cassens Weiss, ABA Journal

06-26-12 -- The U.S. Supreme Court has granted cert in a suit alleging antitrust violations by Comcast Corp. that could make it more difficult for plaintiffs to bring class actions in federal courts. . . . At issue in Comcast v. Behrend is whether a district can certify a class action without resolving whether the plaintiffs have introduced admissible evidence showing damages can be awarded on a classwide basis, report SCOTUSblog, Reuters and the Philadelphia Inquirer. The Supreme Court granted cert on Monday.

Scalia takes swipe at Obama immigration action

By Jennifer Epstein, Politico   

06-26-12 -- Supreme Court Justice Antonin Scalia suggested Monday that the Framers of the Constitution would have “rushed to the exits” if presented with the idea behind President Barack Obama’s recent decision not to enforce certain immigration laws. . . . The Supreme Court’s decision to strike down most of the key provisions of Arizona’s SB 1070 immigration law “boggles the mind” in light of the Obama policy shift, Scalia added. . . . Speaking in dissent of most of the court’s rulings on Arizona’s immigration law, Scalia took a clear swipe in his remarks at the Obama administration’s new policy ending deportations of many young adults brought into the country illegally — which was not part of the Arizona case. . . . “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws,” Scalia said. “Perhaps it is, though Arizona might not think so.”

Supreme Court to Review Rules for Supervisor in Job-Bias Suits

By Bob Drummond, Bloomberg  

06-25-12 -- The U.S. Supreme Court will settle a dispute about who can be considered a workplace supervisor for purposes of a federal job-discrimination lawsuit. . . . The justices today agreed to consider an appeal by a black Ball State University catering worker, whose discrimination claim against the school was thrown out after a federal appeals court said her alleged harasser didn’t qualify as a supervisor. Under the Civil Rights Act of 1964, an employer can be held liable if a supervisor discriminates against an employee based on race, color, religion, sex or national origin. . . . Maetta Vance sued Ball State alleging that a co-worker in the Muncie, Indiana, university’s banquet and catering department -- described as a salaried employee who functioned as a supervisor -- had slapped her, threatened her and referred to her using racial epithets.

Supreme Court strengthens Citizens United decision with Montana ruling

By Matea Gold, The Los Angeles Times   

06-25-12 -- The Supreme Court on Monday reaffirmed the right of corporations to make independent political expenditures, summarily overturning a 100-year-old Montana state law that barred corporations from such political activity. . . . The justices ruled in an unsigned opinion that Montana's law was in conflict with the court's 2010 Citizens United decision, which shifted the campaign finance landscape, opening the door to the massive political expenditures that have been shaping this year's presidential race. The decision was 5-4, split along ideological lines. . . . Despite the Citizens United decision, the Montana Supreme Court had refused to strike down the state's ban on election spending by corporations. Its judges cited Montana's history of "copper kings" who bribed legislators. Advocates of campaign finance reform had hoped that the current wave of election-related spending would help make their case for the need to reconsider Citizens United.

Supreme Court rejects much of Arizona immigration law

By Robert Barnes and N. C. Aizenmann, The Washington Post    

06-25-12 -- The Supreme Court on Monday rejected much of Arizona’s controversial immigration law, but upheld other provisions, giving a partial victory to the Obama administration. . . . The court ruled that Arizona cannot make it a misdemeanor for immigrants to fail to carry identification that says whether they are in the United States legally; cannot make it a crime for undocumented immigrations to apply for a job; and cannot arrest someone based solely on the suspicion that the person is in this country illegally. . . . However, the court let stand the part of the law that requires police to check the immigration status of anyone they detain, if there is “reasonable suspicion” that the person is unlawfully in the United States. Even there, though, the justices said the provision could be subject to additional legal challenges. The court said it was “improper” for the federal government to block the provision before state courts have a chance to interpret it and without determining whether it conflicts with federal immigration law in practice.

Life Sentences for Young Murderers Limited by High Court

By Greg Stohr, Bloomberg-

06-25-12 -- A divided U.S. Supreme Court ruled that states can’t impose mandatory life-without-parole sentences on juveniles who are convicted of taking part in a murder. . . . The justices, voting 5-4, said states violate the constitutional ban on cruel and unusual punishment when they don’t allow for the option of a shorter sentence. . . . Juvenile sentencing has been an area of concern for the nation’s highest court over the past decade. In 2005, the court outlawed the death penalty for juveniles, saying their lack of maturity made them “categorically less culpable than the average criminal.” In 2010, the court extended that reasoning to bar life-without-parole sentences for youths convicted of a crime other than murder.

At the Court, four more down, five to go

By Marcia Coyle and Tony Mauro, The National Law Journal  

06-21-12 -- With decisions ranging from broadcast indecency to union fees and corporate fines, the U.S. Supreme Court on Thursday cleared the way for the term's biggest and likely most controversial rulings to come next week. . . . The justices issued four opinions, including a narrow ruling in the long-awaited challenge to the indecency regulations of the Federal Communications Commission: FCC v. Fox, which was argued more than five months ago. After Thursday's rulings, five cases remain (counting healthcare and life without parole for juvenile murders as one each). The Court will return on Monday and may schedule an additional decision day that week. . . . In the world of appellate practice, Thursday was a big day for Sidley Austin's co-chair and veteran advocate Carter Phillips, who won two cases – following on the heels of a win on Monday in an Indian contracts case. Phillips has argued 76 times before the high court, more than any lawyer currently in private practice. "I don't think I have ever won three in a week before but it feels very good," Phillips said Thursday afternoon.

Supreme Court rules against union on nonmember fees

Reporting by James Vicini, Thomson Reuters News & Insights   

06-21-12 -- The U.S. Supreme Court ruled on Thursday that free-speech rights require that a union provide a separate notice allowing nonmembers to object before imposing a special extra fee to raise funds for political or other purposes. . . . By a 7-2 vote, the justices ruled for a group of California workers who sued to stop the 2.1-million-member Service Employees International Union from collecting extra money from those nonmembers who did not want to pay the fee. . . . The majority opinion written by Justice Samuel Alito cited the free-speech rights under the Constitution's First Amendment and said there was no justification for the union's failure to provide a new notice for nonmembers. . . . When a public-sector union imposes a special assessment or dues increase to meet expenses not previously disclosed, it must provide a new notice and cannot collect any funds from nonmembers without their approval, he said.

Opinion recap: TV indecency policy awaits next round


Lyle Denniston, SCOTUSBlog Reporter  

06-21-12 -- The federal government’s battered policy against what it considers to be “indecent” programming on television has weathered two showdowns in the Supreme Court in the past three years.  But, on Thursday, the Court impliedly posed a question: whether that Federal Communications Commission policy — if left as is — would survive a third such encounter.  The signals were not promising for the FCC. . . . The new ruling in FCC v. Fox Television Stations, et al. (10-1293), of course, did not strike down the policy.  It nullified specific orders by the FCC enforcing its policy, and avoided the First Amendment issue altogether.  FCC thus does retain the option of going right ahead to regulate broadcasts of single uses of four-letter words and momentary glimpses of provocative nudity, as if nothing had changed.   It also has the option of reconsidering, but anything new it writes will again be tested constitutionally, so either way, there will be a third round.

Supreme Court Refuses to Say S*** About Legality of Cursing on TV

By David Kravets, Wired   

06-21-12 -- The Supreme Court on Thursday set aside indecency rulings against Fox and ABC for airing fleeting expletives and nudity on the public airwaves, but declined to rule on the constitutionality of decency standards for broadcast television and radio. . . . The case was being closely watched because the high court was in a position to decide whether decency standards for broadcast television and radio breached the First Amendment. Opponents argue the rules are unnecessary because of the ubiquity of cable and satellite programming not covered by the standards. . . . But the justices punted on that hot-button constitutional issue and instead ruled on narrow, procedural grounds in an 8-0 decision with Justice Sonia Sotomayor recused.

Supreme Court extends more lenient penalties in crack cocaine case

Reporting by James Vicini, Thomson Reuters News & Insights   

06-21-12 -- The U.S. Supreme Court on Thursday extended more lenient penalties of a new law for crack and powder cocaine to criminals convicted but not yet sentenced when the law took effect, a ruling that could affect thousands of defendants. . . . By a 5-4 vote, the high court ruled for two men convicted of crack cocaine crimes, but sentenced after the 2010 measure became law. Congress changed the law due to concerns that the longer prison terms were racially biased and unfair. . . . The Fair Sentencing Act, signed by President Barack Obama on Aug. 3, 2010, sharply reduced the difference between sentences for crimes committed by crack cocaine users, who tend to be black, and powder cocaine users, who tend to be white. . . . The disparity was reduced to about an 18-to-1 ratio, compared with the prior law which treated 100 grams of powder cocaine as the equivalent of one gram of crack cocaine, or a 100-to-1 ratio.

In hazardous-waste case, justices rule juries must decide criminal fines

Lawrence Hurley, E&E reporter | Greenwire

06-21-12 -- The Supreme Court ruled today that a jury should get to decide how much a natural gas distribution company should have to pay in criminal fines for illegally storing mercury at a Rhode Island facility. . . . Split 6-3, the court found that juries, not judges, have to make factual findings that determine how much a criminal fine will be. That includes the question of how long a violation occurred in situations in which fines are imposed on a per-day basis. . . . The case, which involves a prosecution under the Resource Conservation and Recovery Act (RCRA), is likely to affect the way the government handles prosecutions of companies under a wide range of statutes, including other environmental laws such as the Clean Water Act.

Sotomayor Supports Cert for Defendant Convicted Without Notice of Trial

By Debra Cassens Weiss, ABA Journal

06-19-12 -- Justice Sonia Sotomayor argued on Monday that the U.S. Supreme Court should have granted cert in the case of a man convicted after notice of trial was sent to the wrong address. . . . The defendant, William Fairey, was tried and convicted in absentia in South Carolina after his arrest on a charge of obtaining goods and money under false pretenses, Sotomayor wrote in a dissent (PDF) from the court’s cert denial. Fairey was sentenced to eight years in prison. . . . Fairey had informed the court of new addresses in California and Florida, but the subpoena for trial was sent only to addresses in California and South Carolina. The Florida address was Fairey's most recent residence, and his most recent motion to the court had provided only the Florida address. He never received actual notice of trial.

Supreme Court split over defendants’ rights to confront lab analysts

By Robert Barnes, The Washington Post  

06-18-12 -- A fractured Supreme Court on Monday took a tentative step away from its recent decisions that said criminal defendants have the right to confront technicians and analysts who prepare crime-lab reports used against them. . . . The 5 to 4 decision upheld the rape conviction of an Illinois man. But it exposed the divisions on a court that is trying, as Justice Elena Kagan noted, to apply the 18th-century right to confront one’s accusers with 21st-century evidence such as DNA testing. . . . In the end, the justices split in ways that scramble the court’s usual ideological divide. . . . Justice Samuel A. Alito Jr., joined by two of his fellow conservative justices and one liberal, gave prosecutors more leeway in presenting laboratory reports without making analysts testify to their accuracy.

Supreme Court says drug company representatives are ‘salesmen’

By Robert Barnes, The Washington Post  

06-18-12 -- The Supreme Court ruled Monday that drug company representatives paid to persuade doctors to prescribe their products should be considered “salesmen,” a distinction that could save the pharmaceuticals industry billions of dollars in overtime pay. . . . The court’s five conservatives said the representatives qualified as “outside salesman,” a Labor Department classification that protects their employers from paying overtime. . . . There are about 90,000 such workers, and drug companies said they could face paying billions of dollars in overtime pay if the Supreme Court had ruled them something other than sales representatives. . . . The workers “bear all of the external indicia of salesmen,” Justice Samuel A. Alito Jr. wrote for a majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

U.S. urges narrowing human rights claims

Lyle Denniston, SCOTUSblog Reporter

06-15-12 -- The Obama Administration urged the Supreme Court on Thursday to close the U.S. courts to most lawsuits involving claims that a foreign corporation helped a foreign government engage in human rights abuses in that country.  While arguing that the door to American courts should be left somewhat ajar to allow some abuse claims, the options that would remain would appear to be quite narrow, with a variety of legal hurdles to overcome.   The government’s new reaction to lawsuits under the Alien Tort Statute, first enacted in 1789, was expressed in a brief filed in Kiobel v. Royal Dutch Petroleum (docket 10-1491).   That specific lawsuit, the brief argued, should not be permitted. . . . That case, heard by the Justices in February, is due to be reheard in the new Term starting October 1.  The new issue to be explored then — a question raised by the Court itself in March– is whether and under what circumstances an ATS lawsuit should be allowed based on international law violations that had occurred in a foreign land.   Technically, that is the issue of “extraterritorial application” of the ATS.  Previously, the Kiobel case had focused only on whether corporations could be sued in U.S. courts under the ATS for foreign violations of global law.

Corporate Cash in State Elections Gets U.S. High Court Scrutiny

By Julie Bykowicz, Bloomberg -

06-14-12 -- The U.S. Supreme Court is poised to reopen the debate over a 2010 ruling that unleashed super-PACs and left federal elections awash in money from big spenders. . . . The justices may say as soon as next week whether they will review, or even overturn, a century-old Montana ban on corporate campaign spending, a law enacted to stop copper moguls from buying influence over the state’s politicians. . . . The court two years ago altered the national political landscape with its ruling in Citizens United v. Federal Election Commission, which gave companies and unions the right to spend unlimited sums on elections. Outside spending on federal races is more than double what it was four years ago.

