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Argument analysis: Justices doubt FTC’s authority to compel monetary relief

If you’re arguing on behalf of a federal regulatory agency’s authority to protect consumers from businesses and Justice Stephen Breyer sets his face against you, then chances are your day is not going well. But that is what happened Wednesday morning when Joel Marcus appeared on behalf of the FTC in AMG Capital Management v. Federal Trade Commission. Joel Marcus argues for the FTC (Art Lien) The case involves Section 13 of the Federal Trade Commission Act, which allows the FTC to seek an “in...
Tags: Featured, Supreme Court, Law, Congress, White House, Justice Department, Executive Branch, Federal Trade Commission, Ftc, Marcus, Amg, Alito, Fitzgerald, Stephen Breyer, Breyer, Elena Kagan


Blockbuster Watch

John Elwood reviews Monday’s relists How does the Supreme Court possibly top the excitement of last Friday’s fourteen new grants — including grants in a few important First Amendment cases? With 10 new relists, including some cases that could be blockbusters if the court decides to take them. Perhaps the most blockbustery of them all is Dobbs v. Jackson Women’s Health Organization, 19-1392, a case that was originally on track for the court’s Sept. 29 conference, but which has been repeatedly del...
Tags: Health, Texas, Featured, Mississippi, Maryland, Supreme Court, Law, Obama, Congress, California, Barack Obama, Pennsylvania, United States, Boston Marathon, Catholic, Johnson


Argument analysis: Justices weigh mootness after change in government policy in cases seeking nominal damages

The Supreme Court heard oral argument on Tuesday in the case of a Georgia student who was stopped from handing out religious literature and speaking about his faith on the campus of his public college. The student, Chike Uzuegbunam, argued that the college’s policies violated the First Amendment, but shortly after the lawsuit was filed the college changed its policies to allow students to generally speak anywhere on campus without a permit. The question before the court on Tuesday in Uzuegbunam ...
Tags: New York, Featured, Taylor Swift, Supreme Court, Law, Congress, New York City, Atlanta, Georgia, Bradford, Swift, Thomas, Sonia Sotomayor, John Roberts, Roberts, Howe


Opinion analysis: Court sides with New Mexico over Texas in interstate water dispute

The Supreme Court decided Texas v. New Mexico on Monday, ruling in New Mexico’s favor in an interstate water dispute over the Pecos River. Texas filed the case directly in the Supreme Court, invoking the court’s original jurisdiction in cases where one state sues another … just as it did on Dec. 8 when it sued four “swing” states over how they conducted the presidential election. Although both cases ended badly for Texas within days of each other, the Supreme Court – which has decided many inter...
Tags: Texas, Featured, Supreme Court, Law, Court, New Mexico, Alito, Samuel Alito, Kavanaugh, Pecos, New Mexico Texas, Whoville, U S Bureau of Reclamation, Brantley, Pecos Texas, Merits Cases


Argument analysis: Justices ponder narrow question in second look at arbitration dispute

Tuesday’s argument in Henry Schein Inc. v. Archer and White Sales Inc. was the second time the Supreme Court has considered this particular dispute about “gateway” arbitrability clauses: those that delegate to an arbitrator the authority to determine whether any particular dispute is subject to arbitration. The arbitration clause here – in a contract between two dental-equipment companies, Henry Schein Inc. and Archer and White Sales Inc. – excluded claims seeking equitable relief. When the part...
Tags: Featured, Supreme Court, Law, Archer, AAA, White, Henry Schein, Sonia Sotomayor, John Roberts, Roberts, U S Court of Appeals, Sotomayor, Elena Kagan, Kagan, Henry Schein Inc, Samuel Alito


Argument analysis: In Holocaust survivors’ lawsuit, justices probe history and limits of comity abstention

The first of two cases argued Monday, Republic of Hungary v. Simon, explored how courts should evaluate foreign-policy concerns in deciding whether to exercise jurisdiction over disputes involving foreign countries — and how much to defer to congressional choices in those decisions. Meanwhile, the potential ripple effects of the subsequently argued companion case, Federal Republic of Germany v. Philipp, loomed. Greg Silbert, for Hungary, and Sarah Harrington, for plaintiffs (Art Lien) Hung...
Tags: Featured, Law, Congress, Washington, Germany, Austria, Budapest, Hungary, United States, State Department, Jewish, Botswana, Simon, Sonia Sotomayor, John Roberts, Snyder


