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Empirical SCOTUS: Advocates who drive the justices’ votes

Scholars of the Supreme Court often debate the role of lawyers in Supreme Court decision-making. For an attitudinalist, the justices’ preferences make all (or at least most of) the difference. According to this theory, justices will often vote based on their preferred policy direction, which minimizes the role of advocacy. More recent studies show that such a view, however, might obscure the impact lawyers have on Supreme Court output. Surprisingly, these two views are not necessarily mutually e...
Tags: Empirical SCOTUS


Argument analysis: Justices worry about extending California wage-and-hours laws to offshore drilling platforms

On Tuesday, the Supreme Court heard oral argument in Parker Drilling Management Service, Ltd. v. Newton, a case about whether workers employed on drilling platforms more than three miles off the coast of California are entitled to the protections of California’s more worker-friendly wage-and-hours law or whether a federal statute, the Outer Continental Shelf Lands Act, limits them to the benefits required by the Fair Labor Standards Act. The justices seemed intrigued (and occasionally frustrated...
Tags: Featured, Supreme Court, Law, Congress, California, United States, Ruth Bader Ginsburg, Newton, Paul Clement, Michael, Sonia Sotomayor, John Roberts, 9th Circuit, Interior, Roberts, Ginsburg


Argument analysis: “The last Johnson domino to fall”?

Today the Supreme Court considered “the last Johnson domino to fall” (at least potentially). The case, United States v. Davis, involves the possible implications of the Supreme Court’s 2015 decision in Johnson v. United States. Johnson invalidated the residual clause of the Armed Career Criminal Act, a statute that imposes additional punishment on persons with multiple prior convictions for “violent felonies.” Johnson held that the now-defunct residual clause of the ACCA, which defined a viol...
Tags: Featured, Supreme Court, Law, Congress, Beck, United States, Davis, Johnson, Blackstone, Sonia Sotomayor, John Roberts, Roberts, Alito, Sotomayor, Breyer, Elena Kagan


Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess?

With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court's scheduled oral argument this morning in United States v. Davis.  Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title "Who’s afraid of the categorical approach?," and it provides some context for my pop-culture reference:  Davis is the latest in a string of cases stemming from Joh...
Tags: Supreme Court, Law, United States, Davis, Johnson, Roberts, Alito, Warren Zevon, Anthony Kennedy, Kavanaugh, Davis Davis, ACCA, Gorsuch, Douglas A Berman, Dimaya, Bloomberg Law


Argument analysis: Justices grapple with immoral and scandalous trademarks

On Monday, the Supreme Court considered the intersection of free speech and trademark law when it addressed the constitutionality of prohibiting trademark registration for offensive trademarks. This case arose in the aftermath of Matal v. Tam. In Tam, the court struck down the Lanham Act’s prohibition on registration of disparaging trademarks, holding that the ban constituted viewpoint discrimination in violation of the First Amendment. The question before the court on Monday was whether the pro...
Tags: Featured, Supreme Court, Law, Congress, California, George Carlin, Miller, Times Square, Tam, Sonia Sotomayor, Stewart, John Roberts, Roberts, Alito, PTO, U S Patent and Trademark Office


"If this is held to be unconstitutional, what is going to happen with whatever list of really dirty words still exist and all of their variations?"

"There's going to be a mad scramble by people to register these marks. And the ones who get there first are going to have exclusive -- they're not unlimited. What's going to -- there's going to be -- those who get there first are going to be the ones who have these."Asked Justice Alito in yesterday's oral argument in Iancu v. Brunetti (PDF), challenging the Patent and Trademark office's rejection of the trademark "Fuct."By the way, no one in the transcript ever says "Fuct" or "fuck" or whatever ...
Tags: Meat, Supreme Court, Law, Intellectual Property, Nina Totenberg, Alito, Unsaid Things, Ann Althouse, Dirty Words, Iancu, Fuct, Brunetti PDF