Justices Tighten Screws on Circuit Courts Over AEDPA

By Saranac Hale Spencer, The Legal Intelligencer  

06-11-12 -- For the second time this year, the U.S. Supreme Court has summarily rejected a holding of the U.S. Court of Appeals for the Third Circuit in a habeas case, shoring up what some legal observers see as a trend in the high court. . . . The justices have been routinely reversing circuit courts in habeas cases, citing a lack of deference to state courts and often invoking the Antiterrorism and Effective Death Penalty Act. . . . In a unanimous per curiam decision May 29, the Supreme Court reversed the Third Circuit on its grant of habeas corpus to Lorenzo Johnson, who was convicted of conspiring in the murder of a man in 1995, the year before Congress passed the AEDPA

Supreme Court scolds 6th Circuit in habeas case

By Tony Mauro, The National Law Journal 

06-11-12 -- Using unusually impatient language, the Supreme Court on Monday reversed a ruling by the U.S. Court of Appeals for the 6th Circuit that set aside two Kentucky murder convictions based on what the high court said were "the flimsiest of rationales." . . . The Supreme Court's per curiam decision in Parker v. Matthews also in effect pulled rank on the 6th Circuit, scolding it for "consulting its own precedents, rather than those of this Court" in assessing the reasonableness of the Kentucky Supreme Court's decision in the case. The unsigned opinion said the 6th Circuit's decision amounted to "plain and repetitive error." . . . Adding insult to injury, the Court on Monday also sent a separate habeas case, Howes v. Moore, back to the 6th Circuit for reconsideration in light of Parker v. Matthews.

Justices Decline Review of Religious Speech Case

By Mark Walsh "School Law" blog of Education Week    

06-11-12 -- The U.S. Supreme Court on Monday declined to step into a thorny case involving the free-speech rights of elementary school students and the potential legal liability of school administrators who try to limit religious speech. . . . The justices refused to review a ruling by a federal appeals court that elementary school students have First Amendment free-speech rights to discuss religion with their classmates, but that administrators involved in the case were immune from liability because those rights were not clearly established. . . . The appeal stems from a long-running lawsuit over several incidents in which administrators in the Plano, Texas, school district allegedly barred students from distributing items such as religious-themed candy canes or pencils with messages like "Jesus is the Reason for the Season" or "Jesus loves me, this I know, for the Bible tells me so."

Supreme Court Rejects ‘Dirty Bomber’ Case

By David Kravets,         

06-11-12 -- The Supreme Court on Monday let stand a lower court decision that said federal officials cannot be sued for damages for the torture of Americans on U.S. soil. . . . Without comment, the justices set aside a petition (.pdf) from Jose Padilla, the so-called “dirty bomber.” Padilla claims high-ranking Defense Department officials and others are liable for developing “the global detention and interrogation policies” that paved the way for his torture while he was secretly held without charges at a Navy brig in South Carolina for more than three years. . . . The 4th U.S. Circuit Court of Appeals in January ruled that the judiciary had no role in the matter.

Supreme Court Declines Guantanamo Bay Cases: It's Been 4 Years Of Silence

Mike Sacks, Huffington Post     

06-11-12 -- The Supreme Court on Monday denied review in the cases of several Guantanamo Bay detainees, likely closing off for good the prospect of continued oversight of the executive branch's handling of the prison camp that had been held out in a landmark decision four years ago. . . . The cases came up from the U.S. Court of Appeals for the D.C. Circuit, whose judges at times have been openly contemptuous of the Supreme Court's June 2008 ruling in Boumediene v. Bush. The D.C. Circuit judges have refused to order the release of a single detainee brought to Guantanamo in the months and years following al Qaeda's Sept. 11, 2001, attacks in New York and Washington, D.C.

City Tax Flexibility Backed by U.S. Supreme Court in Ruling

By Greg Stohr, Bloomberg -

06-04-12 -- The U.S. Supreme Court buttressed the flexibility cities and states have to make changes in their financing systems, ruling in favor of Indianapolis in a tax fight with a group of homeowners. . . . The justices, voting 6-3, said the city didn’t violate the Constitution when it forgave sewer-system debt owed by some homeowners while refusing to give refunds to those who had already paid. . . . “The Constitution does not require the city to draw the perfect line nor even to draw a line superior to some other line it might have drawn,” Justice Stephen Breyer wrote for the court. “It requires only that the line actually draw be a rational line.”

Supreme Court protects Secret Service agents guarding Cheney

By Robert Barnes, The Washington Post   

06-04-12 -- The Supreme Court ruled unanimously Monday that Secret Service agents are shielded from a lawsuit brought by a man who said his free speech rights were violated when he was arrested after confronting then-Vice President Dick Cheney. . . . The court took a narrow path in finding for agents Virgil D. “Gus” Reichle Jr. and Dan Doyle. Although the government wanted broad protection for Secret Service agents who are protecting the nation’s leaders, the court ruled only that the two men could not be sued because the state of the law was unclear when Steven Howards was arrested in 2006 at a Colorado shopping center. . . . Government officials generally have immunity from civil lawsuits unless they violate rights that are “clearly established,” so that an official understands that “what he is doing violates that right,” Justice Clarence Thomas wrote for the court.

Campaign donations convictions stand

Lyle Denniston, SCOTUSblog 

06-04-12 -- Staying out of the increasingly controversial use of the criminal law to police political campaign donations, the Supreme Court chose on Monday to leave undisturbed the convictions of an ex-governor and a campaign contributor who sought to test the issue anew.   The action had no direct connection to the recent case of the failed criminal prosecution of former presidential candidate John Edwards, but that case has added to the legal controversy.  The Court took no action Monday on any of the seven new cases filed by Guantanamo Bay prisoners, leaving those to be rescheduled. . . . The Court granted review of one new case, Bailey v. United States (docket 11-770), that will clarify the authority of police to detain a suspect while they are waiting to carry out a search warrant.   The specific issue is whether police may hold a suspect who has left the place where a search is to be carried out, and is then kept in custody until the search is completed.  Federal and state courts are split on the issue, which involves the interpretation of the Supreme Court’s 1981 decision in Michigan v. Summers.

High court allows Siegelman, Scrushy corruption convictions to stand

By Bill Mears, CNN Supreme Court Producer  

06-04-12 -- The public corruption and bribery convictions of former Alabama Gov. Don Siegelman and HealthSouth CEO and founder Richard Scrushy will stand after the Supreme Court rejected their separate appeals Monday. . . . The men were convicted in a political payback scheme. A jury found the governor had named Scrushy to a state regulatory board in exchange for $500,000 in campaign donations. . . . After years of litigation, the justices in an unsigned order allowed the criminal convictions to stand. . . . The specific question was whether a campaign contribution can constitute bribery if the contribution was not made in "explicit" exchange for a promise of an official act. Lawyers for the defendants said it cannot in their failed appeal to the high court.

'Influence, gratitude, access not corruption'


06-03-12 -- The U.S. Supreme Court will go behind closed doors June 14 to decide what to do about Montana's cheeky slap at Citizens United vs. FEC, the high court ruling that opened the gates to hundreds of millions in corporate independent political expenditures. . . . Those expenditures even now are funding an endless stream of attack ads on the air waves and elsewhere, and the huge Republican advantage in raising those funds from corporations, secret non-profits and individuals could hand Mitt Romney the presidential election. . . . Behind those closed doors, the nine justices could decide to hear argument and review the Montana Supreme Court decision upholding that state's ban on corporate political contributions -- despite the instructions in Citizens United. . . . They could let the state court ruling stand -- highly unlikely. They could put the decision off to a later conference. Or they could "summarily reverse" the state court ruling, undoing the Montana Supreme Court decision without hearing argument.

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May 2012

Supreme Court won't review police Taser use cases

Thomson Reuters News & Insights    

05-29-12 -- The U.S. Supreme Court on Tuesday let stand a ruling that police used excessive force when they shot a Taser stun gun on a seven-month pregnant woman and on a wife involved in a domestic dispute. . . . The justices declined to review a ruling by a the 9th Circuit Court of Appeals in California that found the constitutional rights of the women to be violated because they did not pose a threat to the safety of the officers. . . . The appeals court ruling was mixed, as it also held that the officers had immunity because the law on the use of stun guns was not clearly established at the time of the 2004 and 2006 incidents. . . . The Supreme Court cases had drawn attention because more police officers nationwide now use stun guns and there have been a growing number of lawsuits seeking damages over use of the devices that incapacitate people through a jolt of electricity.

Court: Judges shouldn't have overturned conviction

Associated Press | Fox News  

05-29-12 -- The Supreme Court has overturned an appeals court decision that would have released a Pennsylvania man convicted of helping to kill a woman in an alley nearly two decades ago. . . . A federal appeals court ruled that there wasn't enough evidence to uphold the conviction of Lorenzo Johnson. Johnson was convicted of first-degree murder and conspiracy as an accomplice in the December 1995 shotgun murder of Taraja Williams. . . . The 3rd U.S. Circuit Court of Appeals said the evidence at trial was insufficient to prove that Johnson intended the victim's death, and a federal judge ordered Johnson's release.

Supreme Court to Decide Whether Losing Plaintiffs Must Pay Costs in Fair Debt Collection Cases

By Debra Cassens Weiss, ABA Journal

05-29-12 -- The U.S. Supreme Court has agreed to decide whether a collection agency that wins dismissal of a federal fair debt collection suit can collect costs without a showing of bad faith or harassment by the plaintiff. . . . The Supreme Court granted cert today, SCOTUSblog reports. . . . The plaintiff, student debtor Olivea Marx, had contended that the General Revenue Corp. violated federal law by faxing her employer a form seeking employment information with “Sallie Mae” listed in the subject line, according to the cert petition (PDF).

Spying on the American public

The U.S. Supreme Court should hear argument in a case central to the law that allows spying on U.S. citizens without a warrant in the name of counter-terrorism, just as a partisan Congress decides whether to renew the law later this year.

By Michael Kirkland, UPI     

05-27-12 -- The U.S. Supreme Court should hear argument in a case central to the law that allows spying on citizens in the United States without a warrant in the name of counter-terrorism just as a partisan Congress decides whether to renew the law. . . . The justices have agreed to hear argument next term on whether a group of organizations and individuals has "standing" to challenge the latest version of the Foreign Intelligence Surveillance Act. To challenge a government practice or law as unconstitutional, you to have "standing." You acquire standing -- the right to sue -- by showing an injury. . . . In the simplest terms, the law allows the government to eavesdrop on U.S. electronic communications -- phone calls, e-mails and other forms -- without a warrant in the United States as long as one end of the communication is outside the United States.

U.S. Supreme Court: Jacksonville man can be tried again

By Peter Urban, Stephens Washington Bureau Arkansas News 

05-24-12 -- The U.S. Supreme Court this morning affirmed an Arkansas Supreme Court decision that will allow the state to retry Alex Blueford of Jacksonville on capital murder charges. . . . Blueford’s first trial, in the 2008 death of 20-month-old Matthew McFadden Jr., ended in a mistrial after jurors reached an impasse over manslaughter charges. The jury’s foreman had earlier told the judge the panel had voted unanimously to dismiss capital murder and first-degree murder charges. . . . The Arkansas Supreme Court ruled last year that Blueford should be retried on the original murder charges. Clifford Sloan, an attorney representing Blueford, appealed to the U.S. Supreme Court, arguing that the Constitution protected Blueford from being tried twice for the same crime.

Supreme Court Rules Against Homeowners Who Sued Quicken Loans over Alleged Unearned Fees

By Debra Cassens Weiss, ABA Journal

05-24-12 -- The U.S. Supreme Court has ruled for Quicken Loans in a suit filed by three couples who claim they were charged “unearned fees” at closing in violation of federal law. . . . In a unanimous opinion (PDF), the court ruled that the federal law bars unearned fees only when they are part of a fee-sharing arrangement. At issue was Section 2607(b) of the Real Estate Settlement Procedures Act, which provides that no one may accept "any portion, split, or percentage" of any closing charges "other than for services actually performed.” . . . Two of the couples claimed they were charged loan discount fees of around $1,000, but they did not get lower interest rates in return, according to the opinion by Justice Antonin Scalia. Another couple took issue with a $575 “loan processing fee” and a “loan origination” fee of more than $5,100.

Court: Children conceived after father's death not entitled to benefits

By Marcia Coyle, The National Law Journal  

05-21-12 -- In a case at the intersection of law and modern reproductive technology, the U.S. Supreme Court on Monday ruled that state inheritance laws will determine whether children conceived after their fathers' death are eligible for Social Security survivors benefits. . . . The justices in a unanimous decision said twins conceived by Karen Capato through in vitro fertilization after her husband's death from cancer did not qualify for survivor benefits because of Florida's intestacy law. . . . In Astrue v. Capato, the justices examined the interplay of several sections of the Social Security Act. Although Robert and Karen Capato's children met the definition of "child" under act, the Court found they did not meet the act's requirements for family status in order to qualify for survivor benefits. One of those requirements was whether the children could inherit under the intestacy law of their father's residence at death. . . . Robert Capato died in Florida and that state's intestacy law permits children born posthumously to inherit only if conceived during the decedent's lifetime. . . . The high court ruling overturns a decision by the U.S. Court of Appeals for the 3rd Circuit.

Supreme Court Rules Immigrants Can’t Avoid Deportation Based on Length of Parents’ Stay

By Debra Cassens Weiss, ABA Journal

05-21-12 -- Two immigrants who came to the United States as children have failed to persuade the U.S. Supreme Court that they should be able to use the length of their parents’ stay and legal residency here to avoid deportation for criminal offenses. . . . Justice Elena Kagan wrote the unanimous opinion (PDF) rejecting the claims of Carlos Gutierrez, accused of smuggling three minors into the country, and Damien Sawyers, convicted of a drug offense.