Ramos, Tasmanian tigers and Teague, oh my: SCOTUS debates retroactivity of jury unanimity rule in Edwards oral argument

The Supreme Court often seems to have a Wizard-of-Oz like quality, especially now that we are all behind a COVID curtain, and so I could not resist an Ozian title for this post noting today's interesting oral argument in Edwards v. Vannoy.   At issue in Edwards is whether the Court’s decision last Term in Ramos v. Louisiana, holding that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, applies retroactively to cases that have already bec...
Tags: Supreme Court, Law, Oregon, Court, Tasmania, Louisiana, Ruth Bader Ginsburg, Justice Department, Puerto Rico, John Roberts, Edwards, Lane, Alito, Barrett, Stephen Breyer, Breyer


Argument analysis: Justices struggle to define boundaries of Anti-Injunction Act

Cameron T. Norris, counsel for CIC Services (Art Lien) The Supreme Court in Tuesday’s argument in CIC Services v. Internal Revenue Service tried to clarify the scope of the Anti-Injunction Act, which generally prohibits lawsuits seeking to block the assessment or collection of a tax. The case specifically asks whether a company can sue to block the enforcement of an IRS notice that imposes certain reporting requirements, or whether the company must wait and sue only after the IRS assesses tax ...
Tags: Featured, Law, Congress, Bond, AIA, South Carolina, Irs, Cic, Simon, Alexander, Sonia Sotomayor, APA, John Roberts, Internal Revenue Service, Alito, Barrett


Argument analysis: Complex retroactivity issues divide justices in jury-unanimity case

The Supreme Court heard oral argument on Wednesday in the case of Thedrick Edwards, a Louisiana man serving a life sentence for his role in a series of crimes in 2006. The jury that convicted Edwards, who is Black, was not unanimous; the lone Black juror voted to acquit him. In April 2020, the Supreme Court ruled in Ramos v. Louisiana that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. The court in Ramos was divided on both the result a...
Tags: Featured, Supreme Court, Law, Oregon, Louisiana, Woods, Puerto Rico, Sonia Sotomayor, John Roberts, Edwards, Howe, Lane, Alito, Sotomayor, Elena Kagan, Kagan


Argument analysis: Justices send mixed messages on corporate liability for allegedly aiding child slavery abroad

The Supreme Court heard oral argument on Tuesday in a pair of cases, Nestlé USA v. Doe I and Cargill, Inc. v. Doe I, that ask whether a lawsuit against American corporations under the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, can continue. The plaintiffs in the case are six former child slaves in Ivory Coast, who contend that the defendants, both U.S. food giants, facilitated human-rights abuses on the cocoa plantati...
Tags: Featured, Supreme Court, Law, Congress, United States, Mali, Ivory Coast, Cargill, Lithuania, DOE, Sonia Sotomayor, John Roberts, The Supreme Court, Roberts, Neal Katyal, Howe


Argument analysis: Justices seem wary of breadth of federal computer fraud statute

Monday’s argument in Van Buren v. United States was the first sustained attention the Supreme Court has offered to the Computer Fraud and Abuse Act, a federal statute that imposes civil and criminal liability for unauthorized access of computers. The government in recent years has applied the statute ever more broadly, finally producing a confrontation in which the Supreme Court has an opportunity to address it. The CFAA is vague in important ways, but it generally criminalizes obtaining access ...
Tags: Featured, Supreme Court, Law, Fbi, United States, Sonia Sotomayor, Fisher, Van Buren, Alito, Sotomayor, Elena Kagan, Clarence Thomas, Samuel Alito, Kavanaugh, CFAA, Feigin


Christian school in Kentucky asks justices to intervene in dispute over in-person classes at religious schools (updated)