Fooey on the Draft

Iancu v. Brunetti (Supreme Court 2019) [Oral Arg Transcript] In this case, the Federal Circuit held that the prohibition on registering “immoral” or “scandalous” marks is a facial violation of a registrant’s First Amendment free speech rights.  Here, Brunetti is seeking to register the mark “FUCT,” which the solicitor identified as a close homonym of “the paradigmatic word of profanity in our language.” Oral arguments were held on April 15 before the nine Supreme Court justices. In the case bef...
Tags: Supreme Court, Law, California, Uspto, Patent, Tam, Cohen, Coast Guard, Roberts, Ginsburg, Alito, PTO, Sotomayor, Breyer, Sommer, Kavanaugh


A “view” from the courtroom: Dangling past participles

The first case for argument today involves the highly provocative trademark, “FUCT,” for a line of “streetwear” founded by Erik Brunetti in California in 1990. Brunetti’s lawyer, John Sommer, promised in his merits brief that references to “vulgar terms” will be not be necessary during oral arguments, or if necessary, “the discussion will be purely clinical, such as when medical terms are discussed.” Erik Brunetti seated in courtroom for argument (Art Lien) At the end of the hour, he will ...
Tags: UK, Featured, Supreme Court, Law, Congress, California, Walmart, George Carlin, Quentin Tarantino, Donald Trump, Ruth Bader Ginsburg, Samuel L Jackson, Carlin, Jules, Tam, Stewart


A Vulgar Term Goes Unmentioned as It Gets Its Day in Court

The Supreme Court seemed torn about whether the government may refuse to register a trademark for a word evoking a profanity.
Tags: News, Supreme Court, Alito, Trademarks and Trade Names, Inventions and Patents, Supreme Court (US, Indecency, Obscenity and Profanity, Samuel A Jr


Jewels of Wisdom from Court Finding California Magazine Ban Unconstitutional

Jewels of Wisdom from Court Finding California Magazine Ban Unconstitutional U.S.A. –-(Ammoland.com)- On 29 March, 2019, Judge Roger T. Benitez granted  a motion for summary judgement against California Attorney General Xavier Becerra in . California's Byzantine regulations and bans on firearms magazines of over 10 round capacity were ruled unconstitutional under the Second and Fourteenth Amendments of the United States Constitution. I have read the decision by Judge Benitez. It is well wort...
Tags: England, Guns, Supreme Court, Congress, California, Senate, Massachusetts, Ray Bradbury, Los Angeles, Department Of Defense, United States, Arizona, Department Of Justice, Berkeley, Miller, Trump


Argument preview: Who’s afraid of the categorical approach?

Next Wednesday, the Supreme Court will hear argument in United States v. Davis. Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness. ACCA imposes additional punishment on certain individuals convicted of being a felon in possession of a firearm. That crime typically carries a maximum of 10 years’ imprisonment. ACCA imposes a 15-y...
Tags: Featured, Supreme Court, Law, United States, Davis, Johnson, Thomas, Alito, Dean, Stephen Breyer, Elena Kagan, Clarence Thomas, Samuel Alito, Anthony Kennedy, Davis Davis, United States the Supreme Court


The Company We No Longer Keep

For the symposium on Neal Devins and Lawrence Baum's new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).Linda Greenhouse             Two texts, a quarter century apart, frame the issue under discussion in this symposium. In 1986, shortly before becoming Chief Justice, Justice William Rehnquist published an article he titled “Constitutional Law and Public Opinion.”   [20 Suffolk U. L. Rev. 753, 768 (1986)]   Public opinion inevita...
Tags: Post, Justice, Supreme Court, Washington Post, Washington, Court, Yale, Aclu, Kaiser, Republican Party, Republican, Ruth Bader Ginsburg, Wall Street Journal, Ucla, Branding, Guest Blogger


Empirical SCOTUS: Is Kavanaugh as conservative as expected?