In interpreter fight, Alito scours the dictionaries

By Marcia Coyle, The National Law Journal 

05-21-12 -- It was the term's battle of the dictionaries, and it ended with a rare flash of humor from a justice on the bench. . . . The U.S. Supreme Court on Monday held that fees for translating documents in federal lawsuits are not among the costs that may be awarded to the prevailing parties. . . . The federal Court Interpreters Act includes "compensation of interpreters" among a number of types of costs that courts may award. However, the act does not define "interpreter." . . . Writing for a 6-3 majority in Taniguchi v. Kan Pacific Saipan, Justice Samuel Alito said the ordinary meaning of "interpreter" is one who translates orally from one language to another. . . . "We are gratified that the Court recognized the properly limited scope of the provision of the costs statute governing interpreters," said Michael Fried of Jones Day, who argued the case for Kouichi Taniguchi.

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Who gets to keep shipwreck treasure? Supreme Court declines Spain case

Lower courts ruled that $500 million in coins that US treasure hunters had recovered belongs to Spain. The Supreme Court turned away the salvagers’ appeal Monday.

By Warren Richey, The Christian Science Monitor Staff writer

05-14-12 -- The US Supreme Court on Monday declined to take up the appeal of American treasure hunters who were forced earlier this year to surrender $500 million in silver and gold coins they recovered from the wreck of a Spanish warship 3,000 feet deep in international waters. . . . The high court took the action without comment. . . . A federal judge in Tampa, Fla., and the Eleventh Circuit Court of Appeals in Atlanta ordered Odyssey Marine Exploration Inc. of Tampa to surrender the coins and other artifacts to Spain. . . . The courts ruled that the recovered cargo had come from the Spanish frigate Mercedes, which exploded and sank in 1804 while returning from South America. The ship’s remains and its cargo were the sovereign property of Spain, the courts said.

A Ticket, 3 Taser Jolts and, Perhaps, a Trip to the Supreme Court

Sidebar By Adam Liptak, New York Times 

05-14-12 -- There have been many hundreds of varied rulings in the lower courts on when the use of Taser stun guns by the police amounts to excessive force, and sooner or later the Supreme Court will have to bring order to this area of the law. Next week, the justices are scheduled to decide whether to hear an appeal from three Seattle police officers who say they are worried about the future of what they call “a useful pain technique.” . . . The case involves Malaika Brooks, who was seven months pregnant and driving her 11-year-old son to school in Seattle when she was pulled over for speeding. The police say she was going 32 miles per hour in a school zone; the speed limit was 20. . . . Ms. Brooks said she would accept a ticket but drew the line at signing it, which state law required at the time. Ms. Brooks thought, wrongly, that signing was an acknowledgment of guilt. . . . Refusing to sign was a crime, and the two officers on the scene summoned a sergeant, who instructed them to arrest Ms. Brooks. She would not get out of her car.

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April 2012

Supreme Court to follow up on immigration lawyer case

By James Vicini, Thomson Reuters News & Insights 

04-30-12 -- The U.S. Supreme Court agreed on Monday to decide how broadly to apply its two-year old ruling that immigrants have a constitutional right to effective assistance of counsel and must be told about possible deportation stemming from a guilty plea. . . . The justices said they would consider whether its March 31, 2010, ruling would apply retroactively to previous convictions or would only to convictions after that date. Defense lawyers said in their Supreme Court appeal that the issue has profound practical significance. . . . In its original ruling, the Supreme Court decided by a 7-2 vote that an immigrant's constitutional right to effective counsel was violated when his attorney mistakenly told him he could plead guilty to drug charges without being deported. . . .Immigrant rights advocates said at the time the decision could potentially affect thousands of immigrants every year.

Arizona immigration law may get Supreme Court support

By Tony Mauro, The National Law Journal  

04-25-12 -- The Supreme Court appeared ready on Wednesday to support at least part of Arizona's controversial immigration law, in spite of pleas by the Obama administration to keep the federal government as the predominant force in setting immigration policy. . . . The politically charged case of Arizona v. United States drew crowds and interest both inside and outside the Court, rivaling last month's landmark arguments in the Affordable Care Act cases. After Wednesday's arguments were over, shouting protesters in front of the Court forced the media stakeout into retreat onto the Court's marble plaza when Arizona Gov. Jan Brewer, a supporter of the law, was about to address reporters. . . . Inside the Court chamber, Solicitor General Donald Verrilli Jr. was under intense scrutiny after what some saw as a faltering performance in defense of the health care law in March. While still soft-spoken and cautious in his delivery, Verrilli seemed by the end of his time to make his arguments in favor of federal supremacy, in spite of hostile questioning, most notably from Justice Antonin Scalia.

Government's Error Leads to Shift in Deportation Practices
By Jess Bravin, Staff Reporter of The Wall Street Journal          

04-25-12 -- The Justice Department said Tuesday that it inadvertently misled the Supreme Court in January 2009 by asserting that officials routinely "facilitate" the return of erroneously deported immigrants, but it said new procedures would now ensure that the government's practices matched its earlier assertions. . . . The issue mainly involves lawful U.S. residents the government seeks to deport, typically because they have been convicted of a crime. The government often deports such people while their immigration appeals are pending in federal court. . . . In a letter to the court Tuesday, the solicitor general's office made a rare admission: It said it had to "clarify and correct" the 2009 statement. The office said it had wrongly implied that the government had systematic procedures to ensure deported immigrants who win their appeals can return to the U.S. . . . Chief Justice John Roberts cited that assertion in a decision finding that deportation while an appeal was still pending didn't necessarily impose irreparable harm on immigrants.

High Court Limits IRS Time to Challenge Tax Shelters

By Greg Stohr, Bloomberg    

04-25-12 -- The U.S. Supreme Court ruled against the Internal Revenue Service in a decision that may prevent the collection of $1 billion from people who used a tax shelter popular in the late 1990s and early 2000s. . . . The justices, voting 5-4, said the IRS has only three years to challenge so-called Son-of-BOSS tax shelters. Lower courts had disagreed on the question, with some saying the IRS had up to six years. . . . Justice Stephen Breyer wrote for the court that the case is governed by a 1958 high court decision that interpreted “identical” language in an earlier version of the law. . . . “It would be difficult, perhaps impossible, to give the same language here a different interpretation without effectively overruling” that decision, Breyer wrote.

High court says Colo. inmate can pursue appeal

Associated Press 

04-24-12 -- The Supreme Court says federal courts cannot throw out a criminal defendant's appeal for missing a deadline when state officials do not object to the overdue filing. . . . The court on Tuesday unanimously reversed a ruling by the federal appeals court in Denver that dismissed a convicted murderer's appeal of his life sentence because it was filed too late. . . . Patrick Wood was convicted of first-degree murder following the killing of a pizza shop assistant manager in 1986. Colorado officials said they would not challenge his failure to meet a court deadline for filing paperwork. But the 10th U.S. Circuit Court of Appeals enforced the deadline and threw out Wood's appeal.

Torture Suits Against Companies Blocked by Top U.S. Court

By Greg Stohr, Bloomberg  

04-18-12 -- The U.S. Supreme Court limited the reach of a law that protects American citizens from torture in other countries, ruling that victims can sue only individuals, not organizations or corporations. . . . The justices unanimously threw out a suit filed against the Palestinian Authority and Palestine Liberation Organization by the relatives of Azzam Rahim, an American allegedly tortured and murdered in the West Bank during the 1990s. . . . The ruling is a prelude to a dispute the court will take up in its next term, when it will use a case involving Royal Dutch Shell Plc (RDSA) to consider the scope of a similar law that applies to non-citizens, the Alien Tort Statute.

Supreme Court weighs whether law reducing crack cocaine sentences is retroactive

By Robert Barnes, The Washington Post  

04-17-12 -- It was in a rare burst of bipartisanship that Congress in 2010 passed the Fair Sentencing Act, which attempted to close the sentencing gap between those convicted of crack cocaine offenses, who tend to be black, and those with powdered cocaine offenses, who tend to be white. . . . But Congress left a key bit of the legislation unexplained: whether the reduced sentences for crack should apply to those who committed their crimes before the law took effect but who were not sentenced until afterward. . . . An hour-long argument at the Supreme Court on Tuesday did not seem to produce a definitive answer. . . . Lawmakers intended for the new sentencing structure to take effect immediately, said Stephen B. Eberhardt, a lawyer arguing for two Illinois men who did not receive the benefits of the measure even though they were sentenced after President Obama signed it in August 2010.

Supreme Court reverses 9th Circuit to shield private lawyers

By David G. Savage, Los Angeles Times 

04-17-12 -- The Supreme Court has shielded private lawyers and possibly others working for cities, counties and school districts from being sued for violating the rights of citizens and employees. . . . A 9-0 decision announced Tuesday blocks a lawsuit against a Southern California attorney who was accused of ordering an illegal search of a firefighter’s house. . . . A judge had shielded the fire chief of the Inland Empire city of Rialto and two fire department inspectors from being sued for the allegedly illegal search under the rule that gives public employees a “qualified immunity” from suits when they are doing their jobs. But the U.S. 9th Circuit Court of Appeals said that this governmental immunity did not extend to Steve Filarsky, a private lawyer who advised the city on conducting internal investigations.

At high court, big pharma finds overtime case a tough pill to swallow

By Marcia Coyle, The National Law Journal 

04-16-12 -- In arguments Monday in the U.S. Supreme Court, the pharmaceutical industry warned of "massive retroactive liability" if their sales representatives are not exempt from federal overtime pay requirements. . . . In Christopher v. SmithKline Beecham, the justices took up the question of whether pharmaceutical sales reps, who promote but do not sell their company's drugs to doctors, are "outside salesmen" exempt from minimum wage and overtime pay requirements in the Fair Labor Standards Act (FLSA). . . . "Ultimately the decision whether to go one way or another on this issue has remarkable significance for retroactive imposition of liability," said Paul Clement of Washington, D.C.'s Bancroft, counsel to SmithKline Beecham.

Supreme Court Grants Cert in Copyright Case Involving EBay Sales of Texts Bought Overseas

By Debra Cassens Weiss, ABA Journal

04-16-12 -- After splitting 4-4 in a case involving discounted Omega watches, the U.S. Supreme Court is revisiting copyright protections for gray market goods in a case accepted today. . . . This time the case involves discounted textbooks purchased cheaply overseas then resold in the United States, SCOTUSblog reports. The case will be heard next term. . . . Supap Kirtsaeng claims the Copyright Act’s first-sale doctrine protects him from an infringement suit by textbook publisher John Wiley & Sons. The doctrine holds that copyright holders can’t stop the resales of their products.

Supreme Court to hear Ariz. pharmaceutical case

It pits drugmakers, sales reps over OT

by Ken Alltucker The Republic | -

04-14-12 -- A Mesa-based law firm will bring a case before the U.S. Supreme Court this week that could answer whether 90,000 pharmaceutical sales representatives nationwide are eligible for overtime pay. . . . The case, petitioned on behalf of former Gilbert residents Michael Shane Christopher and Frank Buchanan against pharmaceutical giant SmithKline Beecham/GlaxoSmithKline, centers on whether pharmaceutical sales representatives are eligible for overtime pay under the Fair Labor Standards Act. . . . The nation's high court also will address whether the U.S. Department of Labor has the authority to interpret its own regulations for overtime pay. The ruling could broadly impact businesses in other industries, too.

Arkansas Can Fight for $5.7M Flooding Award

By Barbara Leonard, Courthouse News Service  

04-03-12 -- The Supreme Court on Monday agreed to review whether the federal government should cover millions of dollars in Arkansas flooding damage. . . . The dispute involves the deaths of many oak trees on a 23,000-acre wildlife-management area in Arkansas. The Arkansas Game and Fish Commission attributes these dead trees fatally saturated the root systems caused by increased flooding of the Black River. . . . The Army Corps of Engineers acknowledged that it had released more water than planned from the Clearwater Dam between 1993 and 2000, but it claimed that the trees were killed by causes other than flooding. . . . After an 11-day trial in 2009, the claims court found the government responsible for an unconstitutional taking of the commission's property. It ordered the government to pay more than $5.6 million for the dead trees and more than $176,000 for a regeneration program "to address areas severely affected by invasive wetland species.

Supreme Court Upholds Strip Search of Man Arrested for Unpaid Fines, Emphasizes Jailhouse Security

By Debra Cassens Weiss, ABA Journal

04-02-12 -- The U.S. Supreme Court has upheld the strip search of a New Jersey man arrested on a warrant for a minor offense. . . . The defendant, Albert Florence, was stopped for speeding in March 2005 and arrested on an outstanding warrant for unpaid traffic fines. The warrant was in error; Florence had paid the fines. His lawyer had argued searches at two detention centers violated the Fourth Amendment, since the arrest was for a minor crime and there was no reasonable suspicion for the search. . . . The court ruled for detention officials in a 5-4 opinion (PDF). The searches, which did not involve touching by jail officials, “struck a reasonable balance between inmate privacy and the needs of the institutions,” Justice Anthony M. Kennedy wrote for the majority.

Government Witnesses Who Lie to Grand Juries Are Protected from Civil Suits, Supreme Court Says

By Debra Cassens Weiss, ABA Journal

04-02-12 -- An investigator accused of lying to a grand jury has the same immunity from civil suit as a witness at trial, the U.S. Supreme Court has ruled. . . . Justice Samuel A. Alito Jr. wrote the unanimous opinion (PDF). He said factors justifying absolute immunity for trial witnesses also apply to grand jury witnesses. In both contexts, fear of litigation could make witnesses reluctant to testify. And in both cases, witnesses who lie could be prosecuted for perjury. . . . Alito pointed out that a contrary ruling could encourage suits designed to discover the identities of grand jury witnesses. “Especially in cases involving violent criminal organizations or other subjects who might retaliate against adverse grand jury witnesses, the threat of such disclosure might seriously undermine the grand jury process,” Alito wrote.