Less than a week after the Supreme Court lifted New York’s COVID-related limits on attendance at worship services, a Christian school in Kentucky and the state’s attorney general asked the Supreme Court on Monday to allow in-person classes at faith-based schools. Danville Christian Academy and Kentucky Attorney General Daniel Cameron, a Republican, argued that the state’s Democratic governor, Andy Beshear, has treated religious schools less favorably than “a wide assortment of secular gatherings...
Tags: New York, Featured, Supreme Court, Law, Kentucky, Cameron, Ncaa, Cuomo, The Supreme Court, Howe, Lexington, Kavanaugh, Beshear, 6th Circuit, Andy Beshear, Brett Kavanaugh


Christian school in Kentucky asks justices to intervene in dispute over in-person classes at religious schools

Less than a week after the Supreme Court lifted New York’s COVID-related limits on attendance at worship services, a Christian school in Kentucky and the state’s attorney general asked the Supreme Court on Monday to allow in-person classes at faith-based schools. Danville Christian Academy and Kentucky Attorney General Daniel Cameron, a Republican, argued that the state’s Democratic governor, Andy Beshear, has treated religious schools less favorably than “a wide assortment of secular gatherings...
Tags: New York, Featured, Supreme Court, Law, Kentucky, Cameron, Ncaa, Cuomo, The Supreme Court, Howe, Lexington, Kavanaugh, Beshear, 6th Circuit, Andy Beshear, Brett Kavanaugh


Argument analysis: Justices seem inclined to put off ruling on merits of Trump’s plan for census data

The Supreme Court heard oral argument on Monday in Trump v. New York, the challenge to the Trump administration’s plan to exclude people who are in the United States illegally from the state-by-state breakdown used to allocate seats in the House of Representatives. The stakes are high in the case: If the justices allow the administration to implement the plan before it leaves office in January, states with large immigrant populations could lose political power, while states with fewer immigrants...
Tags: New York, Featured, Supreme Court, Law, Congress, United States, Commerce, House, House Of Representatives, Donald Trump, Wall, Ross, Trump, Ho, State, Sonia Sotomayor


Justices lift New York’s COVID-related attendance limits on worship services

The Supreme Court late Wednesday night granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at houses of worship. Both the diocese and the synagogues claimed that the executive order violated the right to the free exercise of religion guaranteed by the First Amendment, particularly when secular businesses in the area are allowed to remain open. Wednesday’s orders by a closely divi...
Tags: New York, Featured, Supreme Court, Law, California, Brooklyn, Nevada, Andrew Cuomo, Ruth Bader Ginsburg, Cuomo, State, John Roberts, Roberts, Howe, Barrett, U S Court of Appeals


Brooklyn Catholic diocese asks justices to block limits on attendance at church services

The Roman Catholic Diocese of Brooklyn asked the Supreme Court on Thursday to block limits imposed on in-person church attendance because of the coronavirus pandemic. The plea renews a dispute over restrictions on worship services while some secular businesses remain open. The Supreme Court rebuffed similar challenges over the summer, but this is the first one to come to the justices since Justice Amy Coney Barrett’s confirmation last month, and the diocese could find more success before the now...
Tags: New York, Featured, Supreme Court, Law, California, San Diego, Nevada, Andrew Cuomo, San Diego County, Ruth Bader Ginsburg, Gavin Newsom, Cuomo, Thomas, John Roberts, Roberts, Howe


Argument analysis: ACA seems likely to survive, but on what ground?

After roughly two hours of oral argument in the Supreme Court on Tuesday, it appeared likely that the Affordable Care Act will survive yet another effort in the courts to dismantle it. Although there may be five votes to strike down the ACA’s individual mandate – the provision in the law that directs virtually all Americans to buy health insurance – a majority of the court in California v. Texas seemed to agree with the ACA’s defenders that even if the mandate is unconstitutional, the rest of th...
Tags: Texas, Featured, Supreme Court, Law, Congress, California, House, House Of Representatives, ACA, Medicaid, Wall, Irs, Trump, Thomas, Hurley, Sonia Sotomayor


Argument analysis: Two paths forward in lawsuit alleging unconstitutional police violence

Patrick Jaicomo of the Institute for Justice argues by phone for James King (Art Lien) While assigned to an FBI task force, Officers Douglas Brownback and Todd Allen mistakenly assumed James King might be a home invasion suspect. They stopped King, and when King put up a struggle, the officers pummeled him. King filed suit alleging claims against the officers under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics­ — which allows individuals to sue federal officials for violati...
Tags: Featured, Supreme Court, Law, Congress, Fbi, United States, King, Thomas, James King, Sonia Sotomayor, John Roberts, Institute for Justice, Brownback, U S Court of Appeals, Sotomayor, Stephen Breyer