On Monday, April 1, 2019, the Supreme Court decided the case Bucklew v. Precythe, with the five conservative justices in the majority and the four liberals in dissent. To some, including legal scholar and CNN analyst Steve Vladeck, this ruling ushered in a new conservative court without the moderating anchor of Justice Anthony Kennedy. Going even further, Slate’s Mark Joseph Stern referred to the decision as “beyond appalling,” while Think Progress’ Ian Millhiser described it as “the most bloodt...
Tags: Supreme Court, Law, Cnn, United States, Davis, Nielsen, Smith, Donald Trump, Ruth Bader Ginsburg, Delaware, Kennedy, Sanders, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts


Rancor and Raw Emotion Surface in Supreme Court Death Penalty Ruling

In a 5-to-4 decision, the justices ruled against an inmate with a rare medical condition and debated the ground rules for capital punishment.
Tags: News, Capital punishment, Russell, Alito, Sonia, Sotomayor, Breyer, Kavanaugh, Bucklew, Gorsuch, Stephen G, Decisions and Verdicts, Supreme Court (US, Neil M, Constitution (US, Eighth Amendment (US Constitution


SCOTUS stays Texas execution because condemned was denied Buddhist spiritual advisor in execution chamber

As reported in this local article, "hours after he was to be executed for his role in a notorious 19-year-old crime, Texas death row prisoner Patrick Murphy won a rare stay from the U.S. Supreme Court based on his request to have a Buddhist spiritual adviser next to him in the death chamber."  Here is more: The condemned man, one of the last surviving members of the so-called 'Texas 7' crew of prison escapees, lobbed a long-shot bid for reprieve earlier this week when his attorneys raised relig...
Tags: Texas, Supreme Court, Law, Christian, Houston, State, Buddhist, U S Supreme Court, Murphy, Alito, Clarence Thomas, Patrick Murphy, Kavanaugh, Texas Department of Criminal Justice, Douglas A Berman, David Dow


Argument analysis: Justices navigating between different precedential paths on punitive damages for maritime personal injury

The Supreme Court heard oral argument yesterday in The Dutra Group v. Batterton, a maritime case that asks whether a Jones Act seaman can recover punitive damages in a personal-injury suit based on the unseaworthiness of a vessel on which he was working. Seven of the justices questioned one or both attorneys but, with a few exceptions, did not clearly signal a likely inclination. The argument did suggest that some division is likely. Not only does the issue involve a split among various circuit ...
Tags: Featured, Supreme Court, Law, Congress, Oregon, Ruth Bader Ginsburg, Miles, Sonia Sotomayor, Antonin Scalia, John Roberts, Roberts, Townsend, Ginsburg, Waxman, Alito, Sotomayor


Argument analysis: Justices struggle with whether the Hobbs Act is ordinary or extraordinary administrative law

Administrative law nerds anxiously await the term’s main event tomorrow: argument in Kisor v. Wilkie, in which the Supreme Court will consider whether to overturn Auer deference to agency regulatory interpretations. But yesterday brought us an administrative law undercard: argument in PDR Network v. Carlton & Harris Chiropractic. This undercard did not disappoint. Carter G. Phillips for petitioners (Art Lien) The question in PDR Network is whether the Hobbs Act strips district courts of ju...
Tags: Featured, Fcc, Supreme Court, Law, Congress, United States, Federal Communications Commission, Commission, Sonia Sotomayor, APA, John Roberts, Phillips, Alito, U S Court of Appeals, Stephen Breyer, Breyer


A “view” from the courtroom: From the Federal Register to the Stanley Cup

Today the Supreme Court will hear arguments in two cases, including one in which the justices will have some fun with the Federal Register, the dry, daily publication that lists proposed and final regulations. After arguments, the justices will move immediately to their private conference room, not to discuss cases but to spend a few minutes with the Stanley Cup, the venerable trophy for professional hockey. Glenn L. Hara for respondent (Art Lien) This is a big week for partisan gerrymande...
Tags: Post, Featured, Fcc, Supreme Court, Law, Washington Post, Washington, White House, New York City, United States, Bob, NHL, Major League Baseball, National Hockey League, Paul Clement, Federal Register