March 2012

As health care arguments close, fate of law seems uncertain

Tony Mauro and Marcia Coyle, The National Law Journal  

03-28-12 -- As three historic days of oral argument at the Supreme Court came to a close Wednesday, the fate of the landmark Affordable Care Act seemed as uncertain as ever — if not more so — amid sharp divisions among the justices. . . . The justices heard arguments over the third and fourth issues they agreed to hear stemming from numerous challenges to the health care law. In hearings Monday and Tuesday, the justices discussed whether they even have jurisdiction to rule, and then whether the so-called "individual mandate" requiring individuals to buy a minimum level of health coverage oversteps the power of Congress to regulate interstate commerce.

Supreme Court Considers Impact of Striking Down Individual Mandate

By Tony Mauro, Posted by Sam Skolnik, The BLT, The Blog of the Legal Times

03-28-12 -- Supreme Court justices appeared sharply divided over what they should do with the Affordable Care Act if they decide that the central feature of the law, the individual mandate, is struck down. . . . On the third and final day of arguments over the landmark health care law, the choice, as Justice Ruth Bader Ginsburg put it, was between a "wrecking operation and a salvage job" — in other words, scrapping the entire law, or finding portions of it that can survive even without the requirement that most Americans buy a minimum level of insurance coverage. Justices found major problems with both alternatives, making it difficult to predict how they would rule. . . . Bancroft partner Paul Clement argued for striking down the entire law, asserting that this was an instance where "a half a loaf is worse" than nothing at all. But Deputy Solicitor General Edwin Kneedler argued that the best and most judicially modest approach would be to only strike down the related provisions that would require insurers to cover individuals regardless of medical history or pre-existing conditions. Both alternatives faced hostile questions from several justices.

On health care's first day, jurisdiction argument fails to stop the show

Tony Mauro, The National Law Journal  

03-26-12 -- The U.S. Supreme Court on Monday showed clear signs that it is ready to tackle the contentious issue of the constitutionality of the Affordable Care Act sooner rather than later. . . . On the first of three days of historic oral arguments on the health care law, the justices considered what could have been a show-stopping issue: whether the Court has jurisdiction to consider the issue now at all, or whether it has to wait until 2015, when the first taxpayer who refuses to buy health insurance under the so-called "individual mandate" is required to pay a penalty to the IRS. . . . For 90 minutes, the Court debated whether that penalty is a tax that would trigger the Anti-Injunction Act (AIA), an 1867 law that requires individuals to pay their tax before they can challenge the law that created the tax. . . . But none of the justices seemed to embrace that argument, indicating that they believe either that the penalty is not a tax or that, even if it is, the AIA is not a jurisdictional bar that prevents them from proceeding to the merits of the case. The justices will hear the merits arguments on Tuesday and Wednesday.

Myriad’s Human-Gene Patent Rehearing Ordered by High Court

By Greg Stohr and Susan Decker, Bloomberg

03-26-12 -- The U.S. Supreme Court (1000L) ordered a lower court to revisit whether human genes can be patented in light of the justices March 20 decision that limited the ability to obtain legal protection for some diagnostic medical tests. . . . The justices today ordered the U.S. Court of Appeals for the Federal Circuit to reconsider its decision that allowed patents on genetic material used in Myriad Genetics Inc. (MYGN) tests for breast and ovarian cancer. . . . The high court on March 20 said that patents shouldn’t be allowed on tests that look at, for instance, the proper dosage for a medicine based on a body’s reaction to a drug. Such tests merely cover natural phenomenon and aren’t inventions, the court ruled. The Federal Circuit, which specializes in U.S. patent law, must consider the effect of that ruling on the Myriad patents.

Supreme Court lets stand ruling that sides with transgender inmates

A Wisconsin law barring state funding for hormone treatments or sex-change operations for transgender prisoners was struck down, a ruling upheld on appeal. The Supreme Court declined the case. 

By Warren Richey, The Christian Science Monitor Staff writer

03-26-12 -- The US Supreme Court declined Monday to take up a case examining whether transgender prison inmates enjoy a constitutional right to government-funded sex change operations and hormone therapy. . . . The action leaves undisturbed a federal appeals court decision siding with transgender inmates in Wisconsin. . . .  Concerned about the use of state funding for ongoing hormone treatments that help certain male inmates look more female, lawmakers in Wisconsin passed the Inmate Sex Change Prevention Act. The law barred the use of any state funds for hormone treatments and/or sexual reassignment surgery. . . . Three Wisconsin inmates filed a class-action lawsuit. After a trial a federal judge struck down the 2006 law as a violation of the Eighth Amendment’s ban on cruel and unusual punishment. A panel of the Chicago-based Seventh US Circuit Court of Appeals agreed.

Supreme Court Declines Appeals on Religion in Public Education

By Mark Walsh "School Law" blog of Education Week

03-26-12 -- While the opening of arguments over the federal health care law was the main focus for the U.S. Supreme Court on Monday, it was also a regular day for opinions and orders. . . . And on its orders list, the high court declined to take up two interesting appeals involving religion in public education. . . . One involved an Idaho charter school challenging a state decision that it could not use "sectarian or denominational" religious materials in its curriculum, which upended its plans to use a "great books" curriculum that would include the Bible, the Koran, the Book of Mormon, works of Confucius, and others. . . . The other was an appeal from a California teacher who was ordered by administrators to remove banners from his classroom with such expressions as "In God We Trust" and "One Nation Under God."

Supreme Court Rules Courts Have a Say-So on Passport Question

By Debra Cassens Weiss, ABA Journal

03-26-12 -- The U.S. Supreme Court has ruled 8-1 that federal courts have the authority to wade into a dispute over a federal law that says Americans born in Jerusalem can list Israel as their birthplace. . . . The political question doctrine doesn’t bar the courts from hearing the case, according to the majority opinion (PDF) by Chief Justice John G. Roberts Jr. But Roberts punted the case back to the lower courts to resolve the constitutional issue: whether the federal law infringes the president’s power.

Supreme Court Accepts Dog Sniff Case Contending Fla. Supreme Court Ignored Probable Cause Precedent

By Debra Cassens Weiss, ABA Journal

03-26-12 -- The U.S Supreme Court has agreed to decide whether the Florida Supreme Court ignored precedent when it ruled on behalf of a defendant arrested after a drug-sniffing dog indicated his car contained contraband. . . . The Florida high court had ruled the alert by a trained dog does not establish probable cause for the search, according to the cert petition (PDF) in Florida v. Harris. An amendment to the Florida Constitution nearly 30 years ago brought the state’s search and seizure laws into conformity with Supreme Court decisions, the petition says.

Justices extend protections to plea bargain process

Tony Mauro, The National Law Journal  

03-21-12 -- Recognizing the dominance of plea bargains over trials in the criminal justice system, the U.S. Supreme Court voted, 5-4, on Wednesday to extend Sixth Amendment protections to the plea process and said defendants can sue their lawyers for ineffective assistance if they mishandle plea offers. . . . "Criminal justice today is for the most part a system of pleas, not trials," wrote Justice Anthony Kennedy in one of a pair of landmark decisions. Because of the modern-day importance of plea bargains, Kennedy said, defense lawyers have significant responsibilities "that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." . . . In a stinging dissent that underscored the importance of the rulings, Justice Antonin Scalia said from the bench that the rulings "open a whole new field of constitutionalized criminal procedure: the field of plea bargaining law." He added, "Until today, no one has thought that there is a constitutional right to a plea bargain." The rulings could open the door to a wide range of new litigation, including suit against prosecutors for their handling of the plea process.

Missouri v. Frye and Lafler v. Cooper Opinion (pdf)

EPA wetlands order can be challenged by land owners, Supreme Court rules

The Idaho couple, saying the ‘EPA used bullying and threats of terrifying fines’ to halt building of their dream home, thanks Supreme Court justices for ‘affirming’ their right to a court hearing.

By Warren Richey, The Christian Science Monitor Staff writer

03-21-12 -- The US Supreme Court Wednesday ruled unanimously in favor of an Idaho couple seeking to have their day in court to challenge an Environmental Protection Agency order that scuttled plans to build their dream home on a subdivided lot the EPA said was a federal wetland. . . . The couple, Chantell and Michael Sackett, had started to fill the home site with dirt and gravel to prepare for construction. But the EPA intervened, announcing that the property was a regulated wetland. Agency officials ordered the couple to restore the land to its original state or face up to $75,000 a day in fines. . . . The Sacketts disputed the EPA’s wetland designation and filed a lawsuit to litigate the issue in federal court. . . . The EPA argued that the Sacketts’ lawsuit must be dismissed because the EPA’s Clean Water Act compliance order did not amount to final agency action.

Could SCOTUS Prometheus ruling be the end of human gene patents?

by Terry Baynes, at Alison Frankel's "On the Case" Thomson Reuters News & Insights   

03-21-12 -- The Mayo Clinic and its lawyers at Mayer Brown weren't the only ones to welcome the U.S. Supreme Court's ruling Tuesday that Prometheus Laboratories cannot patent a medical test that relies on correlations between drug dosages and treatment. Lawyers at the American Civil Liberties Union see the high court's unanimous decision as a good omen for their own case challenging the patentability of human genes. . . . The plaintiffs in both cases have relied on the same argument: that the patents in dispute are naturally occurring phenomena that do not qualify for patent protection. The Supreme Court bought that argument wholeheartedly in Mayo's case. . . . "We conclude that the patent claims at issue here effectively claim the underlying laws of nature themselves. Those claims are consequently invalid," wrote Justice Stephen Breyer. Just as Einstein could not have patented E=mc2 and Newton could not have laid claim to the law of gravity, Breyer wrote, so Prometheus cannot patent a test kit that correlates a patient's blood chemistry with the best drug dosages for treatment. The decision overturned a ruling by the U.S. Court of Appeals for the Federal Circuit upholding Prometheus's patents.


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Citing a Need to Encourage Scientific Discovery, Supreme Court Strikes Down Lab’s Patents

By Debra Cassens Weiss, ABA Journal

03-20-12 -- The U.S. Supreme Court has ruled for Mayo Clinic in its challenge to a competitor's patents on blood test methods to determine correct drug dosages. . . . In a unanimous opinion (PDF), the court said the patents held by Prometheus Laboratories Inc. are invalid because they are based on laws of nature. Justice Stephen G. Breyer wrote the decision, emphasizing a concern that patent laws should not stand in the way of future innovation. . . . At issue are patents on a process for analyzing blood tests to measure the effects of varying dosages of thiopurine drugs, used to treat autoimmune diseases such as Crohn’s disease and ulcerative colitis. The patents “set forth laws of nature”—the relationship between concentrations of metabolites in the blood and the likelihood the thiopurine drugs will help or cause harm, Breyer said.

Supreme Court Rules for Inmate With Double Claims of Ineffective Assistance; Scalia Detects a ‘Sham’

By Debra Cassens Weiss, ABA Journal

03-20-12 -- A prisoner who claimed he received ineffective assistance at trial and once again at his first opportunity to raise the claim on review got some help from the U.S. Supreme Court today. . . . The court, in an opinion (PDF) by Justice Anthony M. Kennedy, refused to address whether convicted sex offender Luis Mariano Martinez had a constitutional right to effective assistance of counsel in the state collateral appeal. But the court held in a 7-2 opinion that ineffective assistance by the appellate lawyer could excuse Martinez’s failure to raise the ineffective assistance claim, allowing a federal court to consider the issue. . . . Justice Antonin Scalia took aim at the opinion in a dissent joined by Justice Clarence Thomas, saying its claim of restraint "insults the reader's intelligence."

States Shielded From Medical-Leave Suits by U.S. High Court

By Greg Stohr, Bloomberg News  

03-20-12 -- The U.S. Supreme Court shielded states from claims that they illegally denied medical leave to workers, dividing along ideological lines in a clash about the federal government’s power over the states. . . . The justices, voting 5-4, ruled against Daniel Coleman, a Maryland state court employee who was fired after requesting medical leave. The majority said states can’t be sued for damages for violating the sick-leave provisions of the U.S. Family and Medical Leave Act. . . . The decision marks a shift for the court, giving new life to a line of rulings in the 1990s that bolstered states’ legal immunity and split the nine justices. That movement came to a halt in 2003, when the court said state workers could seek damages for violations of other provisions in the federal family-leave law.

Supreme Court denies campus groups' appeal

Bob Egelko, San Francisco Chronicle   

03-20-12 -- The U.S. Supreme Court on Monday turned down an appeal from a Christian sorority and fraternity challenging California State University's refusal to provide funding and other campus benefits to student groups that exclude members of other religions. . . . CSU denies official recognition and funding to student organizations that discriminate on the basis of race, religion, gender, national origin and sexual orientation. . . . The Christian groups at San Diego State argued that the policy itself was discriminatory for two reasons: The ban on gender-based admissions doesn't apply to sororities and fraternities, and secular organizations are allowed to make viewpoint-based distinctions - an immigrants'-rights group, for example, can exclude opponents of immigrants' rights and still receive funding.

Supreme Court refuses church-state case involving child sex abuse by clergy

US Supreme Court on Monday declined to take up an appeal by a man who says he was abused by a Roman Catholic priest decades ago. He sought to challenge the archdiocese's assertion that the First Amendment shields it from a lawsuit.