Symposium: The court should not “sever” where the president cannot

This article the final entry in a symposium previewing California v. Texas. Andy Schlafly is general counsel of the Association of American Physicians & Surgeons. He filed an amicus brief on behalf of AAPS in support of Texas. “To sever or not to sever” is not as profound a question as the immortal one asked by Hamlet, but it may decide the fate of the Affordable Care Act. Congress did not include a severability clause in the ACA, and if the individual mandate is unconstitutional, then the law c...
Tags: Texas, Featured, Supreme Court, Law, Congress, California, Senate, House, Bill Clinton, Nancy Pelosi, Hamlet, ACA, Madison, Kamala Harris, Hamilton, Clinton


Symposium: “Schrödinger’s tax” is dead – and the command to buy health insurance is unconstitutional

This article is part of a symposium previewing California v. Texas. Matthew Forys is the associate general counsel and chief of staff at the Landmark Legal Foundation. He filed an amicus brief on Landmark’s behalf in support of Texas. Congress amended the Affordable Care Act’s shared responsibility payment to $0 in 2017, calling into question whether Section 5000A can still be interpreted as a proper exercise of Congress’ taxing power, as held by the Supreme Court in National Federation of Indep...
Tags: Texas, Featured, Supreme Court, Law, Obama, Congress, California, Ruth Bader Ginsburg, ACA, Irs, John Roberts, Roberts, Ginsburg, NFIB, Barrett, U S Court of Appeals


Argument analysis: Justices consider whether crimes of recklessness require longer sentences under Armed Career Criminal Act

In Tuesday’s oral argument in Borden v. United States, the justices proposed hypothetical conduct to ascertain whether a crime of recklessness qualifies as a violent felony under the Armed Career Criminal Act’s “elements clause” or “force clause.” The scenarios included: Waving one’s arms; Swinging a bat; Shooting a hat off a person’s head; Attempting to escape with a car after a bank robbery; Texting while driving; and Drunk driving. Kannon Shanmugam argues via phone for Charles Borden (Art ...
Tags: Featured, Supreme Court, Law, Congress, United States, Johnson, Thomas, Sonia Sotomayor, John Roberts, Barrett, Borden, Sotomayor, Stephen Breyer, Breyer, Elena Kagan, Kagan


Argument analysis: Justices sympathetic to faith-based foster-care agency in anti-discrimination dispute

If the justices – like many of us – were up late on Tuesday night watching election returns, it was hard to tell when they took the virtual bench on Wednesday morning to hear oral argument in an important case involving a clash between religious freedom and laws and policies that protect LGBTQ rights. When the justices considered a similar dispute two years ago, in the case of a Colorado baker who refused to make a custom cake to celebrate a same-sex wedding because he believed that doing so wou...
Tags: Featured, Supreme Court, Law, Colorado, Stanford, Css, Philadelphia, Catholic, Smith, John Roberts, Fulton, Fisher, Roberts, Neal Katyal, Howe, Alito


Case preview: Justices will consider constitutionality of ACA’s individual mandate again

This article is the first entry in a symposium previewing California v. Texas. Since Congress passed the Affordable Care Act in 2010, the Supreme Court has reviewed six cases testing various parts of the law or the regulations that flow from it. One week after Election Day, the court will hear oral argument in a seventh. The newest challenge, California v. Texas, will be the second time the justices review the constitutionality of the ACA’s individual mandate – the requirement that virtually all...
Tags: Texas, Featured, Supreme Court, Law, Congress, California, Court, House, House Of Representatives, Donald Trump, Ruth Bader Ginsburg, ACA, Medicaid, Irs, Kennedy, Paul Clement


Argument analysis: Court considers bright-line and case-specific standards for the Freedom of Information Act’s “deliberative process” privilege