Argument analysis: Justices seem receptive to inmate’s juror-discrimination claims

The Supreme Court heard oral argument yesterday in the case of an African-American death-row inmate in Mississippi who was convicted by a jury that included just one African-American juror. The inmate, Curtis Flowers, argues that the jury selection in his case violates the Constitution – especially because the lead prosecutor had a long history of eliminating potential African-American jurors from the jury pool. After nearly an hour of oral argument that included the first questions by Justice C...
Tags: Featured, Mississippi, Supreme Court, Law, Kentucky, Davis, Evans, Johnson, Flowers, John Roberts, Roberts, Howe, Alito, Mississippi Supreme Court, Sotomayor, Stephen Breyer


A “view” from the courtroom: Trials of Mississippi

Today will bring an intense hour of argument about race in jury selection in the case of a Mississippi man who has been tried six times by the same prosecutor, which will culminate in a series of short questions by Justice Clarence Thomas, his first during oral argument in three years. But first, there are a couple of lighter moments. Justice Thomas questions petitioner’s lawyer in Flowers v. Mississippi (Art Lien) Chief Justice John Roberts announces that Justice Stephen Breyer has the co...
Tags: Google, Featured, Mississippi, Supreme Court, Law, Washington, Kentucky, Walmart, United States, New Jersey, Davis, Manhattan, Evans, Nielsen, Johnson, Flowers


Empirical SCOTUS: Is the court tracking right or Roberts left?

Although Supreme Court justices’ votes are not purely the product of ideological preferences, some of the most important cases the justices decide come down to 5-4 splits along ideological lines. This was during the 2017 Supreme Court term. Even though Chief Justice John Roberts was in the conservative camp for many of these split decisions last term, he voted with the court’s liberals in Artis v. District of Columbia and authored the majority opinion, which was joined by the court’s liberal j...
Tags: Supreme Court, Law, United States, District Of Columbia, Thomas, John Roberts, Roberts, Roberts Court, Alito, Carpenter, William Rehnquist, Shelby County, Samuel Alito, Anthony Kennedy, Artis, Sandra Day O'Connor


Opinion analysis: Justices uphold broad interpretation of immigration detention provision

In Nielsen v. Preap, four justices joined Justice Samuel Alito yesterday to adopt an expansive interpretation of a mandatory-immigration-detention statute. In Demore v. Kim, in 2003, the Supreme Court interpreted 8 U.S.C. § 1226(c) to require detention (without bond hearings) for the broad class of potentially removable immigrants identified in the statute. With their decision in Nielsen v. Preap, the Supreme Court further broadened this mandatory-detention provision to cover immigrants who, res...
Tags: Featured, Supreme Court, Law, Congress, Dhs, Kim, Nielsen, Department Of Homeland Security, Thomas, John Roberts, Roberts, Alito, Stephen Breyer, Breyer, Elena Kagan, Samuel Alito


Can You Guess Which Law Schools Have The Best LSAT Scores? See Also

The Best Of The LSAT List Looks Pretty Familiar: But you know you still want to read it. The Poor Kids At Cardozo Law School: Elevators really aren't their friends. Biglaw V. Biglaw: The battle over contingency fees. A Lesson On Adverbs By Justice Alito: Who cares how the law is actually supposed to work anyhow? Suspicious Package Shuts Down Federal Courthouse:Big backup in Rochester.
Tags: Law, Alito, Cardozo Law School, See Also


Argument analysis: Sorting out a thorny statute-of-limitations question in False Claims Act case

The Supreme Court engaged in a relatively lively argument today over a thorny issue of statutory interpretation under the False Claims Act: how two separate statute-of-limitations provisions apply to whistleblower, or “qui tam,” actions when the federal government has not intervened in a suit brought by a private party, or relator. “These types of actions are exceptional in many ways,” Chief Justice John Roberts observed about the qui tam suits brought under the 1863 statute that was meant to ba...
Tags: Featured, Supreme Court, Law, Congress, Iraq, Afghanistan, United States, Fca, Graham, Hunt, Sonia Sotomayor, John Roberts, Roberts, Alito, U S Court of Appeals, Samuel Alito