By Warren Richey, The Christian Science Monitor Staff writer

03-19-12 -- The US Supreme Court declined on Monday to take up a case challenging the use of the First Amendment’s separation of church and state as a shield to block a negligence lawsuit against a Roman Catholic archdiocese that hired and supervised a priest accused of being a pedophile. . . . The high court action ends an attempt to hold the Catholic Church legally accountable for alleged sexual abuse that took place more than 40 years ago. . . . The plaintiff in the case says he was twice sexually abused by a trusted parish priest when he was 13 or 14 years old. The priest, who has since died, was assigned to a Catholic Church in St. Louis.

Justices torn over whether children conceived in vitro are entitled to survivor benefits

Tony Mauro, The National Law Journal  

03-19-12 -- The U.S. Supreme Court on Monday struggled to fit new reproductive technology into old Social Security definitions as it heard arguments over whether a child conceived in vitro after the death of the father is entitled to survivor benefits. . . . The case, Astrue v. Capato, arose when the Social Security Administration rejected Karen Capato's application on behalf of her children for survivor benefits after the death of her husband, Robert "Nick" Capato. Nick Capato, diagnosed with cancer in 2000, preserved sperm so he and his wife could have children even if chemotherapy left him sterile. After he died in 2002, his widow used the sperm and gave birth to twins 18 months after his death. The U.S. Court of Appeals for the 3d Circuit sided with Capato, finding that the twins were the "undisputed biological children" of both parents.

Supreme Court to Expedite Release of Audio for Health Care Arguments

Posted by Tony Mauro, The BLT, The Blog of the Legal Times   

03-16-12 -- The Supreme Court just announced that it will provide same-day release of the audio of the historic oral arguments in the cases challenging the Affordable Care Act beginning March 26. . . . Citing the "extraordinary public interest in those cases," the Court's announcement said that both the audio and an unofficial transcript of the arguments would be posted on the Court's Web site as soon as possible after they occur on each of the three days of argument. That represents no change when it comes to the transcripts, which already are posted on the same day of the argument. But it does mean a new policy for the health care cases when it comes to the audiotapes. . . . Under current policy, the audio of arguments is released by the Court on the Friday after they take place -- a timetable that makes the tapes of little use for news media. Same-day release used to be allowed in select cases, beginning with Bush v. Gore in 2000, but it was pushed back to Fridays last term.

US Supreme Court Nixes Cameras During Oral Arguments in Challenge to Obama Health-Care Law

By Martha Neil, ABA Journal

03-16-12 -- There will be no cameras in the U.S. Supreme Court later this month during arguments over President Barack Obama's controversial health-care initiative. . . . However, the court in a ruling today has promised to release same-day audio and transcripts of the sessions, which will begin on March 26, reports the Associated Press.

The Impact of Corporate Amicus Briefs on the Supreme Court in Kiobel

Sue Reisinger, Corporate Counsel  

03-08-12 -- If general counsel ever wonder whether their companies’ friend-of-the-court briefs really have any impact, they only need to look at this week’s U.S. Supreme Court action involving the Alien Tort Statute. Two amicus briefs clearly helped sway the Justices into postponing a decision while exploring a new issue not raised by the parties. . . . The case was filed by Esther Kiobel and other Nigerian villagers who accused the defendants—Royal Dutch Petroleum (now Royal Dutch Shell) of the Netherlands and two other Shell subsidiaries—of aiding human rights abuses by Nigeria’s military. The narrow question presented on appeal was whether corporations, as opposed to individuals, may be held liable for violations of international law under the statute. . . . But during oral arguments in late February, Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito pursued questions about the extraterritorial application of the ATS.

U.S. Supreme Court move backs game warden power

By Denny Walsh, The Sacramento Bee

03-06-12 -- The claim of an unconstitutional search by a San Diego fisherman who got caught with an out-of-season lobster was rebuffed Monday by the U.S. Supreme Court. . . . In denying review, the high court let stand a California Supreme Court opinion in June that people who hunt and fish have fewer of the privacy rights guaranteed by the U.S. Constitution's Fourth Amendment. . . . The state high court granted game wardens the authority to stop, question and search citizens without a warrant or even without probable cause to believe a law has been broken. . . . All the warden needs, the California court ruled, is knowledge that a person is or has been fishing or hunting.

Supreme Court Orders Reargument in Alien Tort Statute Case

by Marcia Coyle,  The BLT, The Blog of the Legal Times

03-05-12 -- The U.S. Supreme Court on Monday ordered reargument in a major challenge involving lawsuits against corporations for human rights violations under the Alien Tort Statute. . . . Kiobel v. Royal Dutch Petroleum originally asked the justices whether corporations could be sued under the 1798 federal law. That question was argued on Feb. 28. In Monday’s order, the justices directed the parties to file supplemental briefs on whether the statute allows federal courts to hear lawsuits alleging international law violations that occur outside of the territory of the United States. . . . The Alien Tort Statute (ATS) authorizes federal district courts to hear civil actions by aliens for torts committed in violation of the law of nations or a treaty of the United States.

Kagan Opinion Hits Government ‘Inventiveness’ on Substitute Counsel Standard

By Debra Cassens Weiss, ABA Journal

03-05-12 -- The U.S. Supreme Court has ruled against a California inmate who contends he should have been permitted to change his court-appointed counsel just two weeks before a federal court denied his 10-year-old habeas petition. . . . Justice Elena Kagan wrote the unanimous opinion (PDF) finding that a federal court did not abuse its discretion when it denied new counsel to Kenneth Clair, convicted of killing a neighbor during a 1984 burglary. Kagan said the courts should use an “interests of justice” standard in evaluating substitution of counsel motions by indigent defendants in capital cases, the same standard used in noncapital cases.

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February 2012

U.S. Supreme Court Rules Pre-emption Defeats Tort Claims of Railroad Worker

By Debra Cassens Weiss, ABA Journal

02-29-12 -- The U.S. Supreme Court has ruled that federal law pre-empts tort claims by the estate of a railroad worker who died after contracting malignant mesothelioma. . . . The majority opinion (PDF) by Justice Clarence Thomas said the design defect and failure to warn claims are pre-empted by the Locomotive Inspection Act. The ruling defeats the lawsuit filed by the estate of George Corson, who had worked on locomotive brake shoes containing asbestos before he became ill.

Free speech issue bypassed

Lyle Denniston Reporter, SCOTUSblog   

02-27-12 -- Government employees who get into trouble for disobeying a superior’s plea to file a report that the employee thinks is false and believes will contribute to covering up misconduct will get no legal guidance on their plight from the Supreme Court, even though lower courts are in dispute over how to decide that issue.  Without comment, the Court on Monday denied review in two new cases, raising that First Amendment free-speech question from opposite sides. . . . The Court had been asked, in separate cases from New York and Washington, D.C.,  to further clarify its decision five years ago in Garcetti v. Ceballos, denying First Amendment protection to public employees for remarks they made in the course of their official duties.   Federal appeals courts have since split on whether that denial of protection extends even to a situation where a worker has been fired or otherwise disciplined for refusing to file an official report about their work, when superiors had demanded that the report be submitted in a form that would be false and could conceal wrongdoing within the agency.   The Justices’ refusal to step into that controversy leaves it to be worked out further among the lower courts, meaning that public employees will have different legal rights depending upon where they live and work.

Supreme Court to hear corporate human rights case

By James Vicini, Reuters  

02-27-12 --The Supreme Court will weigh next week whether corporations can be sued in the United States for suspected complicity in human rights abuses abroad, in a case being closely watched by businesses concerned about long and costly litigation. . . . The high court on Tuesday will consider the reach of a 1789 U.S. law that had been largely dormant until 1980, when human rights lawyers started using it, at first to sue foreign government officials. Then, over the next 20 years, the lawyers used the law to target multinational corporations. . . . The case before the court pits the Obama administration and human rights advocates against large companies and foreign governments over allegations that Royal Dutch Shell Plc helped Nigeria crush oil exploration protests in the 1990s. . . . Administration attorneys and lawyers for the plaintiffs contend corporations can be held accountable in U.S. courts for committing or assisting foreign governments in torture, executions or other human rights abuses.



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Court wrestles with lies and the First Amendment

Tony Maur, The National Law Journal  

02-22-12 -- During an intense hour of debate before the U.S. Supreme Court on Wednesday that touched on the harms and benefits of lying, the dramatic high point came when Chief Justice John Roberts Jr. asked if a "pure lie" had any value under the First Amendment. . . . Federal public defender Jonathan Libby fumbled for an answer, positing that author Samuel Clemens' creation of his false Mark Twain persona had value. But that did not cut it for Roberts, so Justice Stephen Breyer interjected with a historic lie that saved lives and no one would want to punish. . . . "Obvious example: Are there Jews hiding in the cellar? No!" Breyer said with theatrical emphasis, recalling the days of World War II when Europeans gave safe haven to Jews who were being hunted down by Nazis. . . . But whether that honorable lie will lead the Court to strike down the law under debate on Wednesday is far from clear. At issue in U.S. v. Alvarez is whether the Stolen Valor Act of 2006, which makes it a crime to falsely claim winning a military honor, violates the First Amendment.

Supreme Court Rejects Montana’s ‘Short Interruptions’ Approach in Riverbed Dispute

By Debra Cassens Weiss, ABA Journal

02-22-12 -- The U.S. Supreme Court has ruled against the state of Montana after diving into a riverbed rights dispute. . . . Justice Anthony M. Kennedy wrote the opinion (PDF) for a unanimous court favoring a company that operates hydroelectric dams on three rivers in the state: the Missouri, the Madison and Clark Fork. . . . Montana had asserted it owned the disputed riverbeds, entitling it to at least $41 million in rent from the company, PPL Montana. The energy company had been paying rent to the federal government. . . . The Montana Supreme Court had granted summary judgment to the state, but the U.S. Supreme Court reversed in an opinion that found the lower court had used the wrong standard to determine ownership.

Day laborers win Supreme Court free-speech case

Bob Egelko, San Francisco Chronicle  

02-22-12 -- Day laborers in Western states including California scored a legal victory Tuesday when the U.S. Supreme Court let stand a lower-court ruling declaring that cities violate free speech when they make it a crime to seek work from passing drivers. . . . The case comes from the Los Angeles suburb of Redondo Beach and affects dozens of cities in California and other states that have passed or considered bans on asking for work from the sidewalk. . . . In the Bay Area, federal courts barred Mountain View and Los Altos from enforcing similar laws nearly a decade ago, said Thomas Saenz, general counsel of the Mexican American Legal Defense and Educational Fund, which led the legal challenges. Many day laborers in California are Latino.

High court rejects formal, binding ethics rules

By Bill Mears, CNN Supreme Court Producer  

02-21-12 -- The Supreme Court has rejected congressional calls for the justices to adhere officially to the same ethics rules binding on other federal judges, including when to recuse in cases involving possible conflicts of interest. . . . "The Court does not plan to adopt the Code of Conduct for United States Judges through a formal resolution," Chief Justice John Roberts wrote in a letter released Tuesday to Senate Judiciary Chairman Patrick Leahy, D-Vermont. . . . But Roberts said he and his eight colleagues would -- on their own initiative -- continue to follow the same rules as other judges when it comes to accepting and reporting on outside income, honoraria, and gifts.

Do grandparents get visitation rights? Supreme Court declines case

The Supreme Court declined to hear a case in which grandparents demanded to visit their grandchildren but the parents intervened. The lack of a decision leaves no clear constitutional standard on the issue.

By Warren Richey, The Christian Science Monitor Staff writer

02-21-12 -- Two Alabama grandparents have lost their bid to have court-ordered regular visits with their teenaged granddaughters. . . . The US Supreme Court on Tuesday declined to take up the grandparent’s appeal in a case testing when a judge can force objecting parents to permit regular visits between a grandparent and grandchildren. . . . The high court action allows a decision of the Alabama Supreme Court to stand. The Alabama high court had ruled in favor of the parents who opposed court-intervention in the grandparent visitation dispute.

How much do you know about the US Constitution? A quiz.

All 50 states have grandparent visitation laws in which a judge can require regular access to one’s grandchildren. . . . But what is less clear is how a judge is to rule when the child’s parents are opposed to such grandparent visitation.

Is it a house or a boat? -- U.S. Supreme Court to decide case of Riviera Beach houseboat

By Willie Howard, Palm Beach Post Staff Writer 

02-21-12 -- The U.S. Supreme Court agreed Tuesday to hear the case of whether former Riviera Beach Marina tenant Fane Lozman's houseboat constitutes a "vessel" under maritime law. . . . In April 2009, Lozman watched federal marshals tow his two-story houseboat away from the city marina with his possessions on board. It was towed to the Miami River and later destroyed. . . . The city said Lozman failed to sign a dockage agreement that requires vessels moored at the marina to be registered, insured and capable of leaving the marina in case of an emergency. . . . Lozman claims his 57-foot houseboat was a "floating home" with no engines and no boat registration, and didn't meet the definition of a vessel. . . . "It was a square box," Lozman said. "It was just designed to sit in the water and float." . . . Lozman lost his case in U.S. District Court for the Southern District of Florida and the 11th Circuit Court of Appeals in Atlanta.

Affirmative action in college admissions goes back before Supreme Court

US Supreme Court is taking an affirmative action case about the University of Texas admissions policy, which permits race to be a factor in deciding which applicants are admitted.

By Warren Richey, Christian Science Monitor Staff writer

02-21-12 -- The US Supreme Court agreed on Tuesday to take up a potential blockbuster case testing the constitutionality of race-based admissions policies at the University of Texas. . . . The case, Fisher v. University of Texas (11-345), is being closely followed by conservative analysts who are hopeful the high court will use the Texas dispute to establish new constitutional limits on race-conscious affirmative action plans at public colleges and universities nationwide. . . . In announcing it would take up the case, the court also said Justice Elena Kagan would not take part in deciding the dispute. Before joining the high court, Justice Kagan served as solicitor general in the Obama administration.

