Posts filtered by tags: Gorsuch[x]


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, Merits Cases

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: Douglas A. Berman

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, Merits Cases

Argument preview: Must an unauthorized immigrant in possession of a firearm know he is in the country illegally?

When the federal government prosecutes someone not legally in the United States for possessing a firearm, must the government prove that the person actually knew he was not legally in the country? Or need the government merely prove that the person knew he possessed the firearm? The U.S. Supreme Court will puzzle over this classic, yet novel, statutory question of “mens rea,” or criminal intent, when it hears argument on April 23 in Rehaif v. United States. In August 2013, Hamid Mohamed Ahmed A...
Tags: Featured, Supreme Court, Law, Congress, Fbi, United States, United Arab Emirates, Melbourne, Armed Forces, U S Supreme Court, U S Court of Appeals, 11th Circuit, Florida Tech, Gorsuch, Melbourne Florida, Merits Cases

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

Ohio’s Fetal Heartbeat Abortion Ban Is Latest Front in Fight Over Roe v. Wade

Anti-abortion activists have passed similar measures in several states with the hope that a legal fight could upend Supreme Court precedent.
Tags: News, Supreme Court, Abortion, Ohio, Mike, John R, Kasich, Kavanaugh, DeWine, Gorsuch, Law and Legislation, Neil M, Roe v Wade (Supreme Court Decision, Brett M

Thursday round-up

In an op-ed for the Los Angeles Times, Brianna Cea and Thomas Wolf weigh in on Department of Commerce v. New York, a challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census, arguing that, contrary to the administration’s assertion, “[n]ever in the census’ 230-year history has the decennial questionnaire asked for the citizenship status of everyone in the country.” In the latest episode of Bloomberg Law’s Cases and Controversies podcast, “Kimberly R...
Tags: New York, Supreme Court, Law, Washington Post, Wall Street, Alabama, Los Angeles, DOE, Trump, Round-up, U S Supreme Court, Cato, Cato Institute, Hugh Hewitt, Andrew Cohen, Department of Commerce

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 Political Theory of a Balanced Bench

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).The Company They Keep is engagingly written, and thoroughly researched. Devins and Baum (DB) focus on what might be dubbed the “puzzle of Supreme Court partisanship.” In the mid-20th century, many justices trended toward more liberal stances, acknowledging and sometimes conceding the demands of rising social movements. By the 2010s...
Tags: Supreme Court, Obama, US, New York Times, Mitch McConnell, Madison, Branding, Georgetown, Linda Greenhouse, Garland, Whitehouse, Baum, Wechsler, Gorsuch, Neal Devins, Devins

The Supreme Court as the Aristocratic Element of a Mixed Regime

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).John O. McGinnisIn The Company They Keep: How Partisan Divisions Came to the Supreme Court, Neal Devins and Lawrence Baum provide a compelling, elegant, and permanent addition to the political science of the Court. In their view, the Court is substantially more influenced by elite than by popular opinion. The great strength of thei...
Tags: Supreme Court, Congress, Court, Society, Harvard, United States, Ronald Reagan, Kennedy, Nlrb, Branding, Guest Blogger, Thomas, Thomas Jefferson, George, John Roberts, Scalia

Thursday round-up

At , Tony Mauro reports that “[t]he book-writing bug has bitten U.S. Supreme Court Justice Neil Gorsuch, as it has with several of his colleagues”: A “book by Gorsuch titled ‘A Republic, If You Can Keep It,’ will be published in September” and “will include eight original essays as well as a collection of Gorsuch speeches and writings.” Additional coverage comes from Patrick Gregory and others at Bloomberg Law. At Reason’s Volokh Conspiracy blog, John Stinneford writes of Monday’s decision in...
Tags: Mississippi, Maryland, Supreme Court, Law, Court, Atlantic, United States, Missouri, Flowers, Round-up, Thomas, U S Supreme Court, Montgomery County, Adam Feldman, John Stinneford, Garrett Epps

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

Book of Gorsuch speeches and writings out in September

NEW YORK (AP) — Supreme Court Justice Neil Gorsuch has a collection of speeches, writings and eight original essays coming out this fall. Crown Forum, a conservative imprint at Penguin Random House, announced Wednesday that Gorsuch’s “A Republic, If You Can Keep It” is scheduled for Sept. 10. The book’s title derives from a comment […]
Tags: New York, News, Supreme Court, Entertainment, Ap, Nation, Penguin Random House, Gorsuch, Neil Gorsuch