The Supreme Court heard oral argument on Monday morning in a case that will determine the scope of transparency under the Freedom of Information Act’s key “deliberative process” privilege. U.S. Fish and Wildlife Service v. Sierra Club presents the question of whether the privilege allows the government to withhold documents prepared as part of a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “t...
Tags: Featured, Supreme Court, Law, Esa, Foia, Epa, Environmental Protection Agency, Sierra Club, Thomas, Sonia Sotomayor, John Roberts, 9th Circuit, Wildlife Service, Roberts, Alito, Barrett


Argument analysis: Justices debate requirements for life sentences for juveniles

The Supreme Court heard oral argument on Tuesday on what states must do before imposing a sentence of life without the possibility of parole for defendants who were under the age of 18 when they committed their crimes. After nearly an hour and half of oral argument by telephone, it was not clear how the justices would resolve the case. Several justices seemed to believe that what a Mississippi judge had done in the case of Brett Jones, who was convicted of the 2004 stabbing death of his grandfat...
Tags: Featured, Mississippi, Supreme Court, Law, Alabama, United States, Louisiana, Jones, Montgomery, Miller, Sonia Sotomayor, John Roberts, Roberts, Howe, Alito, Mississippi Supreme Court


Argument analysis: Justices debate power of courts to review requests to reopen railroad benefits decisions

The Supreme Court heard telephonic argument on Monday in Salinas v. U.S. Railroad Retirement Board. The case presents a narrow question about the Railroad Retirement Act and the Railroad Unemployment Insurance Act, two federal statutes that govern pensions, unemployment benefits and sickness benefits for the nation’s railworkers. The question is: When the agency responsible for administering those statutes denies benefits to a claimant, and then later refuses to reopen its denial, is that refusa...
Tags: Featured, Supreme Court, Law, Congress, United States, Salinas, Board, Thomas, Sonia Sotomayor, John Roberts, HARRIS, Alito, Barrett, Stephen Breyer, Breyer, Elena Kagan


Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010).  Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. ...
Tags: Florida, Texas, Mississippi, Supreme Court, Law, Court, US, Alabama, United States, Graham, Louisiana, Jones, Montgomery, US supreme court, Miller, Barrett


Justices issue orders from Oct. 30 conference

The Supreme Court issued orders on Monday from the justices’ private conference last week. Although Justice Amy Coney Barrett joined the court last week, she did not participate in the conference; a statement from a Supreme Court spokeswoman indicated that Barrett sat out the conference to give her more time to prepare for oral arguments. The justices vacated two rulings by the U.S. Court of Appeals for the 5th Circuit, one involving qualified immunity for prison officials who held an inmate nak...
Tags: Featured, Mississippi, Supreme Court, Law, Court, NFL, United States, National Football League, Chambers, U S Supreme Court, Court of Appeals, 9th Circuit, Florida Supreme Court, Cummings, Howe, Barrett


Case preview: Court will consider the scope of transparency under the Freedom of Information Act’s key “deliberative process” privilege

On Monday, Nov. 2, the Supreme Court will hear oral argument in U.S. Fish and Wildlife Service v. Sierra Club — a case that will define the bounds of the deliberative process privilege under the Freedom of Information Act. More broadly, the case implicates how to balance the public interest in transparency and accountability in government decision-making with the public policy of facilitating federal agencies’ ability to deliberate candidly. It will be the first case argued with Justice Amy Cone...
Tags: Featured, Supreme Court, Law, Esa, Foia, Epa, Cia, Central Intelligence Agency, Cabinet, Sierra Club, National Security Archive, Wildlife Service, The Supreme Court, Interior, D C Circuit, U S Court of Appeals


Symposium: In Fulton, the court has the chance to jettison Employment Division v. Smith – and the pandemic shows why it should take it

This article is part of a symposium previewing Fulton v. City of Philadelphia. Lindsay See is solicitor general of the state of West Virginia, which joined an amicus brief on behalf of 13 states in support of the petitioners. The Supreme Court has options for how to approach this term’s clash between Philadelphia’s foster-placement policies and the religious beliefs of one of its long-standing partners. In Fulton v. City of Philadelphia, Catholic Social Services and two foster parents ask the co...
Tags: Featured, Supreme Court, Law, Congress, California, West Virginia, Philadelphia, Nevada, Smith, Ada, John Roberts, Fulton, Equal Employment Opportunity Commission, Roberts, Kavanaugh, Guadalupe



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