Supreme Court: Miranda Warning Not Required for Inmate Questioned About Second Crime in Prison

By Debra Cassens Weiss, ABA Journal

02-21-12 -- The U.S. Supreme Court has ruled against a Michigan inmate who contended he should have received a Miranda warning before being interrogated in a prison conference room about sexual conduct with a 12-year-old boy. . . . The court ruled in a 6-3 opinion (PDF) against inmate Randall Lee Fields, who confessed to molestation while incarcerated on a disorderly misconduct charge. The dissenters were Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen G. Breyer. . . . Fields was told he was free to leave the conference room during the interrogation that lasted between five and seven hours, but he was not given a Miranda warning, according to the majority opinion by Justice Samuel A. Alito Jr.

Restaurateurs Who Pleaded Guilty in Tax Case Can Be Deported, Supreme Court Rules

By Debra Cassens Weiss, ABA Journal

02-21-12 -- A Japanese couple who ran a restaurant in California can be deported because of guilty pleas in a tax case involving underreported corporate income, the U.S. Supreme Court has ruled. . . . Akio Kawashima and his wife, Fusako Kawashima, were ordered deported after Akio pleaded guilty to making a false tax return and Fusako pleaded guilty to aiding and assisting preparation of the return. The loss to the government exceeded $10,000.

Supreme Court rebuffs Montana on corporate election spending

Justices block a decision by the state's high court to enforce a 100-year-old ban on such money in campaigns.

By David G. Savage, Washington Bureau  

02-17-12 -- The Supreme Court served notice Friday that it would not let states or state judges casually defy its much-disputed ruling in the Citizens United case that gave corporations a right to spend freely on election campaigns. . . . The justices put on hold enforcement of a Montana election law. But the case could force the high court to reconsider the corporate spending issue if its liberal justices insist on doing so. . . . On Dec. 30, Montana's high court said it was refusing to follow Citizens United as a binding precedent. Instead, the state justices affirmed Montana's 100-year-old anti-corruption law that forbids corporations from giving to candidates or spending to elect them. Adopted by its voters, it arose during the era of the "Copper Kings" who, as Mark Twain once put it, "bought legislatures and judges as other men buy food and raiment."

Supreme Court to hear military medal lying case

James Vicini, Reuters 

02-17-12 -- A U.S. law making it a crime to lie about receiving a military medal goes before the Supreme Court next week, with the Obama administration defending it for protecting the reputation of war heroes and opponents arguing it violated free-speech rights. . . . The justices will hear arguments Wednesday on whether an appeals court was correct to strike down the "Stolen Valor Act" adopted by Congress in 2006 for infringing on constitutional free-speech rights, a case about how far the government may go to prosecute false claims about military honors. . . . Opponents said the law swept too broadly, suppressed speech and covered innocent bragging, satire, parody and even statements that caused no harm, like those at issue in the case by a serial liar who held local political office in California. . . . The Obama administration argued in a written brief filed with the Supreme Court that the law was necessary to protect the integrity of the nation's system of military honors. It said the lies take away from the honor bestowed on deserving war heroes.

An ominous silence on the Supreme Court

Justice Elena Kagan should explain why she's not heeding the calls to recuse herself from the soon-to-be-heard Obama healthcare case.

By Eric J. Segall Op-Ed The Los Angeles Times

02-12-12 -- For months there have been repeated calls from Supreme Court watchers for Justices Clarence Thomas and Elena Kagan to recuse themselves from the healthcare litigation to be argued before the court in March. The controversy heightened in December when Chief Justice John G. Roberts Jr., in his year-end report, argued that not only should Supreme Court justices decide recusal issues solely for themselves, but that some ethical rules that apply to all other federal judges should not bind the justices. . . . Although the chief did not name any particular justice, there was no mistaking his implicit defense of Kagan's and Thomas' decisions (at least so far) not to recuse. In January, the court did nothing to quell the controversy when it unanimously (without Kagan participating), and with no comment, denied a formal motion by a conservative organization that the court hear arguments over whether Kagan should recuse herself from the Affordable Care Act litigation.

US Supreme Court won't permit Ohio execution

By Andrew Welsh-Huggins, AP Legal Affairs Writer

02-08-12 -- The U.S. Supreme Court on Wednesday added another wrinkle to Ohio's debate over how strictly the state's lethal injection procedures should be followed. . . . The court without comment refused to allow the execution of a condemned killer of an elderly couple to proceed, an execution delayed by federal courts over concerns that the state continues to deviate too often from its written rules for lethal injection. . . . Both the state and the inmate's attorneys were trying Wednesday to determine what comes next, but the decision is likely to further delay executions even though Ohio's procedures have never been ruled unconstitutional.

January 2012

Federal Meat Inspection Act preempts California's slaughter ban

Michael Doyle, McClatchy Newspapers  

01-23-12 -- The Supreme Court on Monday struck down California's ban on the slaughter of downed swine, saying the state strayed too far into federal territory. . . . In a case closely watched by other states as well as the multi-billion dollar livestock industry, the court’s liberal and conservative justices unanimously ruled that long-standing federal law preempted California’s 2008 measure. . . . "The California law runs smack into the (federal) regulations," Justice Elena Kagan wrote for the court. . . . Kagan's 14-page decision emphasized that the Federal Meat Inspection Act covers a "broad range of activities at slaughterhouses" and that it "expressly" preempts the state law.

Supreme Court limits police use of GPS to track suspects

By James Vicini, Thomson Reuters  

01-23-12 -- The Supreme Court for the first time ruled on Monday that police attachment of a GPS device to monitor a suspect's vehicle was a search protected by constitutional privacy rights, a test case involving new surveillance technology. . . . The high court's ruling was a defeat for the Obama administration, which defended the use of global positioning system devices without a warrant and without a person's knowledge as a legal way to monitor a vehicle on public streets. . . . The justices upheld a precedent-setting ruling by an appeals court that the police must first obtain a warrant to use a GPS device for an extended period of time to covertly follow a suspect.

Voting Maps for Texas Set Aside by High Court

By Greg Stohr, Bloomberg

01-20-12 -- The U.S. Supreme Court set aside judge-drawn voting districts for this year’s state and federal elections in Texas (BEESTX), telling a lower court to make the maps more similar to ones drawn up by the Republican-controlled state legislature. . . . The court’s unanimous ruling today may affect Democratic prospects to retake control of the U.S. House of Representatives. Republicans now control the chamber 242-192, with one vacancy. . . . The case tested the power of judges to redraw election maps and the strength of a central provision of the 1965 Voting Rights Act, which protects minorities. . . . The justices were considering the case on a fast-track schedule because of the impending Texas primary, now set for April 3 after a judge delayed the vote for a month.

Citing law firm's errors, high court rules for death row inmate

Tony Mauro, The National Law Journal  

01-18-12 -- The Supreme Court ruled Wednesday that an Alabama death row inmate should not be penalized for missing a crucial appeal deadline when the error was caused by his pro bono lawyers from New York's Sullivan & Cromwell. . . . The 7-2 ruling in Maples v. Thomas brings an end to a "lawyer's nightmare" case that showed how a series of law firm mailroom and notice errors as well as the departure of two associates could nearly result in a client's execution. In excruciating detail, Justice Ruth Bader Ginsburg recited the "uncommon facts" and mishaps that amounted to abandonment of convicted murderer Cory Maples by his Sullivan & Cromwell lawyers at the precise moment when Maples faced a filing deadline for his state post-conviction appeal. . . . "Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se," wrote Ginsburg. "In these circumstances, no just system would lay the default at Maples' death-cell door."

Court approves act extending copyrights to foreign works previously in public domain

Marcia Coyle, The National Law Journal  

01-18-12 -- The U.S. Supreme Court on Wednesday ruled that the Constitution did not bar Congress from extending copyright protection to previously free foreign works, such as Prokofiev's Peter and the Wolf. . . . The justices, in a 6-2 decision by Justice Ruth Bader Ginsburg, rejected arguments made by a group of musicians, conductors, publishers and others, who enjoyed free access to certain foreign works before Congress acted in 1994. The group had argued that once those works entered the public domain, they remained there forever. . . . "Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," wrote Ginsburg.

Supreme Court Allows Federal Suits for Nuisance Telemarketing

By Debra Cassens Weiss, ABA Journal

01-18-12 -- A Florida man who claims he was hounded by a financial services company trying to collect a student loan may sue in federal court, the U.S. Supreme Court has ruled. . . . Marcus Mims of Fort Lauderdale had filed a federal suit for violations of the federal Telephone Consumer Protection Act, which authorizes private suits in state courts. In a unanimous opinion (PDF), Justice Ruth Bader Ginsburg wrote that state courts don’t have exclusive jurisdiction.

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Court ponders immunity for private lawyers who take on public jobs

Marcia Coyle, The National Law Journal 

01-17-12 -- Private lawyers hired by local governments for special tasks will hesitate to provide candid advice if they are denied immunity when sued, the Supreme Court was told on Tuesday. . . . The justices heard arguments in Filarsky v. Delia, in which employment lawyer Steve Filarsky was denied qualified immunity in a civil rights lawsuit stemming from his assistance in a city’s internal affairs investigation. The U.S. Court of Appeals for the 9th Circuit held that everyone else involved — the city of Rialto, Calif., and its officers — was entitled to immunity. . . . “If you decide to take on this pro bono representation, or cut your rates out of public duty and the willingness to serve your government, guess what comes with it?” said Filarsky’s counsel, Patricia Millett of Akin Gump Strauss Hauer & Feld. “You alone will be holding the bag at the end of this for the governmental misconduct.”

Prayer Cases Turned Away by U.S. Supreme Court Justices

By Greg Stohr, Bloomberg

01-17-12 -- The U.S. Supreme Court refused to give government bodies more freedom to open sessions with prayers, rejecting a pair of appeals that sought to loosen the restrictions some lower courts have imposed. . . . The justices today left intact a federal appeals ruling that said a North Carolina county board was violating the constitutional separation of church and state by opening most of its sessions with a Christian prayer. The high court also refused to review a separate decision that barred prayers at meetings of a Delaware school board. . . . The Supreme Court hasn’t ruled on the constitutionality of prayer at government meetings since 1983, when the justices said lawmakers could begin sessions with nonsectarian prayers offered by a state-employed chaplain. In other contexts, the court under Chief Justice John Roberts has given governmental bodies more freedom to support religion.

Supreme Court to take up case of Miami man vs. drug-sniffing dogs

By Laura Green , Palm Beach Post Staff Writer  

01-16-12 -- An anonymous tipster reports that you're growing marijuana in your home. Police bring a drug-sniffing dog to your doorstep with no other evidence and without first obtaining a warrant. Has your privacy been invaded? . . . The U.S. Supreme Court will decide whether the dog sniff is an illegal search, hearing the case of a Miami man who was arrested after a dog alerted to the smell of marijuana from outside his home. . . . The case is expected to provide a pivotal decision on the definition of privacy. . . . It could clear the way for police to more routinely bring drug dogs to a home with no other evidence of a crime. Or, law enforcement officials say, it could stifle the use of an important tool in crime fighting.

Supreme Court to decide Chowchilla inmate's fate

By Michael Doyle – Fresno Bee Washington Bureau   

01-14-12 -- A Chowchilla prisoner will have her fate decided by the U.S. Supreme Court. . . . For inmate Tara Sheneva Williams, this is not a victory. Williams had won an appeal that overturned her conviction for a 1993 murder in Long Beach. But on Friday, the Supreme Court agreed to hear California's challenge to a lower court's decision. . . . "It's really sad," Williams' attorney Kurt David Hermansen said Friday. "She's a mom with two kids, and she was hoping to get out." . . . Williams will have to wait while the Supreme Court considers whether the lower appellate court went too far in overturning her conviction. Given the 9th U.S. Circuit Court of Appeals' general track record, Williams' hopes may be a long shot.

U.S. Supreme Court upholds Nashua conviction despite debate over reliability of eyewitness testimony

By Joseph G. Cote, The Nashua Telegraph Staff Writer  

01-14-12 -- A Nashua man’s break-in conviction from 2008 was upheld for a final time this week when the U.S. Supreme Court denied Barion Perry’s claims that an eyewitness was unfairly influenced before identifying him. . . . The ruling, handed down last week, upholds the felony theft conviction resulting from Perry’s theft of two radio speakers from a parked vehicle. New Hampshire public defender Richard Guerriero had argued before the U.S. Supreme Court in November that judges’ courts should take special precautions to ensure eyewitness testimony is accurate. . . . The court denied Guerriero’s arguments and upheld Perry’s felony conviction.


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Unanimous high court finds for church in EEOC fight

Tony Mauro, The National Law Journal  

01-11-12 -- A surprisingly unanimous Supreme Court on Wednesday endorsed a "ministerial exception" to employment discrimination laws, asserting that under the First Amendment, government must keep its nose out of the hiring and firing of clergy. . . . "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us," wrote Chief Justice John Roberts Jr. for the Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. "The church must be free to choose who will guide it on its way." . . . The ruling ends a lawsuit filed by the Equal Employment Opportunity Commission on behalf of Cindy Perich, a teacher and "commissioned minister" at a Lutheran school in Michigan. She claimed she had been fired in retaliation for threatening to file a lawsuit under the Americans With Disabilities Act. She disputed the school's treatment of her after she was diagnosed with narcolepsy, and the school said she was fired for insubordination and failure to follow internal dispute resolution procedures.