Opinion analysis: Court rejects per se rule on cross-examination in Social Security disability cases

The Supreme Court yesterday turned down a Social Security Disability Insurance plaintiff’s proposal to establish a per se rule effectively requiring vocational experts to turn over the data underlying their opinions in every case. Michael Biestek had asked the court to decide that testimony from such an expert who declined a request to turn over underlying data could never suffice to meet the Social Security Administration’s statutory obligation to support its decisions with “substantial evidenc...
Tags: Featured, Supreme Court, Law, Social Security, Social Security Administration, Ruth Bader Ginsburg, Sonia Sotomayor, SSA, U S Court of Appeals, Elena Kagan, Kagan, ALJ, Social Security Disability Insurance, Gorsuch, Merits Cases, Neil Gorsuch

"When an inmate contends that a state’s method of execution violates the Eighth Amendment... he must show that there is an alternative method of execution that would 'significantly reduce a substantial risk of severe pain'..."

"... but that the state has – for no good reason – refused to adopt. This requirement applies, Gorsuch explained [writing for the majority of the Supreme Court], even though Bucklew is only challenging the constitutionality of the state’s use of lethal injection to execute him, rather than the constitutionality of lethal injection more generally.... In this case... Bucklew had made only a 'bare-bones proposal' to use death by nitrogen gas, depriving the body of oxygen, as an alternative to letha...
Tags: Supreme Court, Law, Death Penalty, Torture, Clarence Thomas, Amy Howe, Bucklew, Gorsuch, Ann Althouse, SCOTUSblog

"The Eighth Amendment has never been understood to guarantee a condemned inmate a painless death. That’s a luxury not guaranteed to many people..."

"... including most victims of capital crimes. What the Eighth Amendment does guarantee is a method of execution that not 'cruel and unusual,'" said Justice Neil M. Gorsuch, announcing the decision in Bucklew v. Precythe today, reported in "Divided Supreme Court rules against death row inmate with rare condition" (WaPo).Missouri plans to use an injection of a single drug, pentobarbital, to carry out the execution of Bucklew. But he suffers from a congenital and rare disease called cavernous hema...
Tags: Supreme Court, Law, Death Penalty, Abortion, Ray, Hypocrisy, WaPo, Stephen G Breyer, Neil M Gorsuch, Bucklew, Gorsuch, Ann Althouse, Divided Supreme Court, Michael Sanders, Ray He, Precythe

Opinion analysis: Divided court rejects lethal-injection challenge by inmate with rare medical condition

Today the Supreme Court rejected a claim by a death-row inmate that executing him by lethal injection would violate the Constitution’s ban on cruel and unusual punishment because of the likelihood that he could wind up choking on his own blood. By a vote of 5-4, the court cleared the way for Russell Bucklew’s execution, in an opinion that at times revealed bitter divides among the justices. The case was not a broad challenge to the use of lethal injection as a method of execution for all prisone...
Tags: Featured, Supreme Court, Law, Alabama, Missouri, Muslim, Louisiana, Oklahoma, Kennedy, Sonia Sotomayor, Howe, Sotomayor, Stephen Breyer, Breyer, Clarence Thomas, Anthony Kennedy

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

Splitting 5-4 along traditional ideological lines, SCOTUS rejects Missouri inmate's challenge to lethal injection protocol

The Supreme Court this morning handed down its opinion in an execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here).  The Court split 5-4 in favor of the state of Missouri, and here is how Justice Gorsuch's opinion for the Court gets started: Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes.  He acknowledges that the U.S. Constitution permits a sentence of execution for his crimes.  He a...
Tags: Supreme Court, Law, Court, Missouri, Thomas, State, Sotomayor, Breyer, Kavanaugh, Bucklew, Eighth Circuit, Gorsuch, Douglas A Berman, State of Missouri, Russell Bucklew

Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

I noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing. As reported in this prior post, I have a great student, Jim McGibbon, who...
Tags: Supreme Court, Law, Washington, Oregon, Court, US, United States, New Jersey, Thomas, Jim, Ginsburg, Blakely, Sotomayor, Kagan, Kavanaugh, Amy Howe