Immigrants Facing Deportation Must Be Detained After Release From Criminal Custody, Justices Rule

Immigrants convicted of some crimes may be detained even years after their release, the Supreme Court says; the law does not allow them to seek bail.
Tags: News, Supreme Court, Deportation, Illegal Immigration, American Civil Liberties Union, Alito, Homeland Security Department, Breyer, Kavanaugh, United States Politics and Government, Stephen G, Supreme Court (US, Immigration Detention, Samuel A Jr, Brett M


Argument analysis: Justices divided in Virginia racial-gerrymandering case

The Supreme Court heard oral argument today in a challenge to the map drawn in 2011 for Virginia’s House of Delegates. A group of African-American voters allege that the state legislature engaged in racial gerrymandering – that is, it relied too much on race when it drew 11 of the state’s districts, which would violate the Constitution. But the state legislators defending the map argue that, although race was one of the factors that the legislature considered, it wasn’t the only one. After rough...
Tags: Featured, Supreme Court, Law, Virginia, House, Norfolk, Republican, Paul Clement, Democratic, Sonia Sotomayor, House of Delegates, Roberts, Howe, Alito, Virginia Supreme Court, Sotomayor


The Court and the Cross

How far is the Supreme Court willing to open the public square to more overtly religious expression? A pending case may tell us.
Tags: News, Supreme Court, United States, Freedom Of Religion, Marshall, Thomas, Roberts, Alito, Clarence, Cross, Kavanaugh, Gorsuch, Hobby Lobby Stores Inc, Rehnquist, William H, Decisions and Verdicts


Friday round-up

Amy Howe reports for this blog, in a post that first appeared at Howe on the Court, that yesterday Justices Samuel Alito and Elena Kagan testified about the Supreme Court’s budget at a congressional hearing, “field[ing] questions about cameras in the courtroom, law clerk diversity, partisan attacks on the judiciary, and the #MeToo movement.” Jess Bravin reports for that, according to Kagan, “Chief Justice John Roberts is weighing whether to create a code of conduct for members of the Supreme C...
Tags: Supreme Court, Law, Washington Post, Court, Indiana, Round-up, John Roberts, Jeffrey Toobin, Cato Institute, Robert Barnes, Howe, Jess Bravin, Alito, Elena Kagan, Kagan, Heritage Foundation


Funding the one percent

Justices Samuel Alito and Elena Kagan appeared this afternoon before the Subcommittee on Financial Services and General Government of the House Committee on Appropriations. They were invited to discuss the Supreme Court’s budget requirements for fiscal year 2020, but they also fielded questions about cameras in the courtroom, law clerk diversity, partisan attacks on the judiciary, and the #MeToo movement. Perhaps most notably, Kagan disclosed that Chief Justice John Roberts is studying a code ...
Tags: Featured, Supreme Court, Law, Congress, Donald Trump, Bishop, Calif, John Roberts, Roger Stone, Roberts, Howe, Torres, Granger, Alito, Elena Kagan, Kagan


Symposium: In the Louisiana abortion case, maybe the best defense is a good offense

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at  dorfonlaw.org . Chief Justice John Roberts surprised some observers when he joined his four more liberal colleagues to grant a stay of the decision by the U.S. Court of Appeals for the 5th Circuit in . The stay blocked Louisiana’s law requiring doctors performing abortions to have admitting privileges at local hospitals. The petitioners argued that the Louisiana law was substantially similar to the Tex...
Tags: Health, Texas, Featured, Supreme Court, Law, Senate, Court, Mitch McConnell, Nebraska, Knox, Louisiana, SEIU, Cornell University, Trump, Antonin Scalia, John Roberts