Ginsburg Opinion Rejects Due Process Inquiries on Eyewitness IDs; Sotomayor Dissents

By Debra Cassens Weiss, ABA Journal \

01-11-12 -- The U.S. Supreme Court has ruled there is no due-process requirement for judges to hold pretrial screenings to assess the reliability of eyewitness identifications in criminal cases. . . . Justice Ruth Bader Ginsburg wrote the majority opinion (PDF) rejecting a theft defendant’s claim that pretrial screening is needed because of the grave risk that mistaken identification will result in a miscarriage of justice. Justice Sonia Sotomayor was the only dissenter. . . . “When no improper law enforcement activity is involved,” Ginsburg wrote, “it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.”  ****** The case is Perry v. New Hampshire.


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Lawyer makes startling argument in Supreme Court hearing on FCC

A lawyer arguing that the FCC has gone overboard in its regulation of broadcast nudity and language directed the justices' attention to the bare buttocks of statues in the Supreme Court. The justices are considering whether FCC rules are inconsistent. 

By Warren Richey, Christian Science Monitor Staff writer

01-10-12 -- Not often can one watch a former solicitor general of the United States directing venerable Supreme Court justices to observe naked posteriors of the marble statues that stand sentinel at the highest court in the land. . . . “There’s a bare buttocks there,” Washington lawyer Seth Waxman advised the startled justices during his oral argument on Tuesday. . . . “And there’s a bare buttocks here,” he said, pivoting and pointing across the ornate courtroom. . . . The black-robed justices obliged the lawyer by following his extended finger to a sculptor’s rendition of gluteus maximus. . . . This was no voyeuristic dalliance. Mr. Waxman was hoping to convince the high court that the Federal Communications Commission had gone haywire in threatening to sanction broadcast television stations for the fleeting appearance of a naked body part or of a blurted expletive during prime-time television.

Supreme Court Bars Federal Suit Against Private Prison Employees

By Debra Cassens Weiss, ABA Journal

01-10-12 -- A prisoner in a federal facility operated by a private company cannot sue its employees for constitutional violations, the U.S. Supreme Court has ruled. . . . The inmate, Richard Lee Pollard, had claimed medical staffers and other employees of the Wackenhut Corrections Corp. had failed to deliver adequate medical care after he slipped on a cart left in a doorway. . . . The majority opinion (PDF) by Justice Stephen G. Breyer refused to authorize a so-called Bivens action because state tort law provides an alternative route to collect damages.

Supreme Court Upholds Arbitration Provision in Credit Card Contract

By Debra Cassens Weiss, ABA Journal

01-10-12 -- The U.S. Supreme Court has ruled that consumers who received the Aspire Visa credit card are bound by a mandatory arbitration provision in their applications. . . . Justice Antonin Scalia wrote the majority opinion (PDF) in the case, CompuCredit Corp. v. Greenwood. The decision overturns a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals. Justice Ruth Bader Ginsburg was the only dissenter. . . . The plaintiffs had claimed in a class action suit that they were promised $300 in available credit, but were charged $257 in fees. They maintained that the Credit Repair Organizations Act gave them a right to sue. They cited a provision in the CROA requiring credit repair organizations to tell consumers, “You have the right to sue a credit repair organization that violates the Credit Repair Organization Act.”

Justices appear to lean toward FCC in case over broadcast TV 'indecency'

By Bill Mears, CNN Supreme Court Producer 

01-10-12 -- The Supreme Court appeared ready to give government regulators the continuing authority to regulate profanity and sexual content on broadcast television after a lively hour of arguments Tuesday. . . . The justices and lawyers all stayed polite, not actually using any obscene words, preferring the legally acceptable "f-bomb" or "s-word" to describe the controversial content at issue in the high-stakes free speech dispute. . . . The court will decide whether the Federal Communications Commission may constitutionally enforce its policies on "fleeting expletives" and scenes of nudity on television programs, both live and scripted. The agency had imposed hefty fines on broadcasters.

Court Overturns New Orleans Murder Conviction

Associated Press | ABC News 

01-10-12 -- The Supreme Court has overturned a death row inmate's conviction of killing five people in the justices' latest look at the conduct of prosecutors in the New Orleans district attorney's office. . . . The high court voted 8-1 to order a new trial Tuesday for Juan Smith, who was convicted of five murders at a 1995 party. The only witness to identify Smith gave inconsistent statements about whether he could recognize or identify Smith as one of the killers.

High court upholds ruling overturning 'Skid Row Stabber' verdicts

The U.S. 9th Circuit Court of Appeals had set aside Bobby Joe Maxwell's 1984 murder convictions because a key witness for the prosecution, a notorious jailhouse informant named Sidney Storch, had been exposed as a 'habitual liar.'

By David Savage, Los Angeles Times  

01-10-12 -- The U.S. Supreme Court has let stand a ruling that overturned murder convictions in two slayings tied to the so-called "Skid Row Stabber," who was thought to be responsible for the killing of as many as 10 homeless men in downtown Los Angeles in the late 1970s. . . . After a lengthy trial in 1984, Bobby Joe Maxwell was convicted of two murders and sentenced to life in prison. . . . Last year, the U.S. 9th Circuit Court of Appeals set aside his convictions because a key witness for the prosecution, a jailhouse informant named Sidney Storch, had been exposed as a "habitual liar." Storch, now dead, was known to read newspaper stories in his cell and then offer testimony that would be useful to prosecutors in exchange for favors, Judge Richard Paez wrote.

High court backs foreign campaign contribution ban

Associated Press | Bloomberg BusinessWeek 

01-09-12 -- The Supreme Court has dismissed an appeal seeking to expand the ability of foreigners to contribute to American political campaigns. . . . The justices on Monday upheld a federal court ruling in favor of the ban on foreign contributions from all but immigrants who permanently live in the United States.

In Texas voting rights case, Court chooses a narrow path

Tony Mauro, The National Law Journal

01-09-12 -- What was billed as a possible Supreme Court showdown over the constitutionality of the Voting Rights Act on Monday turned instead into narrower debate over how the redistricting of Texas legislative districts should proceed. . . . The Court devoted an unusual 75 minutes of time to hastily scheduled arguments in Perry v. Perez, a tussle over the new districts drawn by the Texas legislature to reflect the latest decennial census. Because Texas is a state that must, under the Voting Rights Act, obtain federal preclearance before it changes any of its electoral processes, the case seemed like a new battlefront for states that chafe under the law. . . . But the justices seemed uninterested in the broader question of whether it is constitutional for Congress to force jurisdictions, mostly in the south, to get federal approval for its district maps. Only Justice Anthony Kennedy mused aloud at one point that the law puts Texas at a "tremendous disadvantage" in planning its elections, in contrast to the mainly northern states that are not covered by the preclearance requirement.

Supreme Court appears sympathetic to Idaho couple in 4-year battle with EPA

By Robert Barnes, Washington Post 

01-09-12 -- Conservative members of the Supreme Court seemed outraged Monday by the Environmental Protection Agency’s actions in a four-year battle with an Idaho couple who want to build a house on land the EPA says contains sensitive wetlands. . . . Justices across the ideological spectrum appeared troubled by the EPA’s position that Mike and Chantell Sackett do not have the right to go court to challenge the agency’s wetlands decision. . . . But some justices got more worked up about the case than others, and Justice Samuel A. Alito Jr. led the parade. . . . “If you related the facts of this case . . . to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Alito asked Deputy Solicitor General Malcolm L. Stewart, who was representing the EPA.

December 2011 

SCOTUS to Decide if Suit to Close Tribal Casino Can Proceed

By Mark Hansen, ABA Journal

12-13-11 -- The U.S. Supreme Court will decide whether a lawsuit to close a tribal casino in Michigan can move forward. . . . The court agreed Monday to hear arguments in two consolidated sovereign immunity cases over Indian trust lands: Match--E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak, multiple sources report. . . . The tribe, also known as the Gun Lake Band, opened a casino last year on a rural 147-acre tract in Wayland Township, 20 miles south of Grand Rapids. But casino opponent David Patchak sued to shut it down by challenging the way the federal government had placed the land in trust for the tribe.

November 2011 

In privacy case, justices home in on the meaning of 'actual damages'

Marcia Coyle, The National Law Journal  

11-30-11 -- In a case watched closely by privacy and whistleblower advocates, lawyers for an HIV-positive pilot and the federal government clashed in the U.S. Supreme Court on Wednesday over whether damages for mental and emotional distress can be recovered for violations of the Privacy Act. . . . The justices gave little hint of how they would rule in a classic statutory interpretation argument over the meaning of the words "actual damages" in the 1974 law. . . . Enacted in the wake of the Watergate scandal and amid growing concerns about government use of computerized databases, the law prohibits federal agencies from disclosing "any record which is contained in a system of records" to any person or to another agency without the consent of the individual to whom the record pertains. It creates a private cause of action against an agency for willful and intentional violations and authorizes actual damages of no less than $1,000.

US top court agrees to hear Obama healthcare law

* Healthcare likely to be major issue in 2012 election

* Legal, policy analysts expect close Supreme Court vote

* Obama administration, 26 states appealed to high court

By James Vicini, Reuters

11-14-11 -- The Supreme Court agreed on Monday to decide the fate of President Barack Obama's healthcare law, with an election-year ruling due by July on the U.S. healthcare system's biggest overhaul in nearly 50 years. . . . The decision had been widely expected since late September, when the Obama administration asked the nation's highest court to uphold the centerpiece insurance provision and 26 states separately asked that the entire law be struck down. . . . The justices in a brief order agreed to hear the appeals. At the heart of the legal battle is whether the U.S. Congress overstepped its powers by requiring that all Americans buy health insurance by 2014 or pay a penalty, a provision known as the individual mandate.

Social Security Takes IVF Dispute to Washington

By Barbara Leonard, Courthouse News Service 

11-14-11 -- The Supreme Court on Monday took up a Social Security case involving a widow who used her late husband's frozen sperm to conceive twins, born 18 months after their father's death. . . . The 3rd Circuit ruled last year that the twins, B.N.C. and K.N.C., must be considered children under the Social Security Act as the "undisputed biological" offspring of a deceased wage earner, Robert Capato, and his widow, Karen. . . . On remand, a New Jersey federal judge would have to determine whether, "as of the date of Mr. Capato's death, his children were dependent or deemed dependent on him, the final requisite of the act remaining to be satisfied." . . . Social Security Commissioner Michael Astrue petitioned the Supreme Court to review. . . . The Philadelphia-based federal appeals court had nevertheless declined to find an equal protection issue in the case.

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Citing Orwell, justices appear wary of GPS surveillance by police

Marcia Coyle, The National Law Journal  

11-08-11 -- Police use of GPS surveillance and society's expectations of privacy clashed in the U.S. Supreme Court on Tuesday as justices weighed new technology and its impact on Fourth Amendment rights. . . . With multiple references to the novel 1984, a majority of the justices seemed uncomfortable with the federal government's defense of law enforcement's warrantless use of a GPS tracking device on a suspected drug dealer's car over a four-week period. But the justices also struggled to find a legal way to regulate that type of surveillance. . . . "If you win, there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States," suggested Justice Stephen Breyer to Deputy Solicitor General Michael Dreeben. "You suddenly produce what sounds like 1984. What protection is there once we accept your view?"

An angry Court gives New Orleans prosecutors a scolding

Tony Mauro, The National Law Journal  

11-08-11 -- The Supreme Court took the New Orleans prosecutor's office to the woodshed on Tuesday, scolding its lawyer for what one justice said was a long history of accusations that the office has ignored the right of defendants to receive exculpatory evidence before trial. . . . Justice after justice, including conservative Antonin Scalia, admonished Assistant District Attorney Donna Andrieu for her office's failure, in the case before the Court, to turn over what they viewed as evidence that could have changed the course of the trial. "Surely it should have been turned over," Scalia said at one point. "Why don't you give that up?" . . . The setting for the Court's unusual display of anger was the oral argument in Smith v. Cain, a challenge to prosecutorial misconduct in the case of Juan Smith, convicted of murder in a 1995 rampage that left five people dead. Lawyers for Smith are asking for a new trial, citing statements that were withheld from defense lawyers impeaching the credibility of the only eyewitness to the crime.

In passport clash, a question of the president's powers

Tony Mauro, The National Law Journal 

11-07-11 -- A seemingly narrow-gauge dispute over the wording used on certain U.S. passports triggered a broad-ranging discussion at the Supreme Court on Monday about the separation of powers in matters of foreign policy. . . . The case before the Court is Zivotofsky v. Hillary Clinton, Secretary of State. It is a dispute over a 2002 federal law that directs the State Department, on request, to list Israel as the country of birth on passports for U.S. citizens who were born in Jerusalem. Jerusalem's status as a capital or even as part of Israel has been a touchy point for decades worth of presidents, fearful of spoiling the peace process between Israel and the Palestinians, who lay claim to at least part of the city.

U.S. Supreme Court rejects killer's appeal

By Allan Turner, Houston Chronicle

11-07-11 -- The U.S. Supreme Court today rejected Houston killer Duane Buck's request that it review his death sentence - a punishment handed down despite former Texas Attorney John Cornyn's assessment that it might have been tainted by racial considerations. . . . The high court stopped Buck's Sept. 15 execution in order to decide whether to take up the case. Buck, 48, was sentenced to die for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but she survived and later argued that the killer should be spared.