Argument analysis: Justices divided on agency deference doctrine

The Supreme Court heard oral argument this morning in a dispute over veterans’ benefits that could become one of the most significant cases of the term. Although the case arose when the Department of Veterans Affairs refused to give James Kisor, who served as a Marine during the Vietnam War, benefits for his post-traumatic-stress disorder dating back to 1983, it has morphed into something much bigger. Kisor and his lawyers have asked the justices to overrule a doctrine that Chief Justice John Ro...
Tags: Featured, Supreme Court, Law, Congress, Court, Marine, Va, Fda, Ruth Bader Ginsburg, Francisco, Chamber of Commerce, Robbins, Sonia Sotomayor, John Roberts, Hughes, Howe

Limiting Agency Power, a Goal of the Right, Gets Supreme Court Test

Justice Stephen G. Breyer said, half-joking, that he feared “the greatest judicial power grab since Marbury v. Madison” as the justices took on an issue they saw as momentous.
Tags: News, Veterans, Francisco, Madison, Elena, Breyer, Stephen G Breyer, Kagan, Marbury, Gorsuch, Regulation and Deregulation of Industry, Stephen G, Supreme Court (US, Suits and Litigation (Civil, Neil M, Noel J

Justices Weaponize Redistricting Reform Against Partisan Gerrymandering Foes

Conservative justices on the Supreme Court and Republican lawyers love redistricting reform as an argument against the court reining in extreme partisan gerrymandering. Justices Neil Gorsuch and Brett Kavanaugh on Tuesday both brought up the push in several states to create independent redistricting commissions and other measures to limit legislators from drawing extremely unfair maps. Paul Clement — a former U.S. solicitor general in the George W. Bush administration   representing North Car...
Tags: News, Maryland, Supreme Court, Congress, Colorado, Senate, Gop, House, Arizona, Redistricting, Dc, Republican, North Carolina, George W Bush, Paul Clement, Voting Rights

Argument analysis: Justices divided and hard to read on partisan gerrymandering

Today the Supreme Court heard oral argument in a pair of cases that could prove to be among the most consequential of the term. The cases involve allegations that state officials engaged in unconstitutional partisan gerrymandering – that is, they went too far in taking politics into account – when they drew election maps in North Carolina and Maryland. After over two hours of debate this morning, there were clear divides among some of the justices, but it was much less clear how the court is lik...
Tags: Featured, Maryland, Supreme Court, Law, Congress, Court, Pennsylvania, Wisconsin, Republican, North Carolina, Paul Clement, Steven, John Roberts, Roberts, Howe, Sullivan

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

Another useful reminder of the need for more criminal justice diversity on the federal bench

Long-time readers know I have been talking a long time about the prosecutorial tilt that impacts who gets nominated and confirmed for seats on the US Supreme Court and lower federal courts.  Encouragingly, the need for more balance in the courts is getting more attention as criminal justice reform continues to garner attention (especially among would-be Democratic Prez candidates).   Consider, for example, this piece on this topic at Slate by Kyle Barry under the headline "Democratic Presidentia...
Tags: Supreme Court, Law, Obama, Congress, Washington Post, America, Barack Obama, US supreme court, Trump, Sonia Sotomayor, Kelly, U S District Court, Donald Trump Trump, Gideon, Samuel Alito, Jane Kelly

Supreme Court OKs asbestos suits against non-asbestos manufacturers

Tuesday’s 6-3 decision in Air & Liquid Systems v. DeVries took an expansive view of asbestos liability in the maritime context. I discuss at Cato at Liberty: …By requiring makers of components to pay for damages they did not cause in the name of warnings that the U.S. Navy almost certainly would not have heeded, the Court yields to an impulse to round up deep pockets lest a sympathetic set of litigants otherwise go uncompensated…. In his dissent, Gorsuch points out that [the new standard formul...
Tags: Supreme Court, Law, Uncategorized, Asbestos, U S Navy, Gorsuch, Devries, Brett Kavanaugh, Air Liquid Systems

Opinion analysis: Washington state motor-fuel tax violates Yakama Treaty

With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents, Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreemen...
Tags: Featured, Supreme Court, Law, Washington, United States, Ruth Bader Ginsburg, Thomas, State, Sonia Sotomayor, John Roberts, Roberts, Ginsburg, Stephen Breyer, Breyer, Elena Kagan, Clarence Thomas