Race Factor Merits Look at Texas Death Row Case

By Barbara Leonard, Courthouse News Service 

11-07-11 -- Justices Sonia Sotomayor and Elena Kagan said Monday they would have wanted the Supreme Court to review a Texas death sentence case "marred by racial overtones" and potential misconduct by state prosecutors. . . . After Duane E. Buck was convicted of capital murder in Texas, the prosecutor emphasized that black men like Buck are statistically more likely to commit violent crimes. A jury sentenced Buck to death. . . . Buck has failed to convince state and federal courts to review his case, with the most recent refusal coming from the Supreme Court on Monday. . . . A seven-page dissent authored by Sotomayor notes, however, that the psychologist who testified at Buck's sentencing hearing, Walter Quijano, has an unsettling record. In six capital cases to which Quijano was called as a witness, as with the Buck trial, "the salient fact was that the prosecution invited the jury to consider race as a factor in sentencing. And in each case, the defendant was sentenced to death."

Supreme Court Reinstates Death Sentence in Summary Reversal of 6th Circuit

By Debra Cassens Weiss, ABA Journal

11-07-11 -- The U.S. Supreme Court has reinstated the death sentence of an Ohio inmate in a summary reversal of the Cincinnati-based 6th U.S. Circuit Court of Appeals. . . . The defendant, Archie Dixon, was convicted of murdering a man to steal his car. According to the Supreme Court’s per curiam opinion (PDF), the 6th Circuit “purported to identify three … grievous errors” by the Ohio Supreme Court when the state court affirmed Dixon’s conviction and found no Miranda violation.

Supreme Court vs. 9th Circuit: Roberts Defends Scalia's Honor As Justices Ready To Reverse Case

Mike Sacks, The Huffington Post

11-01-11 -- It's 9th Circuit smackdown season at the Supreme Court and, judging from Tuesday morning's oral arguments, Richard Lee Pollard could be the latest defendant caught in the middle. . . . Pollard was a federal prisoner on kitchen duty when he slipped, fell and broke both his elbows. He claims that the way prison employees treated him for the next several months caused him so much additional pain and suffering that they violated the Eighth Amendment's ban on cruel and unusual punishment. He sued the offending staff members under a 40-year-old Supreme Court case, Bivens v. Six Unknown Federal Narcotics Officers, that allows individuals to win money damages when federal officials violate their constitutional rights. The last time the Supreme Court actually allowed such a case to go forward was in 1980.

October 2011

Justices restore grandmother's conviction in shaken baby death

By Bill Mears, CNN  

10-31-11 -- The Supreme Court issued a final, stinging rebuke of a lower court's decision on three separate occasions to dismiss the assault conviction of a grandmother in the shaking death of her 7-week-old grandson. . . . The justices in an unsigned opinion Monday said the 9th Circuit U.S. Court of Appeals "plainly erred in concluding the jury's verdict was irrational." The high court for the last time reinstated the conviction of Shirley Ree Smith, ending a 15-year legal fight. . . . Prosecutors alleged Smith lost her temper and violently shook Etzel Dean Glass III when he woke up crying and in need of a diaper change in Van Nuys, California, in 1996. The boy's mother had put him to sleep on a sofa, and the grandmother was sleeping on the floor next to Etzel. . . . An initial diagnosis of sudden infant death syndrome (SIDS) was changed to shaken baby syndrome (SBS) after an autopsy. That conclusion formed the basis of the government's case, but was strongly challenged by the defense. A jury convicted her, and Smith, then 37, was sentenced to 15 years to life.

Justices avoid highway cross dispute

by Joan Biskupic, under USA Today News / Tucson Citizen 

10-31-11 -- The Supreme Court on Monday declined to return to the divisive question of when religious symbols are allowed on government property, rejecting a dispute over the placement of large white crosses on Utah roads to commemorate fallen troopers. . . . Over the lone dissent of Justice Clarence Thomas, the court left in place a lower court decision that said the Utah crosses violated the separation of church and state. . . . “Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles,” Thomas wrote, referring to the constitutional prohibition against government enacting laws that establish, or endorse, religion.

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Lies About Military Medals to Get U.S. Supreme Court Review in Speech Case

By Greg Stohr - Bloomberg News

10-17-11 -- The U.S. Supreme Court agreed to decide whether the Constitution’s free speech clause protects people who falsely claim to have been awarded military medals. . . . The justices today said they will hear arguments on the 2005 Stolen Valor Act, which punishes people with as much as a year in prison for lying about receiving a medal. A federal appeals court declared the law unconstitutional, and President Barack Obama’s administration is appealing. . . . The law “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system,” U.S. Solicitor General Donald Verrilli argued in the administration’s bid for high court review. ******** The case, which the court will consider and decide in the first half of next year, is United States v. Alvarez, 11-210.

Unreliable eyewitnesses put defendants on death row

By Michael Kirkland, UPI

10-16-11 -- Does the routine use of eyewitnesses in American criminal cases contribute to trials that put innocent people behind bars -- even on death row? Evidence suggests it does. . . . The U.S. Supreme Court is getting ready to hear a case out of New Hampshire that deals with a subtle but important point in the witness process. . . . Lawyers for a hapless burglar say the case asks whether the due process -- or fair trial and procedure -- guarantee in the 14th Amendment bans the use of all "unreliable eyewitness identification" arising from "impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of 'improper state action?'" -- meaning police manipulation.

The Supreme Court: When Double Jeopardy Isn't Double Jeopardy

By Michael A. Lindenberger, TIME   

10-14-11 -- The Supreme Court has decided to hear a case out of Arkansas that will test just how big the exceptions to the double-jeopardy protection are. . . . Even Americans who know very little about the U.S. Constitution know this much: once a jury decides you are innocent of a crime, the government can't keep hauling you back into court to try your case over again. It's called the prohibition on double jeopardy, and it's in the Bill of Rights because the Founding Fathers thought it was an essential bulwark against tyranny. But like most truisms in American law — that the police have to read you your rights before they question you, that it takes a unanimous verdict to be convicted, or that the police need a warrant to search your house — there are exceptions large enough to drive a prison bus through. . . . The Supreme Court this week decided to hear a case out of Arkansas that will test just how big the exceptions to the double-jeopardy protection contained in the Fifth Amendment are, and experts say the decision could resolve long-standing differences between the states about when it's O.K. for the government to retry defendants when it can't get a conviction the first time. Because of the nature in which the decisions were made in Arkansas, the U.S. Supreme Court could use the case to decide what constitutes an official verdict. (Read about your Bill of Rights and pleading the Fifth Amendment.)



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Supreme Court refuses to reinstate Abu-Jamal death sentence

By Joseph A. Slobodzian, The Philadelphia Inquirer Staff Writer

10-12-11 -- The U.S. Supreme Court on Tuesday refused to hear a petition by the Philadelphia District Attorney's Office seeking to reinstate the death penalty against Mumia Abu-Jamal. . . . The ruling in the case of Abu-Jamal - convicted of murder in the 1981 shooting of Philadelphia Police Officer Daniel Faulkner - was one of more than 250 appeals summarily rejected by the high court without comment. It means that, unless the District Attorney's Office decides to conduct a new sentencing hearing, Abu-Jamal, 57, will continue serving a life sentence with no chance of parole.

High court wrestles with extent of ministerial exception to employment bias suits

Marcia Coyle, The National Law Journal 

10-05-11 -- The Supreme Court on Wednesday plunged into a thorny thicket surrounding government enforcement of job bias laws and religious employers, and emerged apparently divided over how to protect the interests of both. . . . The justices heard arguments on whether the Equal Employment Opportunity Commission could sue a Lutheran Church school under the Americans with Disabilities Act because the school fired the teacher after she threatened to file a disability discrimination charge. . . . The U.S. Court of Appeals for the 6th Circuit held that the so-called ministerial exception, which usually bars job bias suits involving ministers and priests, did not apply because the teacher, Cheryl Perich, performed primarily secular duties at the school. . . . In Wednesday's arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the justices wrestled with the definition of "minister" and how much courts would have to interfere in religious organizations' activities and doctrines in order to determine who is or is not a "minister." The ministerial exception is decades old and is rooted in the First Amendment's religion clauses.

Justices hear religious workplace dispute

By Joan Biskupic, USA TODAY 

10-05-11 -- The Supreme Court struggled Wednesday with a case fundamental to the separation of church and state, testing when people who work for religious organizations can sue for job discrimination. . . . A Michigan teacher diagnosed with narcolepsy but eventually cleared to work sued under the Americans with Disabilities Act when a Lutheran school fired her. . . . The Hosanna-Tabor Evangelical Lutheran Church said Cheryl Perich violated a core church principle by bringing her grievance to the U.S. Equal Employment Opportunity Commission (EEOC) rather than using church processes to try to win her job back. Hosanna-Tabor is asking the justices to throw out the case, based on a so-called "ministerial exception," which bars some job-related lawsuits against religious organizations and is intended to protect churches from government interference. A lower U.S. appeals court had ruled for Perich. . . . The appeals court rejected Hosanna-Tabor's "ministerial exception" defense, noting that Perich's job as a fourth-grade teacher was mostly secular. She taught math, social studies, music and other subjects, along with religion. . . . In his appeal on behalf of Hosanna-Tabor, University of Virginia law professor Douglas Laycock told the justices, "Churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

By the numbers: Gearing up for OT2011

Kedar Bhatia Statistics      SCOTUSblog    

10-04-11 -- This is the first post in a series analyzing statistical trends at the Supreme Court. For a more complete look at the statistics we collect on the Court, you can find all of our up-to-date charts and graphs here. . . . The Supreme Court has now granted just over half the cases that it is likely to hear during October Term 2011, so it seems like as good a time as any to begin breaking down the cases that have been accepted for review. The Court has granted 49 total petitions, but one was dismissed under Rule 46 soon after it was granted, so we will use 48 as the total. . . . The Court’s workload: With 48 cases on the docket for OT2011, the Court is in good shape moving into the fall. During the Roberts Court, the Court has typically had between 45-55 cases on the docket following the Long Conference, and the current pace should allow it to grant cases at its own pace through January to fill the Term. The Court remains on pace after granting only seven cases at the Long Conference because it granted an unusually high number of cases at the final June conference – 13.

Death row inmate harmed by law firm error may get second chance from high court

Marcia Coyle, The National Law Journal

10-04-11 -- Alabama death row inmate Cory Maples, who lost his chance to bring a critical appeal because of a mailroom snafu in a New York law firm, may be getting a second chance from the U.S. Supreme Court. . . . In fast-paced arguments on Tuesday that delved into the obligations of lawyers representing criminal defendants, all of the justices, with the exceptions of Justice Antonin Scalia and a silent Justice Clarence Thomas, appeared concerned about the predicament in which Maples finds himself and skeptical of the state's arguments that they should do nothing about it. . . . Maples, sentenced to death for the 1995 murders of two men, was represented pro bono in his state post-conviction appeal by two associates at New York's Sullivan & Cromwell. As required by Alabama rules at the time, the two lawyers associated themselves with a local attorney, John Butler, in order to be admitted to practice in the state. Although the rules required Butler to be jointly and severally responsible for the case, he claimed his only role was to secure the New York attorneys' admission.

Supremes keep record of rejecting eligibility cases perfect

Justices have refused to hear every challenge so far, but more still to come

By Bob Unruh, © 2011 WND   

10-03-11 -- It's the unloved relative who just won't go away, the chronic pain that annoys all the time or the gray that no amount of washing will take out of hair, only in the U.S. Supreme Court, it's the Barack Obama eligibility issue. . . . The justices, meeting in conference last week, refused yet again even to hear arguments in a case involving the constitutional dispute, as they have for every other eligibility dispute that they've been presented with since before Obama's election. . . . The most recent decision, announced today, involved the Keyes vs. Bowen case out of California. The court simply posted an online note that the petition for the justices to hear evidence on the arguments and clear up the cloud of uncertainly on the issue was denied. . . . The case had been brought by Gary Kreep of the United States Justice Foundation, who told WND he was disappointed. . . . "We were very hopeful that the Supreme Court would take the case to finally resolve the issue," he said. But, "given the comments made by Justice Thomas and then others not on the Supreme Court we're not terribly surprised." . . . He said, however, that there are more cases making their way to the U.S. Supreme Court, including another case in which he is involved, the Drake v. Bowen case that now is pending at the 9th U.S. Circuit Court of Appeals. . . . When the decision is reached at that level, he said, it appears likely that once more the Supreme Court justices will be confronted with what many involved in the cases have described as a constitutional crisis in which a sitting president's eligibility to be president remains in doubt.

First Monday in October marks start of new Supreme Court term; justices hear to Medicaid case

By Associated Press, Washington Post 

10-03-11 -- The Supreme Court is beginning a term expected to be dominated by health care with arguments Monday in a closely watched case involving the Medicaid program for poor Americans. . . . The first order of business is disposing of appeals in more than a thousand cases that piled up over the summer.

Supreme Court set to open crucial term

The justices could make decisions on President Obama's healthcare law, enforcement of immigration laws and affirmative action in higher education.

By David G. Savage, Washington Bureau Los Angeles Times  

10-02-11 -- The Supreme Court on Monday opens one of its most anticipated terms, in which the justices could strike down President Obama's healthcare law, empower local police to arrest illegal immigrants, and declare an end to affirmative action in colleges and universities. . . . The cases coming before the court "address some of the central issues facing the country," said former Solicitor General Walter Dellinger. The clashes over healthcare and immigration "are not mere lawyers' issues, but fundamental questions about how the country is governed." . . . "By June of 2012, this may prove to be among the most momentous terms in recent decades," said Elizabeth Wydra, chief counsel for the Constitutional Accountability Center in Washington. . . . The justices will decide over the next few months whether to hear the cases. If they do, rulings will be handed down by late June, just as the presidential campaign moves into high gear.

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 "[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their, own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